EXHIBIT 99.3
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
X. XXXXX-FOOD INTERNATIONAL LTD.
WARRANT
Warrant No. Original Issue Date: October 4, 2006
X. Xxxxx-Food International Ltd., an Israeli company (the "COMPANY"),
hereby certifies that, for value received, _______________ or its registered
assigns in accordance herewith (the "HOLDER"), is entitled to purchase from the
Company up to a total of ___________(1) shares of Common Stock (each such share,
a "WARRANT SHARE" and all such shares, the "WARRANT SHARES"), at any time and
from time to time from and after the 6 month anniversary of the Original Issue
Date and through and including October 4, 2009 (the "EXPIRATION DATE"), and
subject to the following terms and conditions:
1. DEFINITIONS. As used in this Warrant, the following terms shall have the
respective definitions set forth in this Section 1. Capitalized terms that are
used and not defined in this Warrant that are defined in the Purchase Agreement
(as defined below) shall have the respective definitions set forth in the
Purchase Agreement.
"BUSINESS DAY" means any day except Saturday, Sunday, Friday (except as
modified for purposes of Section 5(a)) and any day that is a federal legal
holiday in the United States or a day on which banking institutions in the State
of New York or the city of Tel Aviv are authorized or required by law or other
government action to close.
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(1) A number of shares as equals 30% of the Shares issuable to such investor at
Closing under the Purchase Agreement.
"COMMON STOCK" means the ordinary shares of the Company, NIS 0.10 par value
per share, and any securities into which such ordinary shares may hereafter be
reclassified.
"EXERCISE PRICE" means $8.00, subject to adjustment in accordance with
Section 9.
"FUNDAMENTAL TRANSACTION" means any of the following: (1) the Company
effects any merger or consolidation of the Company with or into another Person,
(2) the Company effects any sale of all or substantially all of its assets in
one or a series of related transactions, (3) any tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for
other securities, cash or property, or (4) the Company effects any
reclassification of the Common Stock or any compulsory share exchange pursuant
to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property.
"ORIGINAL ISSUE DATE" means the Original Issue Date first set forth on the
first page of this Warrant.
"NEW YORK COURTS" means the state and federal courts sitting in the City of
New York, Borough of Manhattan.
"PURCHASE AGREEMENT" means the Securities Purchase Agreement, dated
September 20, 2006, to which the Company and the original Holder are parties.
"TRADING DAY" means (i) a day on which the Common Stock is traded on a
Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock
is not listed on a Trading Market (other than the OTC Bulletin Board), a day on
which the Common Stock is traded in the over-the-counter market, as reported by
the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any
Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding to its functions
of reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
"VWAP" means on any particular Trading Day or for any particular period,
the volume weighted average trading price per share of Common Stock on such date
or for such period as reported by Bloomberg L.P., or by any successor performing
similar functions.
2. REGISTRATION OF WARRANT. The Company shall register this Warrant upon
records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
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3. REGISTRATION OF TRANSFERS. The Company shall register the transfer of
any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Company at its address specified herein. Upon any such registration or
transfer, a new Warrant to purchase Common Stock, in substantially the form of
this Warrant (any such new Warrant, a "NEW WARRANT"), evidencing the portion of
this Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance by such transferee of all
of the rights and obligations of a holder of a Warrant. No New Warrant shall
represent the right to purchase less than 5,000 ordinary shares of Common Stock.
4. EXERCISE AND DURATION OF WARRANTS.
(a) This Warrant shall be exercisable by the registered Holder at any
time and from time to time from and after the 6 month anniversary of the
Original Issue Date and through and including the Expiration Date. At 6:30
p.m., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no
value. Except as provided in Section 4(b) below, the Company may not call
or redeem any portion of this Warrant without the prior written consent of
the affected Holder.
