Contract
Exhibit
4.5
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 (TO THE EXTENT REQUESTED BY
COUNSEL OF THE COMPANY) 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.
XXXXXXXXXX
WARRANT
| Warrant No. W-_ |
Original
Issue Date: May 24,
2007
|
Xxxxxxxxxx,
a California corporation (the “Company”),
hereby certifies that, for value received, [_______] or its registered assigns
(the “Holder”),
is
entitled to purchase from the Company up to a total of [_____] 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 180 days after the Original Issue
Date (the “Initial
Exercise Date”)
and
through and including May 24, 2012 (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.
“Alternate
Consideration”
shall
have the meaning set forth in Section 9(b).
“Anti-Dilution
Excluded Securities”
shall
mean any of the following securities: (1) securities issued to employees,
consultants, officers or directors of the Company or Options granted by the
Company to employees, consultants, officers or directors of the Company pursuant
to any option plan, agreement or other arrangement duly adopted by the Company
and the grant of which is approved by the compensation committee of the Board
of
Directors; (2) the Series A Preferred Stock and any Common Stock issued upon
conversion of the Series A Preferred Stock; (3) for the avoidance of doubt,
securities issued on the conversion of any Convertible Securities or the
exercise of any Options, in each case, outstanding on the Original Issue Date;
and (4) for the avoidance of doubt, securities issued in connection with a
stock
split, stock dividend, combination, reorganization, recapitalization or other
similar event for which adjustment is made in accordance with the provisions
of
this Warrant.
“Buy-In”
shall
have the meaning set forth in Section 5(c).
“Common
Stock Equivalents”
shall
mean Options and Convertible Securities.
“Convertible
Securities”
shall
mean any stock or securities (other than Options) convertible into or
exchangeable for Common Stock.
“Date
of Exercise”
shall
have the meaning set forth in Section 5(a).
“Dilutive
Issuance”
shall
have the meaning set forth in Section
9(g).
“Dilutive
Issuance Notice”
shall
have the meaning set forth in Section
9(g).
“Exercise
Price”
shall
mean $2.42, subject to adjustment in accordance with Section 9.
“Fundamental
Transaction”
shall
mean any of the following: (i) the Company effects any merger or consolidation
of the Company with or into another Person pursuant to which the Common Stock
of
the Company is converted into a right to receive other securities or property
(other than a migratory merger conducted solely for the purpose of changing
the
Company’s state of incorporation), (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) is completed pursuant to which holders of Common Stock are permitted
to
tender or exchange their shares for other 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.
“New
Warrant”
shall
have the meaning set forth in Section 3.
“Options”
shall
mean any outstanding rights, warrants or options to subscribe for or purchase
Common Stock or Convertible Securities
“Original
Issue Date”
shall
mean the Original Issue Date first set forth on the first page of this
Warrant.
“Purchase
Agreement”
shall
mean the Securities Purchase Agreement dated as of May 24, 2007 (as amended
or
modified from time to time), to which the Company and the original Holder are
parties.
“Warrant
Register”
shall
have the meaning set forth in Section 2.
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.
-2-
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.
4. Exercise
and Duration of Warrants.
(a) This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after the Initial Exercise Date through and including the
Expiration Date. At 5:00 p.m., California time on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and become void
and
of no value. The Company may not call or redeem any portion of this Warrant
without the prior written consent of the affected Holder.
(b) If
at any
time after the Initial Exercise Date there
is
no effective Registration Statement registering, or no current prospectus
available for, the resale of the Warrant Shares by the Holder, then this Warrant
may also be exercised at such time by means of a “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 sale prices for the five Business Days immediately prior
to (but not including) the Exercise Date.
B
= the
Exercise Price.
