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EXHIBIT 4.3
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT AND
ANY APPLICABLE STATE LAWS.
STOCK PURCHASE WARRANT
To Purchase Up to 3,131,459 Shares of Common Stock of
X-XXXXXXX.XXX
This certifies that, for value received, Xxxxxxxx Capital Corp. (the
"Holder"), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after the
Initial Exercise Date (as defined below) and on or prior to the close of
business on the Termination Date (as defined below) but not thereafter, to
subscribe for and purchase from x-XxxXxxx.xxx, a corporation incorporated in the
State of Nevada (the "Company"), up to 3,131,459 shares (the "Warrant Shares")
of Common Stock, $0.0001 par value per share, of the Company (the "Common
Stock"). The purchase price of one share of Common Stock (the "Exercise Price")
under this Warrant shall be $2.3951. The Exercise Price and the number of
Warrant Shares for which the Warrant is exercisable shall be subject to
adjustment as provided herein.
1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by the
Holder in person or by duly authorized attorney, upon surrender of this Warrant
together with the Assignment Form annexed hereto properly endorsed.
2. Authorization of Shares. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of Warrant.
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(a) Except as provided in Section 4 herein, exercise of the
purchase rights represented by this Warrant may be made at any time or
times (i) on or after the earlier to occur of (A) 180 calendar days from
the date hereof, and (B) the Effective Date (the "Initial Exercise
Date"), and, (ii) on or before the earlier of (the "Termination Date")
(A) the close of business on February 20, 2011, and (B) the date on
which the Commission declares, as a matter of general policy, that it
will no longer permit the registration of the resale of shares purchased
pursuant to any "equity line" arrangement, provided that such
declaration occurs within 180 calendar days from the date hereof by the
surrender of this Warrant and the Notice of Exercise Form annexed hereto
duly executed, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books
of the Company) and upon payment of the Exercise Price of the shares
thereby purchased by wire transfer or cashier's check drawn on a United
States bank (or by means of a cashless exercise,) the Holder shall be
entitled to receive a certificate for the number of Warrant Shares so
purchased. Notwithstanding anything to the contrary herein, sub-section
(a)(ii)(B) above shall have no force and effect (i) with regard to
comments received by the Commission that may be cured by obtaining
waivers from the Purchaser or by withdrawing the Registration Statement
and amending any of the Transaction Documents, or (ii) in the event the
Registration Statement is declared effective. Certificates for shares
purchased hereunder shall be delivered to the Holder within three (3)
Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have
been issued, and Holder or any other person so designated to be named
therein shall be deemed to have become a holder of record of such shares
for all purposes, as of the date the Warrant has been exercised by
payment to the Company of the Exercise Price and all taxes required to
be paid by the Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid.
(b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
(c) This Warrant shall also be exercisable by means of a
"cashless exercise" in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
(A) = the average of the high and low trading prices per
share of Common Stock on the Trading Day preceding the date of
such election on the Nasdaq Stock Market, or if the Common Stock
is not traded on the Nasdaq Stock Market, then the Principal
Market in terms of volume;
(B) = the Exercise Price of this Warrant; and
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(X) = the number of Warrant Shares issuable upon exercise of
this Warrant in accordance with the terms of this Warrant.
(d) Notwithstanding anything herein to the contrary, in no event
shall the Holder be permitted to exercise this Warrant for Warrant
Shares to the extent that (i) the number of shares of Common Stock owned
by such Holder (other than Warrant Shares issuable upon exercise of this
Warrant) plus (ii) the number of Warrant Shares issuable upon exercise
of this Warrant, would be equal to or exceed 9.9% of the number of
shares of Common Stock then issued and outstanding, including shares
issuable upon exercise of this Warrant held by such Holder after
application of this Section 3(d). As used herein, beneficial ownership
shall be determined in accordance with Section 13(d) of the Exchange
Act. To the extent that the limitation contained in this Section 3(d)
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
Holder, and the submission of a Notice of Exercise 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. Nothing contained
herein shall be deemed to restrict the right of a Holder to exercise
this Warrant into Warrant Shares at such time as such exercise will not
violate the provisions of this Section 3(d). The provisions of this
Section 3(d) may be waived by the Holder upon, at the election of the
Holder, with not less than 61 days' prior notice to the Company, and the
provisions of this Section 3(d) shall continue to apply until such 61st
day (or such later date as may be specified in such notice of waiver).
