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EXHIBIT 10.9(a)
Warrant to purchase
250,000 Shares
Stock Purchase Warrant
To purchase Common Stock of
Advanced Optics Electronics, Inc.
Expires August 23, 2005 unless extended
Pursuant to the terms thereof
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Warrant Agreement 1
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THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE OFFERED FOR SALE. SOLD, PLEDGED ASSIGNED OR OTHERWISE
DISPOSED OF, AND NO TRANSFER OF THE SECURITIES WILL BE MADE BY THE COMPANY OR
ITS TRANSFER AGENT, IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m., New York Time, on August 23, 2005.
WARRANT TO PURCHASE 250,000 SHARES OF COMMON STOCK
OF
ADVANCED OPTICS ELECTRONICS, INC.
This is to certify that Xxxxxx X. Xxxxxx (the "Holder") is entitled to purchase,
subject to the provisions of this warrant, from Advanced Optics Electronics,
Inc., a Nevada corporation (the "Company"), up to 250,000 fully paid, validly
issued and non-assessable shares of Common Stock ("Common Stock") of the
Company, par value $.001 per share, at an exercise price of $0.41 per share at
any time during the period from the date hereof until 5:00 p.m. Eastern Time, on
August 23, 2005. The shares of Common Stock deliverable upon such exercise are
hereafter sometimes referred to as "Warrant Shares", and the exercise price of a
Warrant Share, as the same may be adjusted as detailed below under the Anti
Dilution Provisions, is hereinafter sometimes referred to as the "Exercise
Price".
EXERCISE OF WARRANT. This Warrant may be exercised in whole or in part on or
after the date hereof and until August 23, 2005, provided, however, that if such
a day is a day on which the banking institution in the state of New York are
authorized by law to close, then this Warrant may be exercised on the next
succeeding day which shall not be such a day. This Warrant may be exercised by
presentation and surrender hereof to the Company at its principal office or to
the Company's warrant agent, if any has been so appointed, with the Purchase
Form attached hereto duly executed and accompanied by payment of the Exercise
Price, in cash or by certified or bank cashier's check, for the number of
Warrant Shares specified in such form. The Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of any such
exercise, provided that such exercise is in accordance with the provisions set
forth herein. As soon as practicable after each such exercise of the Warrant,
the Company shall issue or cause to be issued and delivered to the Holder a
certificate or certificates for the Warrant Shares, registered in the name of
the Holder. Upon exercise, the Holder shall be deemed to be the holder of record
of the Warrant Shares issuable upon such exercise, notwithstanding that the sock
transfer books of the Company shall then be closed or that certificates
representing such Warrant Shares shall not then be physically delivered to the
Holder.
RESERVATION OF SHARES. The Company shall at all times reserve for issuance
and/or delivery upon exercise of this Warrant such number of shares of Common
Stock as shall be required for issuance and delivery upon exercise of this
Warrant.
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FRACTIONAL SHARES. No fractional shares or script representing fractional shares
shall be issued upon the exercise of this Warrant. With respect to any fraction
of a share remaining upon the full exercise hereof, the Company shall pay to the
Holder in lieu of the issuance of any fractional share which is otherwise
issuable an amount of cash based on the market value of the Common Stock on the
last trading day prior to the exercise date.
LOSS OF WARRANT. Upon receipt by the Company or its warrant agent, if any, of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date.
RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled to any
rights of a shareholder in the Company, either at law or equity, and the rights
of the Holder are limited to those expressed in the Warrant and are not
enforceable against the Company except to the extent set forth herein. The
acceptance of this Warrant by the Holder shall be deemed consent by the Holder
for the Company to enter into any warrant agreement with a warrant agent,
provided such warrant agreement does not adversely affect any of the rights of
the Holder set forth in this Warrant.
ANTI-DILUTION PROVISIONS. The Exercise Price shall be subject to adjustment as
set forth below:
In case the Company shall hereafter (A) pay a dividend or make a distribution on
its Common Stock in shares of its Common Stock, (B) subdivide its outstanding
shares of Common Stock, or (C) combine its outstanding shares of Common Stock
into a smaller number of shares, the Exercise Price in effect immediately prior
to such action shall be adjusted so that the Holder, upon exercise, shall be
entitled to receive the number of shares of Common Stock of the Company which
the Holder would have owned immediately following such action had such Warrant
been exercised immediately prior hereto. An adjustment made pursuant to this
subsection shall become effective immediately after the record date in the case
of a dividend and shall become effective immediately after the effective date in
the case of a subdivision or combination.
After each adjustment of the Exercise Price pursuant to this subsection, the
number of shares of Common stock purchasable upon the exercise of the Warrant
shall be the number of Warrant Shares receivable upon exercise hereof prior to
such adjustment multiplied by a fraction, the numerator of which shall be the
original Exercise Price as defined above, and the denominator of which shall be
such adjusted Exercise Price.
