WARRANT AGREEMENT dated as of March 10, 2006 between Xxxxx World Trade,
Ltd.., a Nevada corporation (the "Company"), with its principal place of
business is 000-00 000xx Xxxxxx, Xxxxxxx, XX 00000 and Strategic Growth
International, Inc., a Delaware corporation with its principal place of business
at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and its successors,
designees and assigns (the "Holder").
WITNESSETH:
WHEREAS, the Company proposes to issue to the Holder a warrant to purchase
up to an aggregate of 400,000 shares of the Company's common stock, $.001 par
value, (the "Common Stock") which shall be known as the "Series A" Warrant.
NOW, THEREFORE, in consideration of the premises, the agreements herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Company hereby agrees to issue to the Holder the warrant
described in Section 1.1 below.
1.1 Series A Warrant. The Series A Warrant grants to the Holder the right
to purchase, at any time from February 1, 2007 until 5:00 P.M., New York time,
on October 2, 2010, up to an aggregate of 400,000 shares of Common Stock (the
"Shares") at an initial exercise price (subject to adjustment as provided in
Section 8 hereof) of $1.02 per share subject to the terms and conditions of this
Agreement. Except as set forth herein, the shares issuable upon exercise of the
Series A Warrant are in all respects identical to the shares of Common Stock
held by all of the Company's other shareholders.
2. Warrant Certificate. The warrant certificate (the "Warrant
Certificate") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Warrant.
3.1 Method of Exercise. The Series A Warrant is initially exercisable at
the initial exercise price (subject to adjustment as provided in Section 8
hereof) per Share payable by certified or official bank check in New York
Clearing House funds or by surrender to the Company of a number of Shares
issuable pursuant to the Series A Warrant which, when valued at the exercise
price, equal the amount of the exercise price for the Shares to be issued upon
exercise of the Series A Warrant, subject to adjustment as provided in Section 8
hereof. 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 Common Stock purchased at the Company's
principal offices (presently located at 00-00 000xx Xxxxxx, Xxxxxxx, XX 11434)
the registered holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holders thereof, in whole or part (but not as
to fractional shares of the Common Stock). In the case of the purchase of less
than all Common Stock purchasable under any Warrant Certificate, the Company
shall cancel said Warrant Certificate upon the surrender thereof and shall
execute and deliver a new Warrant Certificate of like tenor for the balance of
the Common Stock purchasable thereunder.
3.2 Definition of Market Price. As used herein, the phrase "Market Price"
at any date shall be deemed to be (i) when referring to the Common Stock, the
last reported price, or, in case no such reported sale takes place on such day,
the average of the last reported prices for the last three (3) trading days, in
either case as officially reported by the principal securities exchange on which
the Common Stock is listed or admitted to trading or by the Nasdaq Stock Market
("NSM") or, (ii) if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted by NSM, the average closing price as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through Nasdaq or OTC Bulletin Board, or similar organization if Nasdaq is no
longer reporting such information, or (iii) if the Common Stock is not quoted on
Nasdaq or the OTC Bulletin Board, or such similar organization as determined in
good faith by resolution of the Board of Directors of the Company, based on the
best information available to it.
2
4. Issuance of Certificate. Upon the exercise of the Series A Warrant, the
issuance of certificates for shares of Common Stock shall be made forthwith (and
in any event within five (5) business days thereafter) 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 Sections 5 and 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 certificate representing the Shares shall
be executed on behalf of the Company by the manual or facsimile signature of the
then present Chief Executive Officer, Chairman or Vice Chairman of the Board of
Directors or President or Vice 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. The Warrant Certificate
shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.
5. Restriction On Transfer of Warrants. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Series A
Warrant is being acquired as an investment and not with a view to the
distribution thereof; that the Series A Warrant may not be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, for a
period of one (1) year from the date hereof.
6. Exercise Price.
6.1 Initial and Adjusted Exercise Price. Except as otherwise provided in
Section 8 hereof, the initial exercise price of each Series A Warrant to
purchase Common Stock shall be equal to the initial exercise price set forth in
Sections 1.1 above. 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 Section 8 hereof.