No exercise of this Warrant in violation of this Section 3(d) but
otherwise in accordance with this Warrant shall affect the status of the
Warrant Shares as validly issued, fully-paid and nonassessable.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the
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Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
6. Closing of Books. Unless required by law, the Company will not close
its stockholder books or records in any manner which prevents the timely
exercise of this Warrant.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws,
transfer of this Warrant and all rights hereunder, in whole or in part,
shall be registered on the books of the Company to be maintained for
such purpose, upon surrender of this Warrant at the principal office of
the Company, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder or
its agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. In the event that the Holder
wishes to transfer a portion of this Warrant, the Holder shall transfer
at least 50,000 shares underlying this Warrant to any such transferee.
Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination or denominations specified
in such instrument of assignment, and shall issue to the assignor a new
Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly assigned,
may be exercised by a new holder for the purchase of Warrant Shares
without having a new Warrant issued.
(b) This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in
which new Warrants are to be issued, signed by the Holder or its agent
or attorney. Subject to compliance with Section 7(a), as to any transfer
which may be involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such
notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the
Warrants.
8. No Rights as Shareholder until Exercise. This Warrant does not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price (or by means of a cashless exercise),
the Warrant Shares so purchased shall be and be deemed to be issued to such
Holder as the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.
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9. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which shall
not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or legal holiday.
11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of
any of the following. In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares, or (iv) issue any shares of its capital stock in a
reclassification of the Common Stock, then the number of Warrant Shares
purchasable upon exercise of this Warrant immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company
which it would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such adjustment of
the kind and number of Warrant Shares or other securities of the Company
which are purchasable hereunder, the Holder shall thereafter be entitled
to purchase the number of Warrant Shares or other securities resulting
from such adjustment at an Exercise Price per Warrant Share or other
security obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant Shares
purchasable pursuant hereto immediately prior to such adjustment and
dividing by the number of Warrant Shares or other securities of the
Company resulting from such adjustment. An adjustment made pursuant to
this paragraph shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such
event.
(b) Reset Exercise Price. Without limiting the generality of
subclause (a) above, the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following events: (i)
upon the exercise by the Company of its initial draw down ("Draw Down")
pursuant to the Purchase Agreement, the Exercise Price shall be reset,
if lower, to the amount equal to the product of (x) one hundred fifty
percent (150%)
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and (y) the lowest Purchase Price during the Draw Down Pricing Period
for such initial Draw Down; (ii) upon the exercise by the Company of any
subsequent Draw Down (after the initial Draw Down), the Exercise Price
shall be reset to the amount equal to the product of (x) one hundred
fifty percent (150%) and (y) the lowest Purchase Price during any Draw
Down Pricing Period (other than the initial Drawn Down Pricing Period),
provided that such Exercise Price as adjusted shall be lower than the
Exercise Price in effect immediately prior to such adjustment. Any
adjustment made pursuant to this subclause (b) shall become effective
immediately after the applicable settlement date for such Draw Down.
12. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of Warrant Shares
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 12. For purposes of
this Section 12, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
Notwithstanding anything to the contrary in this Section 12, a successor or
acquiring corporation, at the closing of the succession or acquisition of the
Company, may elect to purchase the entire unexercised portion of this Warrant at
the value for such warrant as determined in accordance with the Black-Scholes
option
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pricing formula; provided, however, the successor or acquiring corporation
notify the Holder at least ten (10) Trading Days prior to such closing. The
Holder shall have the right to exercise all or any portion of this Warrant up to
and including the Trading Day immediately prior to the date set in such notice
for the purchase of this Warrant.
13. Voluntary Adjustment by the 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.
14. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall promptly mail by registered or certified mail, return receipt requested,
to the Holder notice of such adjustment or adjustments setting forth the number
of Warrant Shares (and other securities or property) purchasable upon the
exercise of this Warrant and the Exercise Price of such Warrant Shares (and
other securities or property) after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such notice, in the absence of
manifest error, shall be conclusive evidence of the correctness of such
adjustment.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of
its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company
or any consolidation or merger of the Company with, or any sale,
transfer or other disposition of all or substantially all the property,
assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder
(i) at least 20 days' prior written notice of the date on which a record
date shall be selected for such dividend, distribution or right or for
determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 20 days'
prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i)
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common
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Stock shall be entitled to any such dividend, distribution or right, and
the amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up is to take place and
the time, if any such time is to be fixed, as of which the holders of
Common Stock shall be entitled to exchange their Warrant Shares for
securities or other property deliverable upon such disposition,
dissolution, liquidation or winding up. Each such written notice shall
be sufficiently given if addressed to Holder at the last address of
Holder appearing on the books of the Company and delivered in accordance
with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
The Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
against impairment. Without limiting the generality of the foregoing, the
Company will (a) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to such increase in
par value, (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the
number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. Miscellaneous.