(b) Subject to the provisions of this Section 4(b), if at any time
following the one-year anniversary of the Original Issue Date: (i) the VWAP
of the Common Stock for any 20 Trading Day period, following the such
one-year anniversary is equal to or greater than $16.00 (subject to
adjustment pursuant to Section 9), (ii) the Warrant Shares are either
registered for resale pursuant to an effective registration statement
naming the Holder as a selling stockholder thereunder (and the prospectus
thereunder is available for use by the Holder as to all Warrant Shares) or
freely transferable without volume restrictions pursuant to Rule 144(k)
promulgated under the Securities Act, as determined by counsel to the
Company pursuant to a written opinion letter addressed and in form and
substance reasonably acceptable to the Holder and the transfer agent for
the Common Stock, during the entire 20 Trading Day period referenced in (i)
above through the expiration of the Call Date as set forth in the Company's
notice pursuant to this Section (the "CALL CONDITION PERIOD"), and (iii)
the Common Stock shall at all times be listed or quoted on a Trading
Market, then, subject to the conditions set forth in this Section, the
Company may, in its sole discretion, elect to require the exercise of up to
all of the then unexercised portion of this Warrant, on the date that is
the fifth Business Day after written notice thereof (a "CALL NOTICE") is
received by the Holder (such fifth Business Day shall be known as the "CALL
DATE") at the address last shown on the records of the Company for the
Holder or given by the Holder to the Company for the purpose of notice;
PROVIDED, that the conditions to giving such notice must be in effect at
all times during the Call Condition Period (other than as to clause (i)
above which only needs to be satisfied up to the time of the delivery of
the Call Notice) or any such Call Notice shall be null and void. The
Company and the Holder agree that, if and to the extent Section 11 of this
Warrant would restrict the ability of the Holder to exercise this Warrant
in the event of a delivery of a Call Notice, then notwithstanding anything
to the contrary set forth in the Call Notice, the Call Notice shall be
deemed automatically amended to apply only to such portion of this Warrant
as may be exercised by the Holder by the Call Date in accordance with such
Section. The Holder will promptly (and, in any event, prior to the Call
Date) notify the Company in writing following receipt of a Call Notice if
Section 11 would restrict its exercise of the Warrant, specifying therein
the number of Warrant Shares so restricted. The Company covenants and
agrees that it will honor all Exercise Notices tendered through 6:30 p.m.
(New York City time) on the Call Date. Under no circumstances (even if
Section 11 would require the amendment of a Call Notice) may the Company
deliver more than one Call Notice in any 90 calendar day period. Subject to
the provisions of this Section 4(b), Warrant Shares subject to a valid Call
Notice for which Exercise Notices are not received by the expiration of the
Call Date shall from and after the Call Date become null and void and not
subject to future exercise.
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5. DELIVERY OF WARRANT SHARES.
(a) To effect exercises hereunder, the Holder shall not be required to
physically surrender this Warrant unless the aggregate Warrant Shares
represented by this Warrant is being exercised. Unless otherwise directed
in writing by the Company, Holders shall pay the Exercise Price in
immediately available funds to the account set forth in Annex A hereto (if
(and only if) such account cannot receive funds in accordance with such
instructions, Holders may deliver the Exercise Price via certified or bank
check). Upon delivery of the Exercise Notice (in the form attached hereto)
to the Company (with the attached Warrant Shares Exercise Log) at its
address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to
purchase hereunder, the Company shall promptly (but in no event later than
three Trading Days after the Date of Exercise (as defined herein)) issue
and deliver to the Holder, a certificate for the Warrant Shares issuable
upon such exercise, which, unless otherwise required by the Purchase
Agreement, shall be free of restrictive legends. Upon request of the
exercising Holder, the Company shall, if legends are not required to be
placed on certificates representing Warrant Shares, credit the aggregate
number of Warrant Shares to which such Holder is entitled pursuant to such
exercise to the Holder's or its designee's balance account with DTC through
its Deposit Withdrawal Agent Commission system (or the successor thereto,
if any). A "DATE OF EXERCISE" means the date on which the Holder shall have
delivered to the Company: (i) the Exercise Notice (with the Warrant
Exercise Log attached to it), appropriately completed and duly signed (for
the purposes of this Section, Friday shall be deemed a Business Day,
notwithstanding anything in this Warrant to the contrary) and (ii) if such
Holder is not utilizing the cashless exercise provisions set forth in this
Warrant, payment of the Exercise Price for the number of Warrant Shares so
indicated by the Holder to be purchased.
