Exhibit 10.19
INYX, INC.
SUBSCRIPTION AGREEMENT
Inyx, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned has received and read the Confidential Amended Private
Offering Memorandum dated October 9, 2003 (the "Offering Memorandum"), pursuant
to which Inyx, Inc., a Nevada corporation (the "Company"), is offering for sale
a maximum of $3,000,000 of common stock ("Shares") of the Company at an issue
price of $1.00 per Share. For each 100,000 shares of common stock subscribed,
the undersigned shall also receive a Stock Purchase Warrant in the form attached
hereto as Schedule 2 to purchase 50,000 shares of common stock.
1. Subscription. Subject to the terms and conditions of this Subscription
Agreement and the provisions of the Offering Memorandum, the
undersigned hereby subscribes for the Shares designated on the
signature page hereof (minimum subscription $100,000 unless a lesser
amount is allowed by the Company). In connection with such
subscription, the undersigned hereby tenders to the Company two
executed counterparts of this Subscription Agreement, together with a
wire transfer in an amount equal to the full purchase price of the
Shares subscribed for hereunder to the following address:
c/o Compass Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
Account No. ▇▇▇▇▇▇▇▇
ABA Code ▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
The undersigned hereby agrees that this subscription is irrevocable and
shall survive the death or disability of the undersigned. The undersigned
further understands and agrees that the Company may, in its sole discretion,
decline to accept this subscription, in which case all instruments tendered
herewith will be promptly returned. If the Company accepts this subscription,
such acceptance will be signified by the Company, executing the acknowledgment
on the appropriate notarization page of each copy hereof tendered by the
undersigned and causing one such acknowledged copy to be returned to the
undersigned.
The undersigned understands and agrees that upon obtaining a minimum of
$2,000,000 in such account, all subscription funds received paid to the Company
and will be applied to the uses described in the Offering Memorandum, even if
less than the maximum offering as are committed.
2. Representations, Warranties, and Covenants of the Undersigned. The
undersigned hereby represents and warrants to and covenants with the
Company and its officers, directors, agents and employees, as follows:
(a) The undersigned is an "accredited investor", as defined in
Regulation D as promulgated pursuant to the Securities Act of
1933, as amended (the "1933 Act"), and certain state
securities laws, and has initialed each of the following
definitions which are applicable to the undersigned. The
undersigned is (initial one or more):
_______
Initial
(1) A bank as defined in Section 3(a)(2) of the Act, or
any savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Act whether
acting in its individual or fiduciary capacity; any
broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934; any insurance
company as defined in Section 2(13) of the Act; any
investment company registered under the Investment
Company Act of 1940 or a business development company
as defined in Section 2(a)(48) of that Act; any Small
Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958; any
plan established and maintained by a state, its
political subdivisions, or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees, if
such plan has total assets in excess of $5,000,000;
any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 if
the investment decision is made by a plan fiduciary,
as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association,
insurance company, or registered investment adviser,
or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan,
with investment decisions made solely by persons that
are accredited investors;
_______
Initial
(2) A private business development company as defined in
Section 202(a)(22) of the Investment Advisors Act of
1940;
_______
Initial
(3) An organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or
similar business trust, or partnership, not formed
for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
_______
Initial
(4) A director or executive officer of the issuer of the
securities being offered or sold;
_______
Initial
(5) A natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of
his purchase exceeds $1,000,000;
2
_______
Initial
(6) A natural person who had an individual income in
excess of $200,000 in each of the two most recent
years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income
level in the current year;
_______
Initial
(7) A trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a
sophisticated person as described in Rule
506(b)(2)(ii); or
_______
Initial
(8) An entity in which all of the equity owners are
accredited investors.
The undersigned acknowledges that the Company may require additional information
concerning the undersigned's suitability regarding an investment in the Shares.
(b) The undersigned understands that the following information is
being furnished to determine whether sales of the Shares may
be made to the undersigned pursuant to Section 4(2) of the
1933 Act and Regulation D promulgated thereunder and
applicable state securities laws. The undersigned understands
that (i) the information contained herein will be relied upon
for purposes of such determination and (ii) the Shares will
not be registered under the 1933 Act in reliance upon the
exemptions from registration provided by Section 4(2) of the
1933 Act and Regulation D promulgated thereunder. The
undersigned represents and warrants to the Company and its
officers, directors, agents and employees that (i) the
information contained herein is complete and accurate and may
be relied upon by such parties and (ii) the undersigned will
notify the Company immediately of any change in any of such
information occurring prior to the closing of the purchase of
any Shares by the undersigned. All information furnished
herein or hereby is for the sole use of the Company and the
Company's representatives and counsel and will be held in
confidence by such persons, except that this Agreement may be
furnished to such parties as may be deemed desirable to
establish compliance with federal, state or foreign securities
laws.
(c) The undersigned has adequate net worth and means of providing
for his current needs and possible personal contingencies, and
the undersigned has no need, and anticipates no need in the
foreseeable future, to sell the Shares for which the
undersigned hereby subscribes. The undersigned is able to bear
the economic risks of this investment and, consequently,
without limiting the generality of the foregoing, the
undersigned is able to hold his Shares for an indefinite
period of time and has a sufficient net worth to sustain a
loss of his entire investment in the Company in the event such
loss should occur. The overall commitment by the undersigned
to investments that are not readily marketable is not
disproportionate to his net worth, and his acquisition of
Shares will not cause such overall commitment to become
excessive.