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(a) Jurisdiction. This Warrant shall constitute a contract under
the laws of California, without regard to its conflict of law,
principles or rules, and be subject to arbitration pursuant to the terms
set forth in the Purchase Agreement.
(b) Restrictions. The Holder acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Holder's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any
of its rights, powers or remedies hereunder.
(d) Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in
writing and shall be effective (A) upon hand delivery or facsimile at
the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or
the first business day following such delivery (if delivered other than
on a business day during normal business hours where such notice is to
be received), or (B) on the second business day following the date of
mailing by express internationally recognized courier service, fully
prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company: 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000
FAX: (000) 000-0000
With a copy to: Manatt, Xxxxxx & Xxxxxxxx, LLP
(which shall not 00000 Xxxxxxx Xxxxxxxxx
constitute notice) Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx, Esq.
Tel: (000) 000-0000
FAX: (000) 000-0000
If to Holder: Xxxxxxxx Capital Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
00
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Tel: (000) 000-0000
FAX: (000) 000-0000
Any party hereto may from time to time change its address for notices by
giving written notice of such changed address to the other party hereto in
accordance herewith.
(e) Limitation of Liability. No provision hereof, in the absence
of affirmative action by Holder to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of Holder, shall give
rise to any liability of Holder for the purchase price of any Common
Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Warrant. The
Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this Warrant and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares. Subject to compliance with
applicable securities laws, the Holder may distribute this Warrant (or
the Warrant Shares if applicable) in whole or in part, to Xxxxxxxx
Group, Inc., Xxxxxxxx Partners, LLC, or their respective shareholders,
members or employees, in increments of no less than 50,000 Warrants (or
Warrant Shares if applicable), provided that for administrative
purposes, there will be a maximum of ten (10) assignees or transferees,
in the aggregate.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and the
Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
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(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
18. Definitions.
(a) "Draw Down Pricing Period" shall mean a period of twenty (20)
consecutive Trading Days beginning on the date specified in the Draw
Down Notice (as defined in Section 5.1(f) of the Purchase Agreement in
effect as of the date of this Warrant); provided, however, the Draw Down
Pricing Period shall not begin before the day on which receipt of such
notice is confirmed in accordance with the Purchase Agreement.
(b) "Effective Date" shall mean the date the Registration
Statement of the Company covering the shares of Common Stock being
subscribed for pursuant to the Purchase Agreement is declared effective
by the Securities and Exchange Commission (the "SEC").
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(d) "Principal Market" shall mean initially the American Stock
Exchange and shall include the Nasdaq National Market, the Nasdaq
Small-Cap Market and the New York Stock Exchange if the Company becomes
listed and trades on such market or exchange after the date hereof.
(e) "Purchase Price" shall mean, with respect to Shares purchased
during each applicable Settlement Period (as defined in Section 5.1(b)
of the Purchase Agreement in effect as of the date of this Warrant),
92.5% (the "Purchase Price Percentage") of the VWAP on the date in
question; except that, for each $50,000,000 increase in the Company's
average market cap (calculated by multiplying the number of shares of
Common Stock issued and outstanding by the VWAP of the Common Stock (the
"Market Cap") above $150,000,000 during the applicable Market Cap Period
(as defined below), the Purchase Price Percentage shall be increased by
0.5% on the date in question until the Purchase Price Percentage equals
94.5%; provided, however, each increase in Purchase Price Percentage
shall only occur if the corresponding increase in the Market Cap is
maintained for at least twenty (20) consecutive Trading Days immediately
prior to the date the applicable Settlement Period commences (the
"Market Cap Period"). By way of example, if the Market Cap is between $1
and $199,999,999 during the Market Cap Period, the Purchase Price
Percentage shall be 92.5%. If the Market Cap is between $200,000,000 and
$249,999,999 during the entire Market Cap Period, the Purchase Price
Percentage shall be 93%.
(f) "Registration Statement" shall mean the registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), to be filed with the Securities and Exchange Commission for the
registration of shares of Common Stock pursuant to the
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Registration Rights Agreement by and between the Company and Xxxxxx
International Limited (the "Registration Rights Agreement").
(g) "Threshold Price" shall mean the price per Share designated
by the Company as the lowest VWAP during any Draw Down Pricing Period at
which the Company will sell its Common Stock in accordance with the
Purchase Agreement.