(b) If by the third Trading Day after a Date of Exercise the Company
fails to deliver the required number of Warrant Shares in the manner
required pursuant to Section 5(a), then the Holder will have the right to
rescind such exercise.
(c) If by the third Trading Day after a Date of Exercise the Company
fails to deliver the required number of Warrant Shares in the manner
required pursuant to Section 5(a), and if after such third Trading Day and
prior to the receipt of such Warrant Shares, the Holder purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a "BUY-IN"), then the Company
shall (1) pay in cash to the Holder the amount by which (x) the Holder's
total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required
to deliver to the Holder in connection with the exercise at issue by (B)
the closing bid price of the Common Stock on the Date of Exercise and (2)
at the option of the Holder, either reinstate the portion of the Warrant
and equivalent number of Warrant Shares for which such exercise was not
honored or deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of
the Buy-In.
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(d) The Company's obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same,
any waiver or consent with respect to any provision hereof, the recovery of
any judgment against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any breach
or alleged breach by the Holder or any other Person of any obligation to
the Company or any violation or alleged violation of law by the Holder or
any other Person, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. Nothing herein shall limit a Xxxxxx's
right to pursue any other remedies available to it hereunder, at law or in
equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company's failure to timely
deliver certificates representing Warrant Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
6. CHARGES, TAXES AND EXPENSES. Issuance and delivery of Warrant Shares
upon exercise of this Warrant shall be made without charge to the Holder for any
issue or transfer tax, withholding tax, transfer agent fee or other incidental
tax or expense in respect of the issuance of such certificates, all of which
taxes and expenses shall be paid by the Company; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the registration of any certificates for Warrant Shares
or Warrants in a name other than that of the Holder. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise hereof.
7. REPLACEMENT OF WARRANT. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity (which shall not include a surety bond), if requested.
Applicants for a New Warrant under such circumstances shall also comply with
such other reasonable regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a New Warrant is requested as
a result of a mutilation of this Warrant, then the Holder shall deliver such
mutilated Warrant to the Company as a condition precedent to the Company's
obligation to issue the New Warrant.
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8. RESERVATION OF WARRANT SHARES. The Company covenants that it will at all
times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from preemptive rights or any
other contingent purchase rights of Persons other than the Holder (taking into
account the adjustments and restrictions of Section 9). The Company covenants
that all Warrant Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued and fully paid and nonassessable.
9. CERTAIN ADJUSTMENTS. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9.
(a) STOCK DIVIDENDS AND SPLITS. If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that is
payable in shares of Common Stock, (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, or (iii) combines outstanding
shares of Common Stock into a smaller number of shares, then in each such
case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the
number of shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
(b) FUNDAMENTAL TRANSACTIONS. If, at any time while this Warrant is
outstanding there is a Fundamental Transaction, then the Holder shall have
the right thereafter to receive, upon exercise of this Warrant, the same
amount and kind of securities, cash or property as it would have been
entitled to receive upon the occurrence of such Fundamental Transaction if
it had been, immediately prior to such Fundamental Transaction, the holder
of the number of Warrant Shares then issuable upon exercise in full of this
Warrant (the "ALTERNATE CONSIDERATION"). For purposes of any such exercise,
the determination of the Exercise Price shall be appropriately adjusted to
apply to such Alternate Consideration based on the amount of Alternate
Consideration issuable in respect of one share of Common Stock in such
Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash
or property to be received in a Fundamental Transaction, then the Holder
shall be given the same choice as to the Alternate Consideration it
receives upon any exercise of this Warrant following such Fundamental
Transaction. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this paragraph (b) and
insuring that the Warrant (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
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(c) NUMBER OF WARRANT SHARES. Simultaneously with any adjustment to
the Exercise Price pursuant to this Section 9, the number of Warrant Shares
that may be purchased upon exercise of this Warrant shall be increased or
decreased proportionately, so that after such adjustment the aggregate
Exercise Price payable hereunder for the adjusted number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately
prior to such adjustment.
(d) CALCULATIONS. All calculations under this Section 9 shall be made
to the nearest cent or the nearest 1/100th of a share, as applicable. The
number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of
Common Stock.