(d) The undersigned has such knowledge and experience in financial
and business matters that the undersigned is capable of
evaluating the merits and risks of an investment in the
Shares.
3
(e) The undersigned has received and read and is familiar with the
Offering Memorandum, together with all exhibits annexed
thereto and any amendments or supplements thereto, and the
undersigned confirms that all documents, records, and books
pertaining to the undersigned's proposed investment in the
Company have been made available to the undersigned.
(f) The undersigned has had an opportunity to ask questions of and
receive satisfactory answers from the Company, or any person
or persons acting on the Company's behalf, concerning the
terms and conditions of this investment and all such questions
have been answered to the full satisfaction of the
undersigned.
(g) The Shares for which the undersigned hereby subscribes will be
acquired for the undersigned's own account for investment and
not with the view toward resale or redistribution in a manner
which would require registration under the 1933 Act, and the
undersigned does not now have any reason to anticipate any
change in the undersigned's circumstances or other particular
occasion or event which would cause the undersigned to sell
his Shares.
(h) The undersigned represents that it has been called to his
attention, both in the Offering Memorandum and by those
individuals with whom the undersigned has dealt in connection
with the undersigned's investment in the Shares that and
investment in the Shares involves a high degree of risk which
may result in the loss of the total amount of the
undersigned's investment.
(i) The undersigned has received no representations or warranties
(other than contained in the Offering Memorandum) from the
Company or its affiliates, or their employees or agents and,
in making his investment decision, the undersigned is relying
solely on the information contained in the Offering Memorandum
and the exhibits attached hereto, the supplemental information
concerning the Company and investigations made by the
undersigned.
(j) The undersigned is now a bona fide resident of the state set
forth herein and the address and social security number or
federal tax identification number set forth herein is the true
and correct residence and social security number or federal
tax identification number of the undersigned. The undersigned
has no present intention of becoming a resident of any other
state or jurisdiction. If the undersigned is a corporation,
partnership, trust or other form of business organization, it
represents and warrants that it was formed under the laws of,
and its principal place of business is within, such state and
that it was not organized or reorganized for the purpose of
acquiring the Shares.
(k) The undersigned acknowledges that the Company has made
available to the undersigned or the undersigned's personal
advisors the opportunity to obtain additional information to
verify the accuracy of the information contained in the
Offering Memorandum and to evaluate the merits and risks of
this investment, including, but not limited to, the income tax
consequences of the investment. The undersigned represents
that, by reason of his business and financial experience, the
undersigned has acquired the capacity to protect his own
interest in investments of this nature. In reaching the
conclusion that the undersigned desires to acquire the Shares,
the undersigned has carefully evaluated his financial
resources and investment position and the risks associated
with this investment and acknowledges that he is able to bear
the economic risks of this investment.
4
(l) The Shares have been offered to the undersigned without any
form of general solicitation or advertising of any type by or
on behalf of the Company or any of its officers, directors,
employees or agents, or any other person.
(m) The undersigned understands that neither the Securities and
Exchange Commission nor any securities administrator of any
state has made any finding or determination relating to the
fairness of an investment in the Shares and that neither the
Securities and Exchange Commission nor any securities
administrator of any state has or will recommend or endorse
any offering of the Shares.
(n) If the undersigned is a pension, profit sharing or other
employee benefit plan (a "Plan"), an investment in a
Partnership will not cause the Partnership's assets to become
assets of the Plan, and the subscription hereby will not
violate any duty the undersigned owes to the Plan.
(o) If the undersigned is a corporation, partnership, trust or
other legal entity, the undersigned hereby represents and
warrants that it is duly organized and validly existing as a
legal entity, in good standing under its state of
incorporation, and that the subscription hereby has been duly
authorized by appropriate actions of its governing board.
3. Indemnification. The undersigned acknowledges that he or she
understands the meaning and legal consequences of the representations,
warranties and covenants in paragraph 2, 3, 4, and 5 hereof and that
the Company has relied upon such representations, warranties, and
covenants, and he or she hereby agrees to indemnify and hold harmless
the Company and its officers, directors, controlling persons, agents,
and employees from and against any and all loss, damage or liability
due to or arising out of a breach of any such representation, warranty
or covenant made herein. Notwithstanding the foregoing, however, no
representation, warranty, acknowledgment or agreement made herein by
the undersigned shall in any manner be deemed to constitute a waiver of
any rights granted to the undersigned under federal, state or foreign
securities laws. All representations, warranties, and covenants
contained in this Subscription Agreement and the indemnification
contained in this paragraph 4, shall survive the acceptance of this
subscription.
4. Limitation on Transfer of Shares. The undersigned acknowledges that he
or she is aware that there are substantial restrictions on the
transferability of the Shares. Since neither the Shares, nor the common
stock underlying the Shares (the "Securities") will initially be
registered under the 1933 Act or of any applicable state securities
laws, the Securities may not be, and the undersigned agrees that they
shall not be, sold unless the Securities are registered or such sale is
exempt from such registration under the 1933 Act or state securities
laws or regulations. The undersigned further acknowledges that the
Company is under no obligation to aid him in obtaining any exemption
from the registration requirements. The undersigned also acknowledges
that he or she shall be responsible for compliance with all conditions
on transfer imposed by any securities administrator of any state and
for any expenses incurred by the Company for legal or accounting
services in connection with reviewing such a proposed transfer and/or
issuing an opinion in connection therewith.