(h) "Trading Day" shall mean any day on which the Principal
Market is open for business.
(i) "Transaction Documents" shall mean the Common Stock Purchase
Agreement ("Purchase Agreement"), the Registration Rights Agreement and
the Escrow Agreement, all by and between the Company and Xxxxxx
International Limited, dated concurrently herewith, as in effect as of
the date hereof.
(j) "VWAP" shall mean the daily volume weighted average price of
the Company's Common Stock on the Principal Market as reported by
Bloomberg Financial L.P. (based on a trading day from 9:30 a.m. Eastern
Time to 4:02 p.m. Easter Time) using the VAP function on the date in
question.
SIGNATURE PAGE FOLLOWS
13
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer thereunto duly authorized.
Dated: February 20, 2001 X-XXXXXXX.XXX
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx, President & CEO
NOTICE OF EXERCISE OF WARRANT
To: x-XxxXxxx.xxx
(1) The undersigned hereby elects to purchase ________ Warrant Shares
(the "Common Stock"), of x-XxxXxxx.xxx pursuant to the terms of the attached
Warrant, and tenders herewith payment of the exercise price in full, together
with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
-------------------------------
The Warrant Shares shall be delivered to the following:
-------------------------------
-------------------------------
-------------------------------
[HOLDER]
By:
---------------------------------------
Name:
---------------------------------
Title:
---------------------------------
Date:
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14
NOTICE OF EXERCISE OF WARRANT
PURSUANT TO CASHLESS EXERCISE PROVISIONS
To: x-XxxXxxx.xxx
Aggregate Price of Warrant Before Exercise: $_____________
Aggregate Price Being Exercised: $______________
Exercise Price: $________________ per share
Number of Shares of Common Stock to be Issued Under this Notice:_______
Remaining Aggregate Price (if any) After Issuance: $__________________
Gentlemen:
The undersigned, registered Holder of the Warrant delivered herewith,
hereby irrevocably exercises such Warrant for, and purchases thereunder, shares
of the Common Stock of x-XxxXxxx.xxx, a Nevada corporation, as provided below.
Capitalized terms used herein, unless otherwise defined herein, shall have the
meanings given in the Warrant. The portion of the Exercise Price (as defined in
the Warrant) to be applied toward the purchase of Common Stock pursuant to this
Notice of Exercise is $ , thereby leaving a remaining aggregate Exercise
Price (if any) equal to $ . Such exercise shall be pursuant to the cashless
exercise provisions of Section 3 of the Warrant; therefore, Holder makes no
payment with this Notice of Exercise. The number of shares to be issued pursuant
to this exercise shall be determined by reference to the formula in Section 3 of
the Warrant which, by reference to Section 3, requires the use of the high and
low trading price of the Company's Common Stock on the Trading Day preceding the
date of such election. The high and low trading price of the Company's Common
Stock has been determined by Holder to be $ and $ , respectively, which
figure is acceptable to Holder for calculations of the number of shares of
Common Stock issuable pursuant to this Notice of Exercise. Holder requests that
the certificates for the purchased shares of Common Stock be issued in the name
of and delivered to the person(s) designated below. To the extent the foregoing
exercise is for less than the full Aggregate Price of the Warrant, a replacement
Warrant representing the remainder of the Aggregate Price (and otherwise of like
form, tenor and effect) shall be delivered to Holder along with the share
certificate evidencing the Common Stock issued in response to this Notice of
Exercise.
Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
-------------------------------
15
The Warrant Shares shall be delivered to the following:
-------------------------------
-------------------------------
-------------------------------
[HOLDER]
By:
---------------------------------------
Name:
--------------------------------------------------------------------------
Title:
--------------------------------------------------------------------------
Date:
---------------------------------------
NOTE: The execution to the foregoing Notice of Exercise must exactly
correspond to the name of the Holder on the Warrant.
16
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
whose
address is .
--------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ,
-------------- -------
Holder's Signature:
---------------------------------------
Holder's Address:
---------------------------------------
---------------------------------------
Signature Guaranteed:
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
17
CERTIFICATE OF CLERK
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Clerk of St. Botolph
Holding Company, a Massachusetts corporation; and
2. That the foregoing bylaws, comprising 11 pages, constitute the
Bylaws of said corporation as duly adopted by resolutions of the Board of
Directors and shareholders of the Corporation as of February 27, 2001.
IN WITNESS WHEREOF, I have hereunto subscribed my name as of the 27th day
of February 2001.
----------------------------
Xxxxx X. Xxxxxx
