OMNIALUO, INC. COMMON STOCK PLACEMENT AGENT WARRANT
THESE
SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
OMNIALUO,
INC.
COMMON
STOCK PLACEMENT AGENT WARRANT
|
Warrant
No. [___]
|
Dated:
October ___,
2007
|
Wentworth
II, Inc., a Delaware corporation (the “Company”)
which
will change its corporate name to OmniaLuo, Inc., hereby certifies that, for
value received, ▇▇▇▇▇▇▇ Securities, LLC, or its registered assigns (the
“Holder”),
is
entitled to purchase from the Company up to a total of 492,000
shares
of common stock, $0.01 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 equal to $1.5625 per share (as adjusted from time to time as
provided in Section
9,
the
“Exercise
Price”),
at
any time from the Closing Date and through and including the date that is the
earliest of (i) five years from the date of issuance hereof, or (ii)
cancellation of this Warrant pursuant to Section
4(c)
hereof
(the “Expiration
Date”),
and
subject to the following terms and conditions. This Warrant (this “Warrant”)
is
issued pursuant to that certain Placement Agreement, dated as of September
14,
2007 by and among the Company and the Holder (the “Placement
Agent
Agreement”).
1.
Definitions.
In
addition to the terms defined elsewhere in this Warrant, capitalized terms
that
are not otherwise defined herein have the meanings given to such terms in the
Securities Purchase Agreement attached as an exhibit (the “Securities
Purchase Agreement”)
to the
Placement Agreement.
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.
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 as Annex
A
duly
completed and signed, to the transfer agent or 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 Closing Date up to and including the Expiration Date.
At
6:30 P.M., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value.
(b)
A
Holder
may exercise this Warrant by delivering to the Company (i) an exercise notice,
in the form attached hereto as Annex
B
(the
“Exercise
Notice”),
appropriately completed and duly signed along with the Warrant, and
(ii) payment of the Exercise Price for the number of Warrant Shares as to
which this Warrant is being exercised, and the date such items are delivered
to
the Company (as determined in accordance with the notice provisions hereof)
is
an “Exercise
Date.”
Execution and delivery of the Exercise Notice shall have the same effect as
cancellation of the original Warrant and issuance of a New Warrant evidencing
the right to purchase the remaining number of Warrant Shares.
(c)
The
Holder shall pay the Exercise Price in immediately available funds.
(d)
Net
Issue Election.
The
Holder may elect to receive, without the payment by the Holder of any additional
consideration, shares equal to the value of this Warrant or any portion hereof
by the surrender of this Warrant or such portion (together with a duly executed
notice of exercise in the form attached hereto as Annex
B)
at the
principal office of the Company. Thereupon, the Company shall issue to the
Holder such number of shares of Common Stock as is computed using the following
formula:
X
=
Y
(A-B)
A
Where
|
X
=
|
the
number of Warrant Shares to be issued to the Holder pursuant to this
Section
4(d).
|
|
Y
=
|
the
number of Warrant Shares in respect of which the net issue election
is
made pursuant to this Section
4(d).
|
2
|
A
=
|
the
fair market value of one share of Common Stock, as determined by
the board
of directors of the Company, as at the time the net issue election
is made
pursuant to this Section
4(d).
|
|
B
=
|
the
Exercise Price in effect under this Warrant at the time the net issue
election is made pursuant to this Section
4(d).
|
|
For
purposes of Rule 144 promulgated under the Securities Act, it is
intended,
understood and acknowledged that the Warrant Shares issued in a net
issue
election transaction shall be deemed to have been acquired by the
Holder,
and the holding period for the Warrant Shares shall be deemed to
have
commenced, on the date this Warrant was originally
issued
|
5.
Delivery
of Warrant Shares.
(a)
The
Holder shall not be required to physically surrender this Warrant unless this
Warrant is being exercised in full. To effect exercises hereunder, the Holder
shall duly execute and deliver to the Company at its address for notice set
forth herein, an Exercise Notice in the form of Annex
B
hereto,
along with the Warrant Share Exercise Log in the form of Annex
C
hereto,
and shall pay the Exercise Price, if applicable, multiplied by the number of
Warrant Shares that the Holder intends to purchase hereunder. The Company shall
promptly (but in no event later than three Trading Days after the date of
exercise) issue or cause to be issued and cause to be delivered to or upon
the
written order of the Holder a certificate for the Warrant Shares issuable upon
such exercise. 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 commercially reasonable
best efforts to deliver Warrant Shares hereunder electronically through the
Depository Trust Corporation or another established clearing corporation
performing similar functions. If by the third Trading Day after exercise of
this
Warrant, the Company fails to deliver the required number of Warrant Shares,
the
Holder will have the right to rescind the exercise. If by the third Trading
Day
after exercise, the Company fails to deliver the required number of Warrant
Shares, and if after such third Trading Day and prior to the receipt of such
Warrant Shares, the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of Warrant Shares which the Holder anticipated receiving upon such
exercise (a “Buy
In”),
then
the Company shall (i) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue by (B) the
closing bid price of the Common Stock on the exercise date and (ii) 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 Warrant Shares that would have been issued
had the Company timely complied with its exercise and delivery obligations
hereunder. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy In.