5. Compliance with Securities Laws. The undersigned understands and agrees
that the following restrictions and limitations are applicable to the
undersigned's purchase and resales or other transfers of the Securities
pursuant to the ▇▇▇▇ ▇▇▇.
(a) The undersigned agrees that the Securities shall not be sold
or otherwise transferred unless the Securities are registered
under the 1933 Act and state securities laws or are exempt
from applicable registration requirements.
5
(b) A legend in substantially the following form has been or will
be placed on the certificate(s) or other document(s)
evidencing the Securities:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES ACT, HAVE BEEN
OBTAINED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE OR SOLD UNLESS A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES ACTS WITH RESPECT TO THE
INTERESTS IS THEN IN EFFECT OR EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES
ACTS ARE THEN APPLICABLE TO THE OFFER OR SALE.
(c) Stop transfer instructions have been or will be imposed with
respect to the Securities so as to restrict resale or other
transfer thereof, subject to the further items hereof,
including the provisions of the legend set forth in
subparagraph (b) above.
6. Registration Rights. The Company agrees to extend to the Subscribers
executing this Agreement the registration rights described in attached
Schedule 1. In addition, the Company agrees that, on or before December
15, 2003, it will file a registration statement on Form SB-2 to
register for resale the Shares and the shares of common stock issuable
upon exercise of the Warrants. The Company will use reasonable
diligence to have the registration statement declared effective on or
before March 31, 2004. In the event the registration statement is not
effective by March 31, 2003, the Company will issue to the undersigned
additional Warrants at an exercise price of $1.00 per share in an
amount equal to 10% of the original number of Shares for each month
that the registration statement remains ineffective, for a maximum of
five months.
6
SIGNATURE PAGE FOR INDIVIDUALS
IN WITNESS WHEREOF, subject to acceptance by the Company, the
undersigned has completed this Subscription Agreement to evidence his
subscription for the number of Shares set forth below, on this _____ day of
October, 2003.
Amount of Subscription
Number of Shares at the purchase price (minimum of $100,000 required): _________
Shares To Be Registered as follows: (check one)
__ Individual Ownership __ Joint Tenants With
(One signature required Right of Survivorship
below) (All tenants must sign below)
__ Tenants in Common __ Community Property
(All tenants must (Both spouses must
sign below) sign below)
_______________________________ _______________________________
Signature Signature
_______________________________ _______________________________
Name(s) type or printed Name(s) typed or printed
_______________________________ _______________________________
Social Security Number Social Security Number
Subscription Accepted:
INYX, INC.
By:
_______________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
7
SIGNATURE PAGE FOR ENTITIES AND TRUSTS
IN WITNESS WHEREOF, subject to acceptance by the Company, the
undersigned has completed this Subscription Agreement to evidence his
subscription for the number of Shares set forth below, on this ______ day of
October, 2003.
Amount of Subscription
Number of Shares at the purchase price (minimum $100,000 required): $__________
(check one)
___ Corporation under the laws of ___ Partnership
the State of __________
___ Limited Partnership under the ___ Trust
laws of _____________
___ Other (Specify): ___ Limited Liability Company
_____________________________________________________
_______________________________ _______________________________
Address (Name of entity)
_______________________________ By:____________________________
City Zip
______________________________ _______________________________
Taxpayer Identification No. Name
_______________________________
Representative Capacity
.................................................................................
Subscription Accepted:
INYX, INC.
By:____________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
8
SCHEDULE 1
REGISTRATION RIGHTS
This constitutes Schedule 1 to the Subscription Agreement (as it may be amended
from time to time, the "Subscription Agreement") accompanying the Private
Placement Memorandum dated October 9, 2003 between INYX, INC., a company
incorporated under the laws of Nevada (the "Company"), those persons executing a
Subscription Agreement (each an Inyx Shareholder and collectively the Inyx
Shareholders).
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the Subscription Agreement are used
herein as therein defined. In addition, the following terms, as used herein,
have the following meanings:
Commission means the Securities and Exchange Commission.
Holder means a person who owns Registrable Securities and is either an Inyx
Shareholder or a transferee of an Inyx Shareholder who has agreed in writing to
be bound by the terms of the Subscription Agreement and this Schedule 1.
Piggyback Registration means a piggyback registration as defined in Section 2.02
of this Schedule 1.
Registrable Securities means (i) the Company Shares issued under Section 1 of
the Subscription Agreement, and (ii) any additional shares of common stock of
the Company issued in respect of the shares referred to in (i) in connection
with a stock split, stock dividend or similar event with respect to the Company
Shares. As to any particular Registrable Securities, such Registrable Securities
shall cease to be Registrable Securities as soon as they (i) have been sold or
otherwise disposed of pursuant to a registration statement that was filed with
the Commission and declared effective under the Securities Act, (ii) are
eligible for sale pursuant to Rule 144 without being subject to applicable
volume limitations thereunder, (iii) have been otherwise sold, transferred or
disposed of by a Holder to any Person that is not a Holder, or (iv) have ceased
to be outstanding.
Rule 144 means Rule 144 (or any successor rule of similar effect) promulgated
under the Securities Act.
Selling Holder means any Holder who is selling Registrable Securities pursuant
to a public offering registered hereunder.
Underwriter means a securities dealer who purchases any Registrable Securities
as principal and not as part of such dealer's market-making activities.
