Exhibit 99.3
AMENDED AND RESTATED WARRANT AGREEMENT
This AMENDED AND RESTATED WARRANT AGREEMENT (this "Agreement"),
effective as of October 3, 2007, is entered into by and between SWMX, Inc., a
Delaware corporation (the "Company") and BlueCrest Capital Finance, L.P., a
Delaware limited partnership (hereinafter referred to variously as the "Holder"
or "BlueCrest"). This Agreement amends and restates in its entirety that certain
Warrant Agreement dated as of March 23, 2007, by and between the Company and
BlueCrest (the "Original Warrant Agreement"). Capitalized terms used herein and
not specifically defined herein shall have the same meaning assigned to them in
the Loan and Security Agreement, dated as of March 23, 2007, as amended by that
certain Amendment No. 1 to Loan Documents, effective as of the date hereof, each
by and among the Company, SoftWave Media Exchange, Inc. and BlueCrest (the "Loan
Agreement").
W I T N E S E T H:
WHEREAS, the Loan Agreement provides that in consideration for
providing financing availability to the Company, BlueCrest is entitled to
receive, among other things, warrants ("Warrants") to purchase up to 12,500,000
shares of the Company's common stock, $.01 par value per share ("Common Stock"),
subject to adjustment as provided herein, which Warrants are evidenced by the
warrant certificate (the "Warrant Certificate") attached hereto as Exhibit A and
incorporated herein;
NOW, THEREFORE, in consideration of the premises, the services to be
rendered by BlueCrest pursuant to the Loan Agreement, the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agrees as follows:
1. GRANT AND EXERCISE. Holder is hereby granted the right to
purchase 12,500,000 shares of Common Stock at any time from the date hereof
until October 3, 2017. The initial exercise price per share of the Warrants
shall be (subject to adjustment as provided in Section 9 hereof) as provided in
Section 8 hereof. The Company has also granted Holder the right to purchase
48,750,000 shares of Common Stock at any time from the date hereof until October
3, 2017 under that certain Warrant Agreement dated as of the date hereof (the
"Additional Warrants" and collectively with the Warrants, the "Lender
Warrants").
2. WARRANT CERTIFICATES. The warrant certificate is attached hereto
as Exhibit A hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted by this
Agreement. Holder agrees to promptly deliver to the Company the warrant
certificate issued to Holder under the Original Warrant Agreement for
cancellation.
3. EXERCISE OF WARRANTS. The Warrants initially are exercisable at
the initial exercise price (subject to adjustment as provided in Section 9
hereof) per share of Common Stock as set forth in Section 8 hereof payable by
paying in full, in lawful money of the United States, in cash, wire transfer,
certified check or bank draft payable to the order of the Company (or as
otherwise agreed to by the Company). Upon surrender of a Warrant Certificate
with the annexed Form of Election to Purchase duly executed, together with
payment of the Exercise Price (as hereinafter defined) for the shares of Common
Stock purchased at the Company's principal offices in New York (presently
located at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 10533) the registered holder of the
Warrant Certificate shall be entitled to receive a certificate or certificates
for the shares of Common Stock so purchased. The purchase rights represented by
the Warrant Certificate are exercisable at the option of the Holder thereof, in
whole or in part (but not as to fractional shares of the Common Stock underlying
2
the Warrants), provided that no exercise may be for fewer than 10,000 shares of
Common Stock (or such lesser number that may remain upon exercise of the
Warrants). Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby. In the case of the purchase of less than all
the shares of Common Stock purchasable under any Warrant Certificate, the
Company shall cancel said Warrant Certificate upon the surrender thereof and
shall execute and deliver to the Holder a new Warrant Certificate of like tenor
for the balance of the shares of Common Stock. Notwithstanding the foregoing,
Holder acknowledges and agrees that the Company does not have a sufficient
number of authorized shares of Common Stock to permit the purchase of all of the
shares of Common Stock that Holder has a right to purchase under the Lender
Warrants nor has the Company obtained stockholder approval to amend its
Certificate of Incorporation to increase the number of authorized shares of
Common Stock. The Company covenants and agrees that it shall take such actions
as are necessary to amend its Certificate of Incorporation to increase the
number of authorized shares of Common Stock to an aggregate of 290,000,000
shares, which actions shall be taken as soon as practical after the date hereof,
but in no event later than 30 days after the date hereof. Holder agrees that it
shall not purchase more than a total of 30,000,000 shares of Common Stock under
the Lender Warrants until such time as the Company has amended its Certificate
of Incorporation as set forth in this Section 3.
