EXHIBIT 10.5
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE 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 OR OTHER
LOAN SECURED BY SUCH SECURITIES.
DHB INDUSTRIES INC.
WARRANT
Warrant No. 1072
Date of Original Issuance: May 24, 2005
DHB Industries, Inc., a Delaware corporation (the "Company"), hereby agrees
that, for value received, Xxxxx Xxxxx or his assigns (the "Holder"), is entitled
to purchase from the Company at any time and from time to time from and after
the date hereof and through and including May 24, 2009 (the "Expiration Date"),
and subject to the following terms and conditions, up to a total of 200,000
shares, 100,000 shares of which shall vest on the first anniversary date hereof
and 100,000 shares of which shall vest on each subsequent anniversary date
hereof provided the Holder is employed by the Company on such anniversary date
(as adjusted from time to time as provided in Section 8) of common stock, $0.001
par value per share (the "Common Stock"), of the Company (each such share, a
"Warrant Share" and all such shares, the "Warrant Shares") at an exercise price
(as adjusted from time to time as provided in Section 8, the "Exercise Price")
of $7.66 per Warrant Share:
1. 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 treat the registered Holder 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.
2. 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
by the Holder, 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.
3. EXERCISE AND DURATION. Subject to the provisions of Section 5, this
Warrant shall be exercisable by the registered Holder at any time and from time
to time on or after the date hereof to and including the Expiration Date. At
6:30 p.m., New York City time on the Expiration Date, the portion of this
Warrant available for exercise and not exercised prior thereto shall be and
become void and of no value, provided, that if the closing sales price of the
Common Stock on the Expiration Date is greater than 102% of the Exercise Price
on the Expiration Date, then this Warrant shall be deemed to have been exercised
in full (to the extent not previously exercised) on a "cashless exercise" basis
at 6:30 P.M. New York City time on the Expiration Date. The Company may not call
or redeem all or any portion of this Warrant without the prior written consent
of the Holder.
4. DELIVERY OF WARRANT SHARES
(a) Upon delivery of the Form of Election to Purchase attached hereto
to the Company at its address for notice set forth in Section 12 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 five Trading Days (a "Trading Day" shall be a
day on which the American Stock Exchnage is open for business) after the
Date of Exercise (as defined herein)) issue and deliver to the Holder, a
certificate for the Warrant Shares issuable upon such exercise. The Company
shall, upon request of the Holder, if available, to the Company and if the
Company's transfer agent can deliver Warrant Shares electronically through
the Depositor Trust Corporation, use its reasonable best efforts to deliver
Warrant Shares hereunder electronically through the Depository Trust
Corporation or another established clearing corporation performing similar
functions.
A "DATE OF EXERCISE" means the date on which the Holder shall have
delivered to the Company (i) the Form of Election to Purchase attached
hereto, appropriately completed and duly signed and (ii) payment of the
Exercise Price for the number of Warrant Shares so indicated by the Holder
to be purchased.
(b) If by the fifth 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 4(a), then the Holder will have the right to
rescind such exercise by written notice to the Company given prior to the
delivery of the subject Warrant Shares.
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(c) If by the fifth 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 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") (if any), 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
at the time of the obligation giving rise to such purchase obligation 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. For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with
a market price on the date of exercise totaled $10,000, under clause (1) of
the immediately preceding sentence the Company shall be required to pay the
Holder $1,000. The Holder shall provide the Company written notice setting
forth in reasonable detail (and with appropriate supporting documentation)
the calculation of the amounts payable to the Holder in respect of the
Buy-In.
(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 other provision hereof, the
recovery of any judgment against any person or entity 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 or entity of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other person or entity, 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 Holder'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 shares of Common Stock upon exercise of the Warrant as
required pursuant to the terms hereof.
5. CHARGES, TAXES AND EXPENSES. Issuance and delivery of certificates for
shares of Common Stock 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.
6. 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
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for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction (and, in the case
of mutilation, the receipt by the Holder of the mutilated Warrant) and customary
and reasonable indemnity, 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.
7. 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. 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, are duly and
validly authorized, issued and fully paid and nonassessable.