SECTION 1.02. Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the corresponding
articles, sections and paragraphs in this Schedule 1 and references to the
parties shall mean the parties to a Subscription Agreement.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Demand Registration. (a) The Inyx Shareholders owing in aggregate
a majority of the Company Shares, on their own behalf and on behalf of the other
Holders, may make up to two written requests for registration under the
Securities Act of all or any part of the Registrable Securities held by the
Holders (each, a "Demand Registration"). Such request will specify the aggregate
number of shares of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. A registration will not
count as a Demand Registration until it has become effective. Should a Demand
Registration not become effective due to the failure the Holders to perform
their obligations under this Schedule 1 or the inability of the requesting
Holders to reach agreement with the Underwriters for the proposed sale price or
other customary terms for such transaction, or in the event the requesting
Holders withdraw or do not pursue the request for the Demand Registration (in
each of the foregoing cases, provided that at such time the Company is in
compliance in all material respects with its obligations under this Schedule 1),
then such Demand Registration shall be deemed to have been effected (provided
that if the Demand Registration does not become effective because of a material
adverse change in the condition (financial or otherwise), business, assets or
results of operations of the Company that occurs subsequent to the date of the
written request made by the requesting Holders, then the Demand Registration
shall not be deemed to have been effected).
(b) In the event that the requesting Holders withdraw or do not pursue a request
for a Demand Registration and, pursuant to Section 2.01(a) hereof, such Demand
Registration is deemed to have been effected, the Holders may reacquire such
Demand Registration (such that the withdrawal or failure to pursue a request
will not count as a Demand Registration hereunder) if the Holders reimburse the
Company for any and all Registration Expenses incurred by the Company in
connection with such request for a Demand Registration; provided that the right
to reacquire a Demand Registration may be exercised a maximum of two times.
(c) If the Selling Holders so elect and to the extent feasible, the offering of
such Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. The Selling Holders shall have the right to
select the managing Underwriters and any additional investment bankers and
managers to be used in connection with such offering, subject to the Company's
approval, which approval shall not be unreasonably withheld.
(d) The Selling Holders will inform the Company of the time and manner of any
disposition of Registrable Securities, and agree to reasonably cooperate with
the Company in effecting the disposition of the Registrable Securities in a
manner that does not unreasonably disrupt the public trading market for the
Common Stock.
(e) The Company will have the right to preempt any Demand Registration with a
primary registration by delivering written notice (within five business days
after the Company has received a request for such Demand Registration) of such
intention to the Selling Holders indicating that the Company has identified a
specific business need and use for the proceeds of the sale of such securities
and the Company shall use commercially reasonable efforts to effect a primary
registration within 60 days of such notice. In the ensuing primary registration,
the Holders will have such piggyback registration rights as are set forth in
Section 2.02 hereof. Upon the Company's preemption of a requested Demand
Registration, such requested registration will not count as a Demand
Registration; provided that a Demand Registration will not be deemed preempted
if the Holders are permitted to sell all requested securities in connection with
the ensuing primary offering by exercising their piggyback registration rights
as set forth in Section 2.02 hereof. The Company may exercise the right to
preempt only twice in any 360-day period; provided, that during any 360 day
period there shall be a period of at least 120 consecutive days during which the
Selling Holders may effect a Demand Registration.
10
(f) Subject to Section 2.03 hereof, the Company will be entitled to include in a
Demand Registration shares of Common Stock for its own account or for the
account of other Persons.
(g) Notwithstanding anything to the contrary contained herein, the Company shall
be entitled to (i) postpone the filing of the Registration Statement required to
be prepared and filed by it hereunder or (ii) withdraw the Registration
Statement after its filing but before it has been declared effective, if, in
either case, the Company in its good faith discretion determines that there has
occurred or is occurring a material non-public event which such registration
would interfere with or which cannot at such time be disclosed in the
registration statement or if such registration statement would interfere in any
material respect with any proposal or plan by the Company to engage in any
financing or any material acquisition or disposition by the Company or any
subsidiary thereof of the capital stock or substantially all of the assets of
any other Person (other than in the ordinary course of business), any tender
offer or any offering, merger, consolidation, corporate reorganization or
restructuring ("Material Event"). In the event the filing of the Registration
Statement is postponed or withdrawn in accordance with this section 2.01(g), the
Company shall file or refile the Registration Statement within ten (10) Business
Days after the Company, in its good faith discretion, determines that the
Material Event has been completed or terminated.
(h) The Company shall disclose to the Selling Holders the nature of any Material
Event for which it has delayed or withdrawn the Registration Statement or
suspended the use of the Prospectus, provided the Selling Holders agree in
writing to keep any information so disclosed confidential and not complete any
trades of Company Shares until the Company informs the Selling Holders the
information is considered public information or is no longer material, such
notification to the Selling Holders to be given promptly after the information
is considered public or is no longer material.