-3-
(c) The
Holder shall not have the right to exercise any portion of this Warrant,
pursuant to Section
4(a)
or
otherwise, to the extent that after giving effect to such issuance after
exercise, the Holder (together with the Holder’s Affiliates), as set forth on
the applicable Exercise Notice, would beneficially own in excess of 4.99% of
the
number of shares of the Common Stock outstanding immediately after giving effect
to such issuance. For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates shall
include the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is being made,
but shall exclude the number of shares of Common Stock which would be issuable
upon (A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates and (B) exercise
or
conversion of the unexercised or nonconverted portion of any other securities
of
the Company (including, without limitation, any other Warrants or Preferred
Stock) subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its
Affiliates. Except as set forth in the preceding sentence, for purposes of
this
Section
4(c),
beneficial ownership shall be calculated in accordance with Section 13(d) of
the
Exchange Act, it being acknowledged by Holder that the Company is not
representing to Holder that such calculation is in compliance with Section
13(d)
of the Exchange Act and Holder is solely responsible for any schedules required
to be filed in accordance therewith. To the extent that the limitation contained
in this Section
4(c)
applies,
the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder) and of which a portion of this Warrant is
exercisable shall be in the sole discretion of such Xxxxxx, and the submission
of a Exercise Notice shall be deemed to be such Holder’s determination of
whether this Warrant is exercisable (in relation to other securities owned
by
such Holder) and of which portion of this Warrant is exercisable, in each case
subject to such aggregate percentage limitation, and the Company shall have
no
obligation to verify or confirm the accuracy of such determination. For purposes
of this Section
4(c),
in
determining the number of outstanding shares of Common Stock, the Holder may
rely on the number of outstanding shares of Common Stock as reflected in (x)
the
Company’s most recent Form 10-QSB or Form 10-KSB, as the case may be, (y) a more
recent public announcement by the Company or (z) any other notice by the Company
or the Company’s Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of the Holder, the Company
shall within two (2) Business Days confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be determined after giving effect
to
the conversion or exercise of securities of the Company, including this Warrant,
by the Holder or its Affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The provisions of this
Section
4(c)
may be
waived by the Holder, at the election of the Holder, upon not less than 61
days’
prior notice to the Company, and the provisions of this Section
4(c)
shall
continue to apply until such 61st day (or such later date, as determined by
the
Holder, as may be specified in such notice of waiver).
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. 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 (3)
Business 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. The Company shall, upon request of the Holder and
subsequent to the date on which a registration statement covering the resale
of
the Warrant Shares has been declared effective by the SEC, use its reasonable
best efforts to deliver Warrant Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions, if available, provided, that, the Company may,
but
will not be required to change its transfer agent if its current transfer agent
cannot deliver Warrant Shares electronically through the Depository Trust
Corporation. 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 and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Holder to be purchased.
-4-
(b) If
by the
third (3rd)
Business 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 (3rd)
Business 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 (3rd)
Business 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 sale 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. The Holder shall
provide the Company written notice and supporting documentation indicating
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 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.
-5-
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.
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 payment of the dividend or the making of the 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.
-6-
(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. At the Holder’s option and request, 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 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 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.
(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.
-7-
(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 shareholder 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 ten (10) Business
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.
(g) Subsequent
Equity Sales.
If the
Company at any time while this Warrant is outstanding, shall offer, sell, grant
any option to purchase or offer, sell or grant any right to reprice its
securities, or otherwise dispose of or issue (or announce any offer, sale,
grant
or any option to purchase or other disposition) any Common Stock or Common
Stock
Equivalents entitling any Person to acquire shares of Common Stock, at an
effective price per share less than the then Exercise Price (each such issuance,
a “Dilutive
Issuance”),
as
adjusted hereunder (if the holder of the Common Stock or Common Stock
Equivalents so issued shall at any time, whether by operation of purchase price
adjustments, reset provisions, floating conversion, exercise or exchange prices
or otherwise, or due to warrants, options or rights per share which is issued
in
connection with such issuance, be entitled to receive shares of Common Stock
at
an effective price per share which is less than the Exercise Price, such
issuance shall be deemed to have occurred for less than the Exercise
Price), then
the
Exercise Price shall be reduced to the price determined by dividing (x) an
amount equal to the sum of (a) the number of shares of Common Stock outstanding
immediately prior to such issue or sale multiplied by the then existing Exercise
Price and (b) the consideration, if any, received by the Company upon such
issue
or sale, by (y) the total number of shares of Common Stock outstanding
immediately after such issue or sale and, in each case, the number of Warrant
Shares issuable hereunder shall be increased such that the aggregate Exercise
Price payable hereunder, after taking into account the decrease in the Exercise
Price, shall be equal to the aggregate Exercise Price prior to such adjustment.