8. 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 8.
(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 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) PRO RATA DISTRIBUTIONS. If the Company, at any time while this
Warrant is outstanding, distributes to all holders of Common Stock (i)
evidences of its indebtedness, (ii) any security (other than a distribution
of Common Stock covered by the preceding paragraph), (iii) rights or
warrants to subscribe for or purchase any security, or (iv) any other asset
(in each case, "Distributed Property"), then, upon any exercise of this
Warrant thereafter, the Company shall also issue to the exercising Holder
the Distributed Property that such Xxxxxx would have been entitled to
receive in respect of the Warrant Shares for which such had the Holder been
the record holder of such Warrant Shares immediately prior to the record
date for such distribution.
(c) FUNDAMENTAL TRANSACTIONS. If, at any time while this Warrant is
outstanding: (i) the Company effects any merger or consolidation of the
Company into another person or entity, (ii) the Company effects any sale of
all or substantially all of its assets in one or a series of related
transactions, (iii) any tender offer or exchange offer (whether by the
Company or another person or entity) is completed pursuant to which holders
of Common Stock are permitted to tender or exchange their shares for other
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securities, cash or property, or (iv) 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 (in any such case, 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,
subject to limitation based upon full prior utilization of any maximum
amount applicable to any components(s) of the Alternate Consideration. Any
successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new warrant substantially in the
form of this Warrant and consistent with the foregoing provisions provided
that the covenant set forth in Section 8 relating to the reservation of
Common Stock shall be replaced with a covenant to the effect that
sufficient Alternate Consideration shall be reserved for issuance upon
exercise of the Warrant and evidencing the Holder's right to purchase the
Alternate Consideration for the aggregate Exercise Price upon exercise
thereof. The terms of any agreement pursuant to which a Fundamental
Transaction is affected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this paragraph (c) and
insuring that the Warrant (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
(d) NUMBER OF WARRANT SHARES. Simultaneously with any adjustment to
the Exercise Price pursuant to paragraphs (a), (b) or (d) of this Section,
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.
(e) CALCULATIONS. All calculations under this Section 8 shall be made
to the nearest cent or 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.
(f) NOTICE OF ADJUSTMENTS. Upon the occurrence of each adjustment
pursuant to this Section 8, 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
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and showing in reasonable 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.
(g) 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, at least 10 calendar days prior to the applicable record or
effective date on which a person or entity 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 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.
9. PAYMENT OF EXERCISE PRICE. The Holder shall pay the Exercise Price in
one of the following manners:
(a) CASH EXERCISE. The Holder may deliver immediately available funds
or a certified check; or
(b) CASHLESS EXERCISE. The Holder may surrender this Warrant to the
Company together with a notice of cashless exercise, in which event the
Company shall issue to the Holder the number of Warrant Shares determined
as follows
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 bid prices of
the Common Stock for the five Trading Days
immediately prior to (but not including) the
Date of Exercise.
B = the Exercise Price (as adjusted).
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 issued.
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10. LIMITATIONS ON EXERCISE.
(a) Notwithstanding anything to the contrary contained herein, the
number of shares of Common Stock 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 (as defined under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) and any
other persons or entities 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 4.999% 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. Each
delivery of an Election to Purchase hereunder will constitute a
representation by the Holder that it has evaluated the limitation set forth
in this paragraph and determined that issuance of the full number of
Warrant Shares issuable in respect of such Election to Purchase does not
violate the restrictions contained in this paragraph. 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
merger, sale or other business combination or reclassification involving
the Company as contemplated herein. The provisions of this Section may be
waived by a Holder (but only as to itself and not to any other Holder) upon
not less than 61 days' prior written notice to the Company. Other Holders
shall be unaffected by any such waiver.
(b) Notwithstanding anything to the contrary contained herein, the
number of shares of Common Stock 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
or entities 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 9.999% 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. Each delivery of an Election
to Purchase hereunder will constitute a representation by the Holder that
it has evaluated the limitation set forth in this paragraph and determined
that issuance of the full number of Warrant Shares issuable in respect of
such Election to Purchase does not violate the restrictions contained in
this paragraph. 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 merger, sale or other business combination or
reclassification involving the Company as contemplated herein.