SECTION 2.02. Piggyback Registration. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
its common stock for its own account or for the account of another Person (other
than a registration statement on Form S-4 or S-8 or pursuant to Rule 415 (or any
substitute form or rule, respectively, that may be adopted by the Commission)),
the Company shall give written notice of such proposed filing to the Holders at
the address set forth in the share register of the Company as soon as reasonably
practicable (but in no event less than 10 days before the anticipated filing
date), and such notice shall offer each Holder the opportunity to register on
the same terms and conditions such number of shares of Registrable Securities as
such Holder may request (a "Piggyback Registration"). Each Holder will have five
business days after receipt of any such notice to notify the Company as to
whether it wishes to participate in a Piggyback Registration; provided that
should a Holder fail to provide timely notice to the Company, such Holder will
forfeit any rights to participate in the Piggyback Registration with respect to
such proposed offering. In the event that the registration statement is filed on
behalf of a Person other than the Company, the Company will use its best efforts
to have the shares of Registrable Securities that the Holders wish to sell
included in the registration statement. If the Company shall determine in its
sole discretion not to register or to delay the proposed offering, the Company
may, at its election, provide written notice of such determination to the
Holders and (i) in the case of a determination not to effect the proposed
offering, shall thereupon be relieved of the obligation to register such
Registrable Securities in connection therewith, and (ii) in the case of a
determination to delay a proposed offering, shall thereupon be permitted to
delay registering such Registrable Securities for the same period as the delay
in respect of the proposed offering. As between the Company and the Selling
Holders, the Company shall be entitled to select the Underwriters in connection
with any Piggyback Registration.
11
SECTION 2.03. Reduction of Offering. Notwithstanding anything contained herein,
if the managing Underwriter of an offering described in Section 2.01 or 2.02
hereof states in writing that the size of the offering that Holders, the Company
and any other Persons intend to make is such that the inclusion of the
Registrable Securities would be likely to materially and adversely affect the
price, timing or distribution of the offering, then the amount of Registrable
Securities to be offered for the account of Holders shall be reduced to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing Underwriter; provided that
in the case of a Piggyback Registration, if securities are being offered for the
account of Persons other than the Company, then the proportion by which the
amount of Registrable Securities intended to be offered for the account of
Holders is reduced shall not exceed the proportion by which the amount of
securities intended to be offered for the account of such other Persons (other
than any Person exercising a demand registration right) is reduced; provided
further that in the case of a Demand Registration, the amount of Registrable
Securities to be offered for the account of the Holder making the Demand
Registration shall be reduced only after the amount of securities to be offered
for the account of the Company and any other Persons has been reduced to zero.
In the event of a reduction pursuant to this Section 2.03 of Registrable
Securities to be offered for the account of Holders, such reduction shall be pro
rata among such Holders based on the number of Registrable Securities each
Holder had proposed to sell.
SECTION 2.04. Preservation of Rights. The Company will not grant any
registration rights to third parties that contravene or are inconsistent with
the rights granted hereunder.
ARTICLE 3
REGISTRATION PROCEDURES
SECTION 3.01. Filings; Information. In connection with a Demand Registration
pursuant to Section 2.01 hereof, the Company will use its reasonable best
efforts to effect the registration of such Registrable Securities as promptly as
is reasonably practicable, and in connection with any such request:
(a) The Company will expeditiously prepare and file with the Commission a
registration statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and available for the sale
of the Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and use its reasonable best efforts to
cause such filed registration statement to become and remain effective for such
period, not to exceed 60 days, as may be reasonably necessary to effect the sale
of such securities; and provided that if (i) the effective date of any
registration statement filed pursuant to a Demand Registration would otherwise
be at least 45 calendar days, but fewer than 90 calendar days, after the end of
the Company's fiscal year, and (ii) the Securities Act requires the Company to
include audited financials as of the end of such fiscal year, the Company may
delay the effectiveness of such registration statement for such period as is
reasonably necessary to include therein its audited financial statements for
such fiscal year.
(b) The Company will, if requested, prior to filing such registration statement
or any amendment or supplement thereto, furnish to the Selling Holders, and each
applicable managing Underwriter, if any, copies thereof, and thereafter furnish
to the Selling Holders and each such Underwriter, if any, such number of copies
of such registration statement, amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein)
and the prospectus included in such registration statement (including each
preliminary prospectus) as the Selling Holders or each such Underwriter may
reasonably request in order to facilitate the sale of the Registrable Securities
by the Selling Holders.
12
(c) After the filing of the registration statement, the Company will promptly
notify the Selling Holders of any stop order issued or, to the Company's
knowledge, threatened to be issued by the Commission and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its reasonable best efforts to qualify the Registrable
Securities for offer and sale under such other securities or blue sky laws of
such jurisdictions in the United States as the Selling Holders reasonably
request; provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph 3.01(d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(e) The Company will as promptly as is practicable notify the Selling Holders,
at any time when a prospectus relating to the sale of the Registrable Securities
is required by law to be delivered in connection with sales by an Underwriter or
dealer, of the occurrence of any event requiring the preparation of a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and promptly
make available to the Selling Holders and to the Underwriters any such
supplement or amendment. Upon receipt of any notice from the Company of the
occurrence of any event of the kind described in the preceding sentence, the
Selling Holders will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt by the Selling Holders and the Underwriters of the
copies of such supplemented or amended prospectus and, if so directed by the
Company, the Selling Holders will deliver to the Company all copies, other than
permanent file and then in the possession of Selling Holders, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective as provided in Section 3.01(a) hereof by the number of days during the
period from and including the date of the giving of such notice to the date when
the Company shall make available to the Selling Holders such supplemented or
amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the sale of such Registrable
Securities.
(g) At the request of any Underwriter in connection with an underwritten
offering, the Company will furnish (i) an opinion of counsel, addressed to the
Underwriters, covering such customary matters as the managing Underwriter may
reasonably request and (ii) a comfort letter or comfort letters from the
Company's independent public accountants covering such customary matters as the
managing Underwriter may reasonably request.
(h) The Company will make generally available to its security holders, as soon
as reasonably practicable, an earnings statement covering a period of 12 months,
beginning within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) The Company will use commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange or quoted on
each inter-dealer quotation system or over-the-counter bulletin board on which
the Common Stock is then listed or quoted.