(b)
This
Warrant is exercisable, either in its entirety or, from time to time, in part
for a portion of the Warrant Shares. Upon surrender of this Warrant following
one or more partial exercises, the Company shall issue or cause to be issued,
at
its expense, a New Warrant evidencing the right to purchase the remaining number
of Warrant Shares.
3
(c)
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 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.
6.
Charges,
Taxes and Expenses.
Initial
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.
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 bond or 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.
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 that
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 (after giving effect to the adjustments and restrictions of
Section
9,
if
any). 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. The Company will take all such action as may
be
necessary to assure that such shares of Common Stock may be issued as provided
herein without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation system upon
which
the Common Stock may be listed. The Company will notify its transfer agent
for
the Common Stock of the reservation of shares of Common Stock as required under
this provision.
4
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 after
the date hereof, the number of outstanding shares of Common Stock is increased
by a stock dividend payable in shares of Common Stock or by a split-up of shares
of Common Stock or other similar event, then, on the effective date thereof,
the
number of shares issuable on exercise of each Warrant shall be increased in
proportion to such increase in outstanding shares and the then applicable
Exercise Price shall be correspondingly decreased.
(b)
Aggregation
of Shares.
If after
the date hereof, the number of outstanding shares of Common Stock is decreased
by a consolidation, combination or reclassification of shares of Common Stock
or
other similar event, then, upon the effective date of such consolidation,
combination or reclassification, the number of shares issuable on exercise
of
each Warrant shall be decreased in proportion to such decrease in outstanding
shares and the then applicable Exercise Price shall be correspondingly
increased.
(c)
Replacement
of Securities Upon Reorganization, etc.
If after
the date hereof any capital reorganization or reclassification of the Common
Stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation or other similar event shall be effected, then, as a condition
of
such reorganization, reclassification, consolidation, merger, or sale, lawful
and fair provision shall be made whereby the Holder of the Warrant shall
thereafter have the right to purchase and receive, upon the basis and upon
the
terms and conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented thereby, such shares of stock,
securities, or assets as may be issued or payable with respect to or in exchange
for the number of outstanding shares of such Common Stock equal to the number
of
shares of such stock immediately theretofore purchasable and receivable upon
the
exercise of the rights represented by the Warrants, had such reorganization,
reclassification, consolidation, merger, or sale not taken place and in such
event appropriate provision shall be made with respect to the rights and
interests of the Holder of the Warrant to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Exercise
Price
and of the number of shares purchasable upon the exercise of the Warrants)
shall
thereafter be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger, or sale unless prior
to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing
such
assets, shall assume by written instrument executed and delivered to the Holders
of the Warrants the obligation to deliver to the Holders of the Warrant such
shares of stock, securities, or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase.
5
(d)
Adjustment
of Exercise Price Upon Issuance of Additional Shares of Common
Stock.
In the
event the Company shall at any time after the Closing Date issue shares of
Common Stock (the “Additional
Shares of Common Stock”),
other
than Exempt Issuances (as defined in the Securities Purchase
Agreement),
while
any portion of this Warrant remains outstanding,
without
consideration or for a consideration per share less than the Common Share
Offering Price, which shall be deemed to be adjusted to reflect any release
of
Escrow Shares pursuant to the Make Good Escrow Agreement, then the Exercise
Price shall be reduced, concurrently with such issue, to a price (calculated
to
the nearest one-hundredth of a cent), determined in accordance with the
following formula:
EP2
=
EP1
*
(A + B)
÷ (A + C).
For
purposes of the foregoing formula, the following definitions shall apply:
(a) “EP2”
shall
mean the Exercise Price in effect immediately after such issue of Additional
Shares of Common Stock;
(b) “EP1”
shall
mean the Exercise Price in effect immediately prior to such issue of Additional
Shares of Common Stock;
(c) “A”
shall
mean the number of shares of Common Stock outstanding immediately prior to
such
issue of Additional Shares of Common Stock (treating for this purpose as
outstanding all shares of Common Stock issuable upon exercise, conversion or
exchange of Common Stock Equivalents (as defined below) outstanding immediately
prior to such issue;
(d) “B”
shall
mean the number of shares of Common Stock that would have been issued if such
Additional Shares of Common Stock had been issued at a price per share equal
to
EP1
(determined by dividing the aggregate consideration received by the Company
in
respect of such issue by EP1);
and
(e) “C”
shall
mean the number of such Additional Shares of Common Stock issued in such
transaction.