(c) Notwithstanding paragraphs (a) and (b) of this Section 10, in the
event that the Company shall determine that any Election to Xxxxxxxx
received hereunder would violate any limitation contained in paragraphs (a)
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and (b) of this Section 10 (and, in the case of paragraph (a), such
paragraph has not been waived by the subject Holder in accordance with the
last sentence of such paragraph), the Company shall promptly notify the
subject Holder thereof, and the Company shall not be obligated to issue
Warrant Shares in an amount such as would cause any such limitation to be
exceeded; and such Election to Purchase shall be deemed void ab initio to
the extent of such excess Warrant Shares.
11. 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 bid price of one
Warrant Share as reported on the AMEX National Market (or other exchange or
trading medium on which Warrant Shares are than listed or quoted) on the Date of
Exercise.
12. NOTICES. Any and all notices or other communications or deliveries
hereunder (including without limitation any Election to Purchase) 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 Trading Day, (ii) the next Trading 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 Trading Day or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of mailing, if sent for next Trading Day delivery by
nationally recognized overnight 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 000 Xxxx Xxx, Xxxxx 000,
Xxxxxxxx, XX 00000, Facsimile No: (000) 000-0000, Attn: Chief Financial Officer,
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.
13. WARRANT AGENT. The Company shall serve as warrant agent under this
Warrant. Upon 30 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 warrants
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.
14. 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 or entity 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 respective successors and assigns.
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(b) Prior to the exercise of this Warrant as provided herein, the
Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Warrant Shares or any other securities of the Company that may at
any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder, as such,
any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to the stockholders
at any meeting thereof, or to give or withhold consent to any corporate
action or to receive notice of meetings, or to receive dividend or
subscription rights.
(c) 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,
without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant
shall be commenced in the state and federal courts sitting in the City of
New York, Borough of Manhattan. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of this Warrant), and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court. Each party hereto
hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or 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 an action or proceeding to enforce any provisions of this Warrant,
then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
(d) 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.
(e) 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.
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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.
DHB INDUSTRIES INC.
By: /s/ XXXXX XXXXXX
___________________
Name: Xxxxx Xxxxxx
Title: Chairman
WITNESS
By: /s/ XXXX XXXXXXXX
___________________
Name:Xxxx Xxxxxxxx
Title: Secretary
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FORM OF ELECTION TO PURCHASE
To by DHB Industries, Inc.:
The undersigned is the Holder of Warrant No. 1072 (the "Warrant") issued by DHB
Industries Inc., a Delaware corporation (the "Company"). Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in the
Warrant.
1. The Warrant is currently exercisable to purchase a total of ______ Warrant
Shares.
2. The undersigned Holder hereby exercises its rights with respect to _____
Warrant Shares pursuant to the Warrant ("Exercised Share Number").
3. The Holder intends that payment of the Exercise Price shall be made as
(check one):
____ "Cash Exercise"
____ "Cashless Exercise"
(a) If the Holder has elected a Cash Exercise, the Holder shall pay the
sum of $________ to the Company in accordance with the terms of the
Warrant (equal to the Exercised Share Number multiplied by the
Exercise Price of $___ per Warrant Share).
(b) If the Holder has elected a Cashless Exercise, the average of the
closing bid prices for the five Trading Days immediately prior to (but
not including) the Date of Exercise equals: $ _____.
4. Number of shares of Common Stock to be issued to the Holder equals _____
(equal to Exercised Share Number if using Cash Exercise, or based on
Cashless Exercise Formula per Section 9(b) of the Warrant).
By its delivery of this Form of Election To Purchase, the Holder 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, as amended) permitted to be owned under Section 11 of the
Warrant to which this notice relates.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of Xxxxx Xxxxx. Please print
Dated: ______________ Name of Holder _____________________
Address ________________________________________________________________
Name_____________________ Title _______________
Social Security or Tax ID: Number____________________
Signature:__________________________________
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