13
SECTION 3.02. Selling Holder Information. The Company may require Selling
Holders promptly to furnish in writing to the Company such information regarding
such Selling Holders, the plan of distribution of the Registrable Securities and
other information as the Company may from time to time reasonably request or as
may be legally required in connection with any Demand Registration or Piggyback
Registration.
SECTION 3.03. Registration Expenses. In connection with any Demand or Piggyback
Registration, the Company shall pay the following expenses incurred in
connection with such registration (the "Registration Expenses"): (i)
registration and filing fees with the Commission and the National Association of
Securities Dealers, Inc., (ii) fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii)
printing expenses, (iv) fees and expenses incurred in connection with the
listing or quotation of the Registrable Securities, (v) fees and expenses of
counsel to the Company and the reasonable fees and expenses of independent
certified public accountants for the Company (including fees and expenses
associated with the special audits or the delivery of comfort letters) and (vi)
the reasonable fees and expenses of any additional experts retained by the
Company in connection with such registration. The Selling Holders shall pay (A)
any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, (B) fees and expenses of counsel for the Selling Holders
and (C) any out-of-pocket expenses of the Selling Holders.
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.01. Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Selling Holder and its Affiliates and their respective
officers, directors, partners, stockholders, members, employees, agents and
representatives and each Person (if any) which controls a Selling Holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities,
costs and expenses (including reasonable attorneys' fees) caused by, arising out
of, resulting from or related to any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by or contained in or based upon any
information furnished in writing to the Company by or on behalf of such Selling
Holder or any Underwriter expressly for use therein or by the Selling Holder or
Underwriter's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished the Selling Holders or Underwriter with copies of the same. The
Company also agrees to indemnify any Underwriters of the Registrable Securities,
their officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 4.01.
SECTION 4.02. Indemnification by a Selling Holder. Each Selling Holder agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, which controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Selling Holder, but only (a)
with reference to information furnished in writing by or on behalf of such
Selling Holder expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus or (b) as a result of the Selling Holder's failure
to deliver any registration statement or prospectus relating to the Registrable
14
Securities, or any amendment or supplement thereto, or any preliminary
prospectus. Each Selling Holder also agrees to indemnify and hold harmless any
Underwriters of the Registrable Securities, their officers and directors and
each person who controls such Underwriters on substantially the same basis as
that of the indemnification of the Company provided in this Section 4.02.
SECTION 4.03. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 4.01 or
Section 4.02 hereof, such Person (the "Indemnified Party") shall promptly notify
the Person against whom such indemnity may be sought (the "Indemnifying Party")
in writing and the Indemnifying Party, upon the request of the Indemnified
Party, shall retain counsel reasonably satisfactory to such Indemnified Party to
represent such Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party and, in the written opinion of counsel for the Indemnified
Party, representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent (not to be unreasonably withheld), or if there be a
final judgment for the plaintiff, the Indemnifying Party shall indemnify and
hold harmless such Indemnified Parties from and against any loss or liability
(to the extent stated above) by reason of such settlement or judgment.
SECTION 4.04. Contribution. If the indemnification provided for in this Article
4 is unavailable to an Indemnified Party in respect of any losses, claims,
damages or liabilities in respect of which indemnity is to be provided
hereunder, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall to the fullest extent permitted by law contribute to
the amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of such party in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company, a
Selling Holder and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Selling Holder agrees that it would not be just and
equitable if contribution pursuant to this Section 4.04 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article 4, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
15
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and each Selling
Holder shall not be required to contribute any amount in excess of the amount by
which the net proceeds of the offering (before deducting expenses) received by
such Selling Holder exceeds the amount of any damages which such Selling Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Participation in Underwritten Registrations. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, (b) completes and executes all questionnaires, powers
of attorney, custody arrangements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Schedule 1 and (c) furnishes in writing to the Company
such information regarding such Person, the plan of distribution of the
Registrable Securities and other information as the Company may from time to
time request or as may be legally required in connection with such registration.
SECTION 5.02. Rule 144. The Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as the Holders may reasonably request to
the extent required from time to time to enable the Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act, as such Rule
144 may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of Buyer, the Company will
deliver to Buyer a written statement as to whether it has complied with such
reporting requirements.
SECTION 5.03. Holdback Agreements. Each Holder agrees, in the event of an
underwritten offering for the Company (whether for the account of the Company or
otherwise) not to offer, sell, contract to sell or otherwise dispose of any
Registrable Securities or other Common Stock, including any sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 14 days prior to, and during the 180-day period (or such
lesser period as the lead or managing Underwriter may agree) beginning on, the
effective date of the registration statement for such underwritten offering (or,
in the case of an offering pursuant to an effective shelf registration statement
pursuant to Rule 415, the pricing date for such underwritten offering).
SECTION 5.04. Termination. The registration rights granted under this Schedule 1
will terminate on July 1, 2006.
SECTION 5.05. Holder Determinations. In the event any determination is to be
made by the Holders or the Selling Holders as a group, such determination shall
be made by Holders or Selling Holders holding a majority in interest of the
Registrable Securities or the Registrable Securities being sold, respectively.