In the event the Company at any time or from time to time after the date hereof
and prior to the exercise of the warrant shall make or issue, or fix a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in securities of the Company other than
shares of Common Stock, then and in each such event provision shall be made so
that the Holder shall receive upon exercise of this Warrant in addition to the
number of
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shares of Common Stock receivable hereupon, the amount of such other securities
of the Company that it would have received had the Warrant been exercised on the
date of such event and had thereafter, during the period from the date of such
event to and including the exercise date, retained such securities receivable by
it as aforesaid during such period giving application to all adjustments called
for during such period under this Warrant with respect to the rights of the
Holder.
No adjustment in the Exercise Price shall be required to be made unless such
adjustment would require an increase or decrease of at least $.05; provided,
however, that any adjustments which by reason of this subsection are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section (f) shall be made to
the nearest cent or to the nearest tenth of a share, as the case may be, but in
no event shall the Company be obligated to issue fractional shares upon the
exercise of any Warrant.
No adjustment of the Exercise Price shall be made except on the conditions set
forth in this Section. Without limitation of the foregoing, there shall be no
adjustment pursuant to this Section should the Company issue any capital stock
for cash or other consideration on terms approved by the Board of Directors.
In case of any (A) reclassification or change of outstanding shares of Common
Stock issuable upon exercise of this Warrant, (B) consolidation or merger of the
Company with or into another corporation where the Company is not the surviving
entity or (C) sale or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, then, as a condition of
such reclassification, change, consolidation, merger, sale or conveyance, the
Company, or such successor or purchasing corporation, as the case may be, shall
make lawful and adequate provision whereby the Holder of the Warrant shall have
the right thereafter to receive on exercise of such Warrant the kind and amount
of shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, merger, sale or conveyance. Such
provisions shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided elsewhere in this
Section (f). The above provisions of this Section (f) shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
In each case of an adjustment or readjustment of the Exercise Price, the
Company, at its expense, shall prepare a certificate showing such adjustment or
readjustment signed by the duly elected Treasurer or Chief Financial Officer of
the Company (the "Adjustment Certificate") and shall mail the Adjustment
Certificate, by first class mail, postage prepaid, to the Holder. The Adjustment
Certificate shall set forth such adjustment or readjustment, including a brief
summary of the facts upon which such adjustments or readjustments is based
including a statement of the Exercise Price and the number of shares of Common
Stock or other securities issuable upon exercise of each Warrant immediately
before and after giving effect to the applicable adjustment or readjustment. No
failure to mail the Adjustment Certificate nor any defect therein or in the
mailing thereof shall affect the validity thereof except as to the Holder to
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whom the Company failed to mail such Adjustment Certificate, or except as to the
Holder whose Adjustment Certificate was defective.
TRANSFERABILITY; INVESTMENT REPRESENTATIONS. The Holder shall not give, grant,
sell, exchange, transfer legal title, pledge, assign or otherwise encumber or
dispose of this Warrant unless the Company first receives an opinion of counsel
satisfactory to the Company that the Warrant may be transferred to the proposed
transferee in compliance with an exemption under the Securities Act or a safe
harbor provision of Regulation S under the Securities Act. The Holder, by
acceptance of hereof, represents and warrants that (a) it is acquiring this
Warrant for its own account for investment purposes only, and not with a view to
its resale or distribution and (b) it has no present intention to resell or
otherwise dispose of all or part of this Warrant. The Company may condition the
exercise hereof and the issuance or transfer of Warrant Shares on the receipt of
such representations and agreements as may be requested by the Company in order
to permit such issuance or transfer to be made pursuant to exemptions from
registration under federal and applicable state securities laws. Each
certificate representing this Warrant (or any part thereof) and any Warrant
Shares shall bear appropriate legends setting forth these restrictions on
transferability.
REGISTRATION RIGHTS. In the event that the Company proposes to file a
registration statement with respect to any class of securities (other than
pursuant to a registration statement on Forms S-4 or S-8 or any successor form)
under the Securities Act of 1933, as amended (the "Securities Act") the Company
shall notify the Holder at least twenty (20) days prior to the filing of such
registration statement and will offer to include in such registration statement
all or any portion of the Warrant Shares. At the written request of the Holder
delivered to the Company within ten (10) days after receipt of the Company's
notice, the holder shall state the number of Warrant Shares that it wishes to
sell or distribute publicly under the proposed registration statement. The
Company will use its best efforts, through its officers, directors, auditors and
counsel in all matters necessary or advisable, to cause such registration
statement to become effective as promptly as practicable. In that regard, the
Company makes no representation or warranties as to its ability to have the
registration statement declared effective. In the event the Company is advised
by the staff of the Securities and Exchange Commission, NASDAQ or any
self-regulatory or state securities agency that the inclusion of the Warrant
Shares will prevent, preclude or materially delay the effectiveness of a
registration statement filed by the Company with respect to any securities other
than the Warrant Shares, the Company, in good faith, may amend such registration
statement to exclude the Warrant Shares without otherwise affecting the Holder's
rights herein with respect to any other registration statement.