3
6.2 Exercise Price. The term "Exercise Price" herein shall mean the
applicable initial exercise price or with respect to the Series A Warrant to
purchase Common Stock at the adjusted exercise price, depending upon the
context.
7. Registration Rights.
7.1 Current Registration Under the Securities Act of 1933. The Company has
previously registered certain shares of common stock under the Securities Act of
1933, as amended (the "Act") (the "Registration Statement").
7.2 Piggyback Registration.
(a) If, at any time commencing after the date of this Agreement, the
Company proposes to register any of its securities under the Act (with the
exception of a registration statement on Form S-8 or S-4 or subsequent similar
forms), either for its own account or the account of any other security holder
of the Company possessing registration rights ("Other Stockholders"), it shall
give written notice, at least thirty (30) days prior to the filing of each such
registration statement, to the Holder and to all other Holders of warrants with
registration rights of the opportunity to register the Common Stock underlying
such warrants (collectively, "Registrable Securities") of its intention to do
so. If the Holder or other Holders of Registrable Securities notify the Company
within twenty-one (21) days after the receipt of any such notice of its or their
desire to include any such securities in such proposed registration statement,
the Company shall afford the Holder and such other Holders of such securities
the opportunity to have any such securities registered under such registration
statement.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holder and such other Holders as part of the written notice given
pursuant to Section 7.2(a) hereof. The right of the Holder or any such other
Holder to registration pursuant to this Section 7.2 shall be conditioned upon
their participation in such underwriting and the inclusion of their Registrable
Securities in the underwriting to the extent hereinafter provided. The Holder
and all other Holders proposing to distribute their securities through such
underwriting shall (together with the Company and any officer, directors or
Other Stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter
selected by the Company. Notwithstanding any other provision of this Section
7.2, if the underwriter advises the Company in writing that marketing factors
require a limitation or elimination of the number of shares of Common Stock or
other securities to be underwritten, the underwriter may limit the number of
shares of Common Stock or other securities to be included in the registration
and underwriting. The Company shall so advise the Holder and all other Holders
of Registrable Securities requesting registration, and the number of shares of
Common Stock or other securities that are entitled to be included in the
registration and underwriting shall be allocated among the Holder and other
Holders requesting registration, in each case, in proportion, as nearly as
practicable, to the respective amounts of securities which they had requested to
be included in such registration at the time of filing the registration
statement.
4
(c) Notwithstanding the provisions of this Section 7.2, the Company
shall have the right at any time after it shall have given written notice
pursuant to Section 7.2(a) hereof (irrespective of whether a written request for
inclusion of any such securities shall have been made) to elect not to file any
such proposed registration statement, or to withdraw the same after the filing
but prior to the effective date thereof.
7.3 Covenants of the Company With Respect to Registration. In connection
with any registration under Section 7.2, the Company covenants and agrees as
follows:
(a) The Company shall use its best efforts to have any registration
statement declared effective at the earliest possible time, and shall furnish
each Holder desiring to sell Registrable Securities such number of prospectuses
as shall reasonably be requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Section 7.2 hereof including, without limitation, the Company's legal and
accounting fees, printing expenses, blue sky fees and expenses.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Registrable Securities included in a
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by the Holder(s); provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
5
(d) The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), against all loss, claim, damage, expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement.
(e) The Holder(s) of the Registrable Securities to be sold pursuant
to a registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or
expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, for specific inclusion in such registration statement.
(f) For purposes of this Agreement, the term "Majority" in reference
to the Holders of Registrable Securities, shall mean in excess of fifty percent
(50%) of the Registrable Securities that have not been resold to the public
pursuant to a registration statement filed with the SEC under the Act.
(g) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Series A Warrant prior to the initial
filing of any registration statement or the effectiveness thereof.
7.4 Restrictive Legends. In the event that the Company fails to maintain
the effectiveness of the Registration Statement, such that the exercise, in part
or in whole, of the Series A Warrants are not, at the time of such exercise,
registered under the Act, any certificates representing the Shares underlying
the Series A Warrants and any of the other securities issuable upon exercise of
the Series A Warrants shall bear the following restrictive legend: The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended ("Act"), and may not be offered or sold
except pursuant to (i) an effective registration statement under the Act, (ii)
to the extent applicable, Rule 144 under the Act (or