16
Schedule 2
INYX, INC.
a Nevada Corporation
STOCK PURCHASE WARRANT
To Purchase ______ Shares of Common Stock
Par Value $0.001 per share
___________, 2003
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN ACQUIRED FOR INVESTMENT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY SHALL HAVE BEEN RECEIVED BY THE
COMPANY TO THE EFFECT THAT SUCH SALE, TRANSFER OR ASSIGNMENT WILL NOT BE IN
VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS THEREUNDER, OR APPLICABLE STATE SECURITIES LAWS.
1. Basic Terms. This certifies that, for value received, _________________
(the "Holder") is entitled, subject to the terms and conditions of this
Warrant, until the expiration date, to purchase a maximum of
_____________ whole shares of Common Stock, par value $0.001 per share
(the "Common Stock"), of Inyx, Inc., a Nevada corporation (the
"Company"). Shares of Common Stock may be acquired from the Company,
one-half at a purchase price of $1.00 per share and one-half at a
purchase price of $1.35 per share (the "Purchase Price"), on delivery
of this Warrant to the Company with Form of Election to Purchase in the
form of Exhibit A duly --------- executed and payment of the Purchase
Price (in cash, by cashier's check payable to the order of the Company,
or in shares of the Company's Common Stock at their then Stock Price as
defined below) for each share purchased. This Warrant shall be
exercisable at any time, in whole or in part, from the date hereof
until 5:00 p.m. Miami Time on __________, 2008 (the "Exercise Period").
2. Company's Covenants as to Common Stock. Shares deliverable on the
exercise of this Warrant shall, at delivery, be fully paid and
non-assessable, and free from taxes, liens and charges with respect to
their purchase. The Company shall take any necessary steps to assure
that the par value per share of the Common Stock is at all times equal
to or less than the then current Purchase Price per share of the Common
Stock issuable pursuant to this Warrant. The Company shall at all times
reserve and hold available sufficient shares of Common Stock to satisfy
all conversion and purchase rights of outstanding convertible
securities, options and warrants.
3. Method of Exercise; Fractional Shares. The purchase rights represented
by this Warrant are exercisable at the option of the Holder in whole or
in part, from time to time, within the Exercise Period; provided,
however, that purchase rights are not exercisable with respect to a
fraction of a share of Common Stock. In lieu of issuing a fraction of a
share remaining after exercise of this Warrant as to all full shares
covered hereby, the Company shall either (1) pay therefor cash equal to
the same fraction of the then current Warrant purchase price per share
or, at its option, (2) issue scrip for the fraction, in registered or
bearer form approved by the Board of Directors of the Company, which
shall entitle the Holder to receive a certificate for a full share of
Common Stock on surrender of scrip aggregating a full share. Scrip may
become void after a reasonable period (but not less than six months
after the expiration date of this Warrant) determined by the Board of
Directors and specified in the scrip. In case of the exercise of this
Warrant for less than all the shares purchasable, the Company shall
cancel the Warrant and execute and deliver a new Warrant of like tenor
and date for the balance of the shares purchasable. Upon the date of
receipt by the Company of an exercise of the Warrant ("Exercise Date"),
the Warrant shall be deemed to have been exercised as to the number of
shares so purchased, and the person so exercising the Warrant shall
become a holder of record of shares of Common Stock on the Exercise
Date.
4. Adjustments of Shares and Purchase Price. The initial number of shares
of Common Stock purchasable upon exercise of this Warrant and the
Purchase Price shall be subject to adjustment from time to time after
the date hereof as follows:
(a) Recapitalization or Reclassification of Common Stock. In case
the Company shall at any time prior to the exercise or
termination of this Warrant effect a recapitalization or
reclassification of such character that its Common Stock shall
be changed into or become exchangeable for a larger or smaller
number of shares, then, upon the effective date thereof, the
number of shares of Common Stock that the Holder of this
Warrant shall be entitled to purchase upon exercise hereof
shall be increased or decreased, as the case may be, in direct
proportion to the increase or decrease in such number of
shares of Common Stock by reason of such recapitalization or
reclassification, and the Exercise Price of such recapitalized
or reclassified Common Stock shall, in the case of an increase
in the number of shares, be proportionately decreased and, in
the case of a decrease in the number of shares, be
proportionately increased.
(b) Consolidation, Merger or Sale. In case the Company shall at
any time prior to the exercise of this Warrant, or the
expiration of the Exercise Period, whichever first occurs,
consolidate or merge with any other corporation (unless the
Company shall be the surviving entity) or transfer all or
substantially all of its assets to any other corporation
preparatory to a dissolution, then the Company shall, as a
condition precedent to such transaction, cause effective
provision to be made so that the Holder of this Warrant, upon
the exercise thereof after the effective date of such
transaction, shall be entitled to receive the kind and amount
of shares, evidences of indebtedness, and/or other property
receivable on such transaction by a holder of the number of
shares of Common Stock as to which the Warrant was exercisable
immediately prior to such transaction (without giving effect
to any restriction upon such exercise); and, in any such case,
appropriate provision shall be made with respect to the rights
and interests of the Holder hereof to the effect that the
provisions of this Warrant shall thereafter be applicable (as
nearly as may be practicable) with respect to any shares,
evidences of indebtedness, or other securities or assets
thereafter deliverable upon exercise of this Warrant.
(c) Notice of Adjustment. Whenever the number of shares of Common
Stock purchasable upon exercise of this Warrant shall be
adjusted as provided herein, the Company shall file with its
corporate records a certificate of its Chief Financial Officer
setting forth the computation and the adjusted number of
shares of Common Stock purchasable hereunder resulting from
such adjustments, and a copy of such certificate shall be
mailed to the Holder. Any such certificate or letter shall be
conclusive evidence as to the correctness of the adjustment or
adjustments referred to therein and shall be available for
inspection by the holders of the Warrants on any day during
normal business hours.