(e)
Adjustment
of Exercise Price Upon Issuance of Common Stock Equivalents.
In the
event the Company shall at any time after the Closing Date issue any Convertible
Security (defined as evidences of indebtedness, shares of stock or other
securities which are or may be at any time convertible into or exchangeable
for
shares of Common Stock) or warrant, option or other right to subscribe for
or
purchase any shares of Common Stock or any Convertible Security (a “Common
Stock Equivalent”),
other
than Exempt Issuances, and the price per share for which Additional Shares
of
Common Stock may be issuable thereafter pursuant to such Common Stock Equivalent
shall be less than the Common Share Offering Price, or if, after any such
issuance of Common Stock Equivalents, the price per share for which Additional
Shares of Common Stock may be issuable thereafter is amended, and such price
as
so amended shall be less than the Common Share Offering Price, then the Exercise
Price upon each such issuance or amendment shall be adjusted as provided in
Section 9(d) above, on the basis that Additional Shares of Common Stock issuable
pursuant to such Common Stock Equivalents shall be deemed to have been issued
(whether or not such Common Stock Equivalents are actually then exercisable,
convertible or exchangeable in whole or in part) as of the earlier of (a) the
date on which the Company shall enter into a firm contract for the issuance
of
such Common Stock Equivalent, or (b) the date of actual issuance of such Common
Stock Equivalent. No adjustment of the Exercise Price shall be made under this
Section 9(e) upon the issuance of any Convertible Security which is issued
pursuant to the exercise of any warrants or other subscription or purchase
rights therefore, if any adjustment shall previously have been made in the
Exercise Price then in effect upon the issuance of such warrants or other rights
pursuant to this Section 9(e).
6
(f)
Computation
of Consideration.
The
consideration received by the Company shall be deemed to be the following:
to
the extent that any Additional Shares of Common Stock or any Common Stock
Equivalents shall be issued for a cash consideration, the consideration received
by the Company therefore; or, if such Additional Shares of Common Stock or
Common Stock Equivalents are offered by the Company for subscription, the
subscription price; or, if such Additional Shares of Common Stock or Common
Stock Equivalents are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price, in any
such
case excluding any amounts paid or receivable for accrued interest or accrued
dividends and without deduction of any compensation, discounts, commissions,
or
expenses paid or incurred by the Company for or in connection with the
underwriting thereof or otherwise in connection with the issue thereof. The
consideration for any Additional Shares of Common Stock issuable pursuant to
any
Common Stock Equivalents shall be the consideration received by the Company
for
issuing such Common Stock Equivalents, plus the additional consideration payable
to the Company upon the exercise, conversion or exchange of such Common Stock
Equivalents. In case of the issuance at any time of any Additional Shares of
Common Stock or Common Stock Equivalents in payment or satisfaction of any
dividend upon any class of stock other than Common Stock, the Company shall
be
deemed to have received for such Additional Shares of Common Stock or Common
Stock Equivalents a consideration equal to the amount of such dividend so paid
or satisfied. In any case in which the consideration to be received or paid
shall be other than cash, the Board of Directors of the Company shall determine
in good faith the fair market value of such consideration and promptly notify
the Holder of its determination of the fair market value of such consideration
prior to payment or accepting receipt thereof. If, within thirty (30) days
after
receipt of said notice, the Holder shall notify the Board of Directors of the
Company in writing of its objection to such determination, a determination
of
fair market value of such consideration shall be made by an appraiser selected
by the Company and approved by the Holder. If the Company and the Holder are
unable to agree on the selection of an appraiser, the issue of selection of
an
appraiser shall be submitted to the American Arbitration
Association.
(g)
Readjustment
of Exercise Price.
Upon
the expiration of the right to convert, exchange or exercise any Common Stock
Equivalent the issuance of which effected an adjustment in the Exercise Price,
if such Common Stock Equivalent shall not have been converted, exercised or
exchanged, the number of shares of Common Stock deemed to be issued and
outstanding by reason of the fact that they were issuable upon conversion,
exchange or exercise of any such Common Stock Equivalent shall no longer be
computed as set forth above, and the Exercise Price shall forthwith be
readjusted and thereafter be the price which it would have been (but reflecting
any other adjustments in the Exercise Price made pursuant to the provisions
of
this Section 9 after the issuance of such Common Stock Equivalent) had the
adjustment of the Exercise Price been made in accordance with the issuance
or
sale of the number of Additional Shares of Common Stock actually issued upon
conversion, exchange or issuance of such Common Stock Equivalent and thereupon
only the number of Additional Shares of Common Stock actually so issued shall
be
deemed to have been issued and only the consideration actually received by
the
Company shall be deemed to have been received by the Company.