4. NET ISSUANCE OPTION; MARKET VALUE. Notwithstanding any provisions
herein to the contrary, the Holder may elect to receive, without the payment by
the Holder of any additional consideration, shares of Common Stock equal to the
value (as determined below) of the Warrants (or the portion thereof being
exercised) by surrender of the Warrants at the principal office of the Company
together with the properly endorsed and completed notice of exercise in the form
3
of Exhibit A hereto, in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X=Y (A-B)
------
A
Where X = the number of shares of Common Stock to be issued to the
Holder pursuant to this Section 4
Y= the number of shares of Common Stock purchasable under the
Warrants or, if only a portion of the Warrants are being
exercised, the portion of the Warrants being exercised (at the
date of such calculation) pursuant to this Section 4
A= the Market Value of one share of the Company's Common Stock
(at the date of such calculation)
B= the Exercise Price (as adjusted to the date of such
calculation) in effect under the Warrants at the time the net
issue election is made pursuant to this Section 4
Upon any such exercise, the number of shares of Common Stock purchasable
upon exercise of the Warrants shall be reduced by such designated number of
shares of Common Stock being exercised and, if a balance of purchasable shares
of Common Stock remains after such exercise, the Company shall execute and
deliver to the Holder new Warrants for such balance of shares of Common Stock.
Such exchange shall be effective upon the date of receipt by the Company of the
original Warrants surrendered for cancellation and a written request from the
Holder that the exchange pursuant to this Section 4 be made, or at such later
date as may be specified in such request. For purposes of this Agreement,
"Market Value" of the shares of Common Stock shall mean, as of any date of
determination, the average of the closing sale price of the Company's Common
Stock on the Over the Counter Bulletin Board (or other exchange on which the
Common Stock is traded at the time of such determination) over the ten (10)
4
business days preceding the exercise pursuant hereto or if the Common Stock is
not traded on an exchange, the fair market value of such share as determined in
good faith by the Board of Directors of the Company in its reasonable business
judgment upon review of all relevant factors.
5. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for shares of Common Stock or other securities,
properties or rights underlying such Warrants, shall be made forthwith without
charge to the Holder thereof including, without limitation, any tax which may be
payable in respect of the issuance thereof, and such certificates shall (subject
to the provisions of Section 7 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof; 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 issuance and delivery of any such certificates in a
name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
The Warrant Certificate and the certificates representing the shares
of Common Stock (and/or other securities, property or rights issuable upon
exercise of the Warrants) shall be executed on behalf of the Company by the
manual or facsimile signature of the then present Chairman of the Board of
Directors or President of the Company under its corporate seal reproduced
thereon, attested to by the manual or facsimile signature of the then present
Secretary or Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
5
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Holders as follows:
ss.6.1 The Company is and at all times hereafter shall (i) have a
legal name and organizational structure as set forth above, duly organized and
existing and in good standing under the laws of the state of its organization as
set forth above and (ii) qualified or licensed to do business in all other
states in which the laws require the Company to be so qualified and/or licensed;
ss.6.2 The Company is duly authorized and empowered to enter into,
execute, deliver and perform this Agreement and the execution, delivery and/or
performance by the Company of this Agreement, shall not, by the lapse of time,
the giving of notice or otherwise, conflict with or constitute a violation of
any applicable law (including, without limitation, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System or any other regulation
thereof) or a breach of any provision contained in the Company's organizational
documents or contained in any agreement, instrument or document to which the
Company is now or hereafter a party or by which it is or may become bound or
give rise to or result in any default thereunder;
ss.6.3 This Agreement the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles (whether enforcement is sought in equity or at law).
7. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. The Holder
represents and warrants to the Company as follows:
6
ss.7.1 INVESTMENT. The Holder is acquiring the Warrants and the
Common Stock issuable upon exercise thereof for its own account as principal,
not as a nominee or agent, for investment purposes only, and not with a view to,
or for, resale in connection with, any distribution thereof within the meaning
of the Securities Act of 1933, as amended (the "Act").
ss.7.2 HOLDER'S INVESTMENT DECISION. The Holder: (a) is an
"accredited investor" as that term is defined in Rule 501 of Regulation D under
the Securities Act; (b) has been afforded access to current information and the
opportunity to ask questions of the Company's management concerning the
Company's business, management and financial affairs, including the Company's
operating results and liquidity and any uncertainty relating to the Company's
capitalization, and has received answers from the Company's management with
respect to all questions posed by the Holder to management; (c) has such
knowledge and experience in financial and business matters that the Holder is
capable of evaluating, and the Holder has evaluated, the merits and risks of
purchasing the Warrants and the Common Stock issuable upon exercise thereof and
understands that such purchases constitute a highly speculative investment; and
(d) has the financial ability to bear the economic risk of the Holder's
investment in the Warrants and the Common Stock issuable upon exercise thereof,
has adequate means to sustain a complete loss of such investments and has no
need for liquidity in such investments.
ss.7.3 REGISTRATION UNDER THE ACT AND LEGEND. The Holder understands
and acknowledges that the certificates representing the Warrants and the Common
Stock issuable upon exercise thereof shall bear a legend substantially as
follows until (i) such securities shall have been registered under the Act and
effectively been disposed of in accordance with an effective registration
statement thereunder or (ii) in the opinion of counsel reasonably acceptable to
7
the Company such securities may be sold without registration under the Act as
well as any applicable "Blue Sky" or state securities laws:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS."
8. EXERCISE PRICE.
ss.8.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise
provided in this Section 8, the initial exercise price of each of the Warrants
represented in the form of Warrant Certificate attached hereto as Exhibit A
shall be $0.06 per share of Common Stock.
The adjusted exercise price shall be the price which shall result
from time to time from any and all adjustments of the initial exercise price in
accordance with the provisions of this Section 8.
ss.8.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean
the initial exercise price or the adjusted exercise price, depending upon the
context.
9. ADJUSTMENTS TO EXERCISE AND NUMBER OF SECURITIES.
ss.9.1 STOCK SPLIT AND STOCK DIVIDEND. In case the Company shall at
any time effect a stock split or stock dividend to the outstanding shares of
Common Stock, the Exercise Price and the number of shares of Common Stock
issuable upon exercise of the Warrants shall forthwith be adjusted. At the time
of any such adjustment, the Company shall make appropriate reserves to ensure
the timely performance of its obligations hereunder.
ss.9.2 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company with, or into, another corporation (other
8
than a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the Holder of each of the Warrants then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrants) to receive, upon exercise of such warrants, the
kind and amount of shares of stock and other securities and property receivable
upon such consolidation or merger, by a holder of the number of shares of Common
Stock of the Company for which such warrants might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in this Section 9. The above provision of
this Subsection 9.2 shall similarly apply to successive consolidations or
mergers.
In the event that the merger of consolidation of the Company results
in a Change of Control (as hereinafter defined), the Warrants shall
automatically be exercised on a "net issuance option" as provided for in Section
4 herein.
10. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of securities in such denominations as shall
be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of any Warrant Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
9
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
11. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
12. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be duly and validly issued, fully paid, non-assessable and not subject to
the preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all shares of
Common Stock issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges on which the Common
Stock issued to the public in connection herewith may then be listed and/or
quoted.