(e) NOTICE OF ADJUSTMENTS. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company at its expense will promptly
compute such adjustment in accordance with the terms of this Warrant and
prepare a certificate setting forth such adjustment, including a statement
of the adjusted Exercise Price and adjusted number or type of Warrant
Shares or other securities issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments
and showing in detail the facts upon which such adjustment is based. Upon
written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company's Transfer Agent.
(f) NOTICE OF CORPORATE EVENTS. If the Company (i) declares a dividend
or any other distribution of cash, securities or other property in respect
of its Common Stock, including without limitation any granting of rights or
warrants to subscribe for or purchase any capital stock of the Company or
any Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to
the Holder a notice describing the material terms and conditions of such
transaction (but only to the extent such disclosure would not result in the
dissemination of material, non-public information to the Holder) at least
10 calendar days prior to the applicable record or effective date on which
a Person would need to hold Common Stock in order to participate in or vote
with respect to such transaction, and the Company will take all steps
reasonably necessary in order to insure that the Holder is given the
practical opportunity to exercise this Warrant prior to such time so as to
participate in or vote with respect to such transaction; provided, however,
that the failure to deliver such notice or any defect therein shall not
affect the validity of the corporate action required to be described in
such notice.
10. PAYMENT OF EXERCISE PRICE. The Holder may pay the Exercise Price in one
of the following manners:
(a) CASH EXERCISE. The Holder may deliver immediately available funds;
or
(b) CASHLESS EXERCISE. If an Exercise Notice is delivered from and
after the one year anniversary of the Original Issue Date during the
Effectiveness Period and at a time when a Registration Statement permitting
the Holder to resell the Warrant Shares is not then effective or the
prospectus forming a part thereof is not then available to the Holder for
the resale of the Warrant Shares, then the Holder may notify the Company in
an Exercise Notice of its election to utilize cashless exercise, in which
event the Company shall issue to the Holder the number of Warrant Shares
determined as follows:
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X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised.
A = the average of the closing prices for the five Trading
Days immediately prior to (but not including) the Exercise
Date.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced, on
the date this Warrant was originally issued.
11. LIMITATIONS ON EXERCISE. Notwithstanding anything to the contrary
contained herein, the number of Warrant Shares that may be acquired by the
Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall
be limited to the extent necessary to insure that, following such exercise (or
other issuance), the total number of shares of Common Stock then beneficially
owned by such Holder and its Affiliates and any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder's for purposes of
Section 13(d) of the Exchange Act, does not exceed 9.99% of the total number of
issued and outstanding shares of Common Stock (including for such purpose the
shares of Common Stock issuable upon such exercise). For such purposes,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. This
provision shall not restrict the number of shares of Common Stock which a Holder
may receive or beneficially own in order to determine the amount of securities
or other consideration that such Holder may receive in the event of a
Fundamental Transaction as contemplated in Section 9 of this Warrant. This
restriction may not be waived, and notwithstanding anything to the contrary in
any Transaction Document, may not be amended by agreement of the parties.
12. NO FRACTIONAL SHARES. No fractional shares of Warrant Shares will be
issued in connection with any exercise of this Warrant. In lieu of any
fractional shares which would, otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the closing price of one
Warrant Share as reported by the applicable Trading Market on the date of
exercise.
13. NOTICES. Any and all notices or other communications or deliveries
hereunder (including, without limitation, any Exercise Notice) shall be in
writing and shall be deemed given and effective on the earliest of (i) the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Business Day, (ii) the next Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Business Day
or later than 6:30 p.m. (New York City time) on any Business Day, (iii) the
third Business Day following the date of mailing, if sent by an internationally
recognized courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. The addresses for such communications shall
be: (i) if to the Company, to 0 Xxxxx Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxxxx Xxxx,
Xxxxx, 00000 Xxxxxx, Attn: President, or to facsimile no.: 972 8 932 2277 (or
such other address as the Company shall indicate in writing in accordance with
this Section), or (ii) if to the Holder, to the address or facsimile number
appearing on the Warrant Register or such other address or facsimile number as
the Holder may provide to the Company in accordance with this Section.