Underwriter's Restrictions. If a registration statement is filed with respect to
an underwritten registration on behalf of the Company, and if the underwriter
thereof advises the Company in writing that, in its opinion, the number of
Warrant Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of securities by the underwriter, then the Holder
shall delay his offering and sale for such period ending on the earliest of (a)
180 days following the effective date of the Company's registration statement,
or (b) such date as the Company, managing underwriter and Holder shall otherwise
agree. In the event of such delay, the Company shall file such supplements,
post-effective amendments and take any such other steps as may be necessary
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to permit such Xxxxxx to make his proposed offering and sale for a minimum
period of ninety (90) days immediately following the end of such period of
delay.
Indemnification. In the event of any registrations that contain this Warrant,
the Company shall indemnify the Holder and its officers and directors against
all losses, claims damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus (and as amended or supplemented) relating to such
registration, or caused by any omission or alleged omission to state a material
fact required to be stated herein or necessary to make the statements therein
not misleading in light of the circumstances under which they are made, unless
such statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the Holder expressly for use
therein. The Holder shall notify the Company as soon as practicable following
receipt of notice of any action or proceeding or threatened action or proceeding
related to any alleged liability in respect of which indemnity may be sought
against the Company, and the Company shall, at its sole option, assume the
defense of such action or proceeding (employing counsel reasonably satisfactory
to the Holder); provided, however, failure to so notify the Company shall not
relieve the Company of its indemnification obligations hereunder unless such
failure materially adversely affects the Company's defense of such action or
proceeding. The Holder shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of the Company unless the employment of
such counsel has been specifically authorized by the Company. The Company shall
not be liable to indemnify any person for any settlement of any such action or
proceeding effected without the Company's written consent. The Holder shall also
indemnify the Company, its officers and directors and each underwriter of the
offering so registered with respect to losses, claims, damages and liabilities
caused by any untrue statement of a material fact or omission to state a
material fact required to be stated therein made in reliance upon and in
conformity with information furnished by the Holder to the Company in writing
expressly for use in such registration statement or prospectus.
Expenses. All expenses of any registration referred to in this Warrant, except
any fees and disbursements of counsel to the Holder, underwriting commissions or
discounts, any transfer or other taxes applicable to the Warrant and/or Warrant
Shares, shall be borne by the Company.
NOTICES. All notices and other communications which are required or may be given
under this Warrant shall be in writing and shall be deemed to have been duly
given when delivered in person or transmitted by fax, one (1) day after being
sent by overnight courier service or three (3) days after being mailed,
first-class postage prepaid. If notice is given by registered or certified first
class mail, postage prepaid, return receipt requested, the return receipt shall
be conclusive evidence of the notice having been mailed on the date set forth.
Any notice hereunder to the Company shall be addressed to it at:
0000 Xxxxxxxxxx XX #0
Xxxxxxxxxxx, XX 00000
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And any notice to the Employee shall be addressed to him at:
Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
subject to the right of either party to designate in writing at any time some
other address.
MISCELLANEOUS. This Warrant contains the entire agreement and supersedes all
prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof. This Warrant may not be
changed orally, but only by an agreement in writing signed by the party against
whom enforcement is sought; provided however, that this Warrant may be amended
or modified without the consent of the Holder if such amendment or modification
does not adversely affect the rights of the Holder hereunder. This Warrant will
not be assigned by either party hereto and shall be interpreted under the laws
of the state of Nevada without application to the principles of conflicts of
laws.
Advanced Optics Electronics, Inc.
By /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Chief Executive Officer
Dated: August 23, 2000
Warrant Agreement 7
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PURCHASE FORM
NOTICE OF EXERCISE -- WARRANT
(TO BE EXECUTED ONLY UPON EXERCISE OF THE WARRANT IN WHOLE OR IN PART)
TO: ADVANCED OPTICS ELECTRONICS, INC.
The undersigned registered Holder of the accompanying Warrant hereby exercises
such Warrant or portion thereof for, and purchases thereunder, ______________(1)
shares of Common Stock (as defined in such Warrant) and herewith makes payment
in the amount and manner set forth below, as of the date written below. The
undersigned requests that the certificates for such shares of Common Stock be
issued in the name of, and delivered to, __________________________ whose
address is _____________________________________.
The Exercise Price is paid by wire transfer to the account of the Company in the
amount of $_________________.
Upon exercise pursuant to this Notice of exercise, the Holder will be in
compliance with the Limitation on exercise (as defined in the Securities
Purchase Agreement pursuant to which this Warrant was issued).
Dated:
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(Name must conform to name of Holder as
specified on the face of the Warrant)
Name:
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Title:
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Date of exercise:
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(1) Insert the number of shares of Common Stock as to which the accompanying
Warrant is being exercised. In the case of partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the accompanying warrant, to the holder surrendering the same.
Warrant Agreement 8