5. Limited Rights of Holder. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company, or
18
to any other rights whatsoever except the rights herein expressed. No
dividends are payable or will accrue on this Warrant or the shares
purchasable hereunder until, and except to the extent that, this
Warrant is exercised.
6. Exchange for Other Denominations. This Warrant is exchangeable, on its
surrender by the registered owner to the Company, for new Warrants of
like tenor and date representing in the aggregate the right to purchase
the number of shares purchasable hereunder in denominations designated
by the registered owner at the time of surrender.
7. Transfer. Holder acknowledges that this Warrant and the shares of
Common Stock or other securities into which this Warrant is exercisable
have not been registered under the Securities Act of 1933, or any state
securities laws, but have been and will be issued pursuant to
exemptions therefrom. Accordingly, Holder acknowledges and agrees that
this Warrant and the securities acquired by it upon exercise hereof may
be transferred or assigned to another party only in accordance with a
valid registration statement or an exemption from registration under
the Securities Act and any applicable state securities laws. Subject to
applicable securities laws, this Warrant and all rights hereunder are
transferable by the Holder hereof in person or by duly authorized
attorney on the books of the Company upon surrender of this Warrant at
the principal offices of the Company, together with the Form of
Assignment attached hereto as Exhibit B duly executed. Absent any such
transfer, the Company may deem and treat the registered Holder of this
Warrant at any time as the absolute owner hereof for all purposes and
shall not be affected by any notice to the contrary.
8. Recognition of Registered Owner. Prior to due presentment for
registration of transfer of this Warrant, the Company may treat the
registered owner as the person exclusively entitled to receive notices
and otherwise to exercise rights hereunder.
9. Notice and Effect of Dissolution, etc. In case of a voluntary or
involuntary dissolution, liquidation, or winding up of the Company
(other than in connection with the consolidation or merger covered by
Section 5 above) is at any time proposed, the Company shall give at
least thirty (30) days' prior written notice to the Holder. Such notice
shall contain: (1) the date on which the transaction is to take place;
(2) the record date (which shall be at least thirty (30) days after the
giving of the notice) as of which holders of Common Shares will be
entitled to receive distributions as a result of the transaction; (3) a
brief description of the transaction; (4) a brief description to be
made to the holders of Common Shares as a result of the transaction;
and (5) an estimate of the fair value of the distributions. On the date
of the transaction, it if actually occurs, this Warrant and all rights
hereunder shall terminate.
10. Method of Giving Notice; Extent Required. Notices shall be given by
first-class mail, postage prepaid, addressed to the Holder at the
address of the owner appearing in the records of the Company or to the
Company at its principal office, or at such other addresses as to which
either the Holder or the Company gives the other written notice as
provided herein.
11. Entire Agreement. This Warrant, including the exhibits and documents
referred to herein which are a part hereof, contain the entire
understanding of the parties hereto with respect to the subject matter
and may be amended only by a written instrument executed by the parties
hereto or their successors or assigns. Any paragraph headings contained
in this Agreement are for reference purposes only and shall not affect
in any way the meaning of interpretation of this Warrant.
12. Governing Law. This Warrant is governed by, interpreted under and
construed in all respects in accordance with the substantive laws of
the State of Nevada without regard to the conflicts of law provision
thereof, and irrespective of the place of domicile or resident of the
party. In the event of a controversy arising out of the interpretation,
19
construction, performance or breach of this Warrant, the parties hereby
agree and consent to the jurisdiction and venue of the Courts of the
State of Nevada, or the United States District Court for the District
of Nevada, and further agree and consent that all personal service of
process in any such action or preceding outside the State of Nevada
shall be tantamount to service in person in Nevada.
[Signature Page Follows]
20
Witness the seal of the Company and the signatures of its authorized officers.
INYX, INC.
By:________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be Executed by the Holder if He Desires to Exercise Warrants
Evidenced by the Within Warrant Certificate)
To INYX, INC.:
The undersigned hereby irrevocably elects to exercise Warrants
evidenced by the within Warrant Certificate for, and to purchase thereunder,
________________________ full Shares of Inyx, Inc., Common Stock issuable upon
exercise of said Warrants and delivery of $1.50 for each share purchased.
(name of holder)
By:____________________________________
Title:_________________________________
TAXPAYER IDENTIFICATION NUMBER:______________________
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to
________________________________________________________________________________
(Please Print Name and Address)
________________________________________________________________________________
________________________________________________________________________________
Dated:________________, 20__
Signature:_____________________________
EXHIBIT B
FORM OF ASSIGNMENT
(To be executed by the registered holder if he desires to assign
warrants evidenced by the within warrant certificate. Any such assignment is
subject to certain restrictions contained in the Warrant Certificate.)
FOR VALUE RECEIVED _________________________________________ hereby
sells, assigns and transfers unto ________________________ Warrants to purchase
_________ shares of Common Stock, par value $0.001 per share, of Inyx, Inc.,
evidenced by the within Warrant Certificate, and does hereby irrevocably
constitute and appoint the Secretary of Inyx, Inc. as its attorney to transfer
the said Warrants evidenced by the within Warrant Certificate on the books of
the Company, with full power of substitution.
Dated: ____________________, 20__.