For purposes of determining the number of shares of Common Stock outstanding
as
provided in clauses (x) and (y) above, the number of shares of Common Stock
issuable upon conversion of all outstanding Convertible Securities and exercise
of all outstanding Options shall be deemed to be outstanding. Anything herein
to
the contrary notwithstanding, the Company shall not be required to make any
adjustment of the Exercise Price in the case of the issuance or sale from and
after the Original Issue Date of Anti-Dilution Excluded Securities. The Company
shall notify the Holder in writing, no later than the Business Day following
the
issuance of any Common Stock or Common Stock Equivalents subject to this
section, indicating therein the applicable issuance price, or of applicable
reset price, exchange price, conversion price and other pricing terms (such
notice the “Dilutive
Issuance Notice”).
-8-
10. Payment
of Exercise Price.
Except
in connection with a cashless exercise as set forth in Section
4(b),
the
Holder shall pay the Exercise Price by delivering to the Company immediately
available funds.
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 sale price of one Warrant Share as reported
by the applicable Trading Market on the date of exercise.
12. 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 5:00 p.m. (California 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 5:00 p.m.
(California time) on any Business Day, (iii) the Business Day following the
date
of mailing, if sent 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
Xxxxxxxxxx, 000 Xxxxxxx Xxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxxx 00000, Attn:
President, or to Facsimile No.: (000) 000-0000 (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.
13. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon ten (10) 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.
-9-
14. Voluntary
Adjustment By Company.
The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate
by
the Board of Directors of the Company.
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) THE
CORPORATE LAWS OF THE STATE OF CALIFORNIA SHALL GOVERN ALL ISSUES CONCERNING
THE
RELATIVE RIGHTS OF THE COMPANY AND ITS SHAREHOLDERS. ALL QUESTIONS CONCERNING
THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
CALIFORNIA. THE COMPANY AND HOLDER HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE COUNTY
OF ORANGE, STATE OF CALIFORNIA, FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT
BY
THE COMPANY OR HOLDER HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE
ENFORCEMENT OF THIS AGREEMENT, AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT
TO
ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY HOLDER,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY 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 AGREEMENT
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. THE
COMPANY AND HOLDER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(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.
-10-
(e) Prior
to
exercise of this Warrant, the Holder hereof shall not, by reason of by being
a
Holder, be entitled to any rights of a shareholder with respect to the Warrant
Shares.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
|
XXXXXXXXXX
|
|
|
By: /s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, Chief Financial
Officer
|
-11-
EXERCISE
NOTICE
XXXXXXXXXX
WARRANT
DATED MAY 24, 2007
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 shall pay the sum of $____________ to the Company in accordance
with the terms of the Warrant. Payment shall take the form of lawful
money
of the United States in immediately available
funds.
|
|
(3)
|
Pursuant
to this Exercise Notice, the Company shall deliver to the Holder
_______________ Warrant Shares in accordance with the terms of the
Warrant.
|
|
(4)
|
The
undersigned represents that it has and will comply with the prospectus
delivery requirements of the Securities
Act.
|
|
Dated:______________________,
____
|
Name
of Holder:
|
|
| _________________________________________ | ||
|
(Print)
|
||
|
By:____________________________________________
|
||
|
Name:__________________________________________
|
||
|
Title:___________________________________________
|
||
|
(Signature
must conform in all respects to name of holder
as
specified on the face of the
Warrant)
|
-12-
Warrant
Shares Exercise Log
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
-13-
XXXXXXXXXX
WARRANT
ORIGINALLY ISSUED MAY 24, 2007
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:
__________________________
-14-