7
(h)
Treasury
Shares.
In
making any adjustment in the Exercise Price hereinbefore provided in this
Section 9, the number of shares of Common Stock at any time outstanding shall
not include any shares thereof then directly or indirectly owned or held by
or
for the account of the Company.
(i)
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.
(j)
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, cash or property 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.
(k)
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 (x) any sale of
all
or substantially all of its assets in one or a series of related transactions,
(y) any tender offer or exchange offer (whether by the Company or another
Person) pursuant to which holders of Common Stock are permitted to tender or
exchange their shares for other securities, cash or property, or (z) 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 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 ten 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.
8
10.
Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. If any fraction of a Warrant Share
would, except for the provisions of this Section, be issuable upon exercise
of
this Warrant, the number of Warrant Shares to be issued will be rounded up
to
the nearest whole share.
11.
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
the Placement Agent Agreement 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 the Placement Agent Agreement 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 by nationally recognized overnight
courier service or (iv) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices or communications shall
be as
set forth in the Placement Agent Agreement.
12.
Registration
Rights Agreement.
The
Warrant Shares for which this Warrant is exercisable are entitled to the
benefits and subject to the limitations of the Registration Rights Agreement,
which include registration rights for the Warrant Shares.
13.
Miscellaneous.
(a)
Subject
to the restrictions on transfer set forth herein, this Warrant and the
registration rights set forth in the Registration Rights Agreement may be
assigned by the Holder. This Warrant may not be assigned by the Company except
to a successor in the event of a sale of all or substantially all of the
Company’s assets or a merger or acquisition of the Company. 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 sentences, 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
Company will not, by amendment of its governing documents 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 action as may be reasonably necessary or appropriate in
order
to protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company (i) will not increase the par value
of
any Warrant Shares above the amount payable therefor on such exercise, (ii)
will
take all such action as may be reasonably necessary or appropriate in order
that
the Company may validly and legally issue fully paid and nonassessable Warrant
Shares on the exercise of this Warrant, and (iii) will not close its stockholder
books or records in any manner which interferes with the timely exercise of
this
Warrant.
9
(C)
GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL.
ALL
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING REGARD TO ANY APPLICABLE
PRINCIPALS OF CONFLICTS OF LAW. EACH PARTY 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 ANY OF THE TRANSACTION
DOCUMENTS), 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, 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 HEREBY WAIVES ALL RIGHTS TO A TRIAL BY
JURY.
(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.
[REMAINDER
OF ▇▇▇▇ INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
10
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
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WENTWORTH
II, INC.
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Name:
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Title:
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ANNEX
A
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 within Warrant
to
purchase ____________ shares of Common Stock of OmniaLuo, Inc. to which the
within Warrant relates and appoints ________________ attorney to transfer said
right on the books of OmniaLuo, Inc. with full power of substitution in the
premises.
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Dated:
______________,
_____
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(Signature
must conform in all respects to name of holder
as
specified on the face of the Warrant)
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Address
of Transferee
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In
the presence of:
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ANNEX
B
FORM
OF EXERCISE NOTICE
[To
be
executed by the Holder to exercise the right to purchase shares of Common Stock
under the foregoing Warrant]
To:
OMNIALUO, INC.
The
undersigned is the Holder of Warrant No. _______ (the “Warrant”)
issued
by OmniaLuo, Inc., a Delaware corporation (the “Company”).
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
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1.
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The
Warrant is currently exercisable to purchase a total of ______________
Warrant Shares.
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2.
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The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
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3.
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The
Holder intends that payment of the Exercise Price shall be made as
(check
one):
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_____ “Cash
Exercise” under Section 4
_____ “Net
Issuance Exercise” under Section 4
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4.
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If
the Holders has elected a Cash Exercise, the Holder shall pay the
sum of
$____ to the Company in accordance with the terms of the
Warrant.
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5.
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Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the
Warrant.
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6.
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Following
this exercise, the Warrant shall be exercisable to purchase a total
of
______________ Warrant Shares.
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Dated:
______________,
_____
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Name
of Holder:
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(Print)
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By:
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Name:
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Title:
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(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
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ANNEX
C
WARRANT
SHARES EXERCISE LOG
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DATE
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NUMBER
OF WARRANT SHARES AVAILABLE TO BE EXERCISED
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NUMBER
OF WARRANT SHARES EXERCISED
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NUMBER
OF WARRANT SHARES REMAINING TO BE EXERCISED
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