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14. WARRANT AGENT. The Company shall serve as warrant agent under this
Warrant. Upon 10 calendar days' notice to the Holder, the Company may appoint a
new warrant agent. Any corporation into which the Company or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Company or any new warrant agent shall be a party or any corporation to
which the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
15. MISCELLANEOUS.
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to
any Person other than the Company and the Holder any legal or equitable
right, remedy or cause of action under this Warrant. This Warrant may be
amended only in writing signed by the Company and the Holder and their
successors and assigns.
(b) All questions concerning the construction, validity, enforcement
and interpretation of this Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York
(except for matters governed by corporate law in the State of Delaware),
without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations,
enforcement and defense of this Warrant and the transactions herein
contemplated ("PROCEEDINGS") (whether brought against a party hereto or its
respective Affiliates, employees or agents) shall be commenced exclusively
in the New York Courts. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any New York Court, or that such Proceeding
has been commenced in an improper or inconvenient forum. Each party hereto
hereby irrevocably waives personal service of process and consents to
process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under
this Warrant and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any
manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Warrant
or the transactions contemplated hereby. If either party shall commence a
Proceeding to enforce any provisions of this Warrant, then the prevailing
party in such Proceeding shall be reimbursed by the other party for its
attorney's fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
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(c) The headings herein are for convenience only, do not constitute a
part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(d) In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to
agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
(e) Prior to exercise of this Warrant, the Holder hereof shall not, by
reason of being a Holder, be entitled to any rights of a stockholder with
respect to the Warrant Shares.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its authorized officer as of the date first indicated above.
X. XXXXX-FOOD INTERNATIONAL LTD.
By: /s/ XXX XXXXXXXX
--------------------
Xxx Xxxxxxxx
Chief Financial Officer
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EXERCISE NOTICE
X. XXXXX-FOOD INTERNATIONAL LTD.
WARRANT DATED OCTOBER __, 2006
The undersigned Holder hereby irrevocably elects to purchase _____________
shares of Common Stock pursuant to the above referenced Warrant. Capitalized
terms used herein and not otherwise defined have the respective meanings set
forth in the Warrant.
(1) The undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the Warrant.
(2) The Holder intends that payment of the Exercise Price shall be made as
(check one):
____ "Cash Exercise" under Section 10
____ "Cashless Exercise" under Section 10
(3) The undersigned is an "accredited investor" as defined in Regulation D
under the Securities Act of 1933, as amended.
(4) The holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to the
holder _______________ Warrant Shares in accordance with the terms of the
Warrant.
(6) Shares of Common Stock issuable upon this exercise are directed to be
delivered electronically to the undersigned's following share account (this
election is only available if this Exercise Notice is delivered at a time when
legends are not required to be placed on Warrant Shares certificates pursuant to
the Purchase Agreement):
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(7) By its delivery of this Exercise Notice, the undersigned represents and
warrants to the Company that in giving effect to the exercise evidenced hereby
the Holder will not beneficially own in excess of the number of shares of Common
Stock (determined in accordance with Section 13(d) of the Securities Exchange
Act of 1934) permitted to be owned under Section 11 of this Warrant to which
this notice relates.
Dated: ________________ , ____ Name of Xxxxxx:
(Print) ________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
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WARRANT SHARES EXERCISE LOG
---------- ------------------------- ----------------- ---------------------
Number of Warrant
Number of Warrant Shares Number of Warrant Shares Remaining to
Date Available to be Exercised Shares Exercised be Exercised
---------- ------------------------- ----------------- ---------------------
---------- ------------------------- ----------------- ---------------------
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X. XXXXX-FOOD INTERNATIONAL LTD.
WARRANT ORIGINALLY ISSUED OCTOBER __, 2006
WARRANT NO.
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the
above-captioned Warrant to purchase ____________ shares of Common Stock to which
such Warrant relates and appoints ________________ attorney to transfer said
right on the books of the Company with full power of substitution in the
premises.
Dated: _______________, ____
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
_______________________________________
Address of Transferee
_______________________________________
_______________________________________
In the presence of:
__________________________
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