13. NOTICE TO WARRANT HOLDER. Nothing contained in this Agreement
shall be construed as conferring upon the Holder the right to vote or to consent
or to receive notice as a stockholder in respect of any meetings of stockholders
for the election of directors or any other manner, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
10
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common Stock
any additional shares of capital stock of the Company or securities convertible
into or exchange for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give
notice of such event at least fifteen (15) days prior to the date fixed as a
record date or the date of the closing the transfer books for the termination of
the stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
11
14. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered personally or by facsimile or overnight courier, or
mailed by registered or certified mail, return receipt requested:
(a) If to the Holder, BlueCrest Capital Finance, L.P., 000 Xxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxxxx, 00000, Attn. Legal Department, or as
shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3 hereof
or to such other address as the Company may designate by notice to the Holder.
15. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holder and
their respective successors and assigns hereunder.
16. GOVERNING LAWS SUBMISSION TO JURISDICTION. This Agreement and
each Warrant Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of New York and for all the purposes shall be
construed in accordance with the laws of said State without giving effect to the
rules of said State governing the conflicts of laws.
The Company and the Holder hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the state or federal courts located in the
State of New York, and irrevocably submits to such jurisdiction. The Company,
and the Holder hereby irrevocably waive any objection to such jurisdiction or
inconvenient forum. Any such process or summons to be served upon any of the
Company and the Holder (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
12
the address as set forth in Section 14 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim.
17. ENTIRE AGREEMENT: MODIFICATION. This Agreement contains the
entire understanding between the parties hereto with respect to the subject
matter hereof and may not be modified or amended except by a writing duly signed
by the party against whom enforcement of the modification or amendment is
sought.
18. SEVERABILITY. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
19. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Holder any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holder.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
SWMX, INC.
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial officer
BLUECREST CAPITAL FINANCE, L.P.
By: BlueCrest Capital Finance GP, LLC,
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Manager
[AMENDED AND RESTATED WARRANT AGREEMENT]
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXPIRES OCTOBER 3, 2017
No. BC-1 12,500,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that BlueCrest Capital Finance,
L.P. or its registered assigns, is the registered holder of 12,500,000 Warrants
to purchase as of the date hereof until October 3, 2017 ("Expiration Date"), up
to 12,500,000 fully-paid and non-assessable shares of common stock, par value
$.01 per share ("Common Stock") of SWMX, INC., a Delaware corporation (the
"Company"), at an initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $0.06 per share of Common Stock, upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in that certain Amended and Restated Warrant Agreement effective as of
October 3, 2007, by and between the Company and BlueCrest Finance Capital, L.P.
(the "Warrant Agreement"). Payment of the Exercise Price shall be made by lawful
money of the United States, in cash, wire transfer, certified check or bank
draft payable to the order of the Company. The Warrants may also be exercised
through a "net issuance option" as provided for in Section 4 of the Warrant
Agreement.
No Warrants may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
obligations, duties and immunities thereunder of the Company and the holders
(the words "holders" or "holder" meaning the registered holders or registered
holder) of the Warrants.
-A-1-
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax in other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Warrant Certificate, the Company shall forthwith issue to the holder hereof a
new Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings ascribed to them in the Warrant
Agreement.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed under its corporate seal.
Dated as of October 3, 2007
SWMX, Inc.
By:
-----------------------------------------
Name:
Title:
-A-2-
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTIONS 3 or 4]
Please choose one option:
[ ] CASH TENDER
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____ shares of Common Stock
at an exercise price of $0._____ per share and herewith tenders in payment for
such Securities lawful money of the United States, in cash, wire transfer,
certified check or bank draft payable to the order of the Company in the amount
of $___________, all in accordance with the terms hereof. The undersigned
requests that a certificate for such Securities be registered in the name of
___________ whose address is ___________ and that such Certificate be delivered
to ___________ whose address is _______________.
[ ] NET ISSUANCE OPTION
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, through the net issuance option with
respect to ____ shares of Common Stock in accordance with Section 4 of the
Warrant Agreement and herewith tenders such number of shares. The undersigned
requests that a certificate for that number of shares of such Securities
determined in accordance with such terms be registered in the name of
___________ whose address is ___________ and that such Certificate be delivered
to ___________ whose address is _______________.
Signature_______________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate.)
------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
-C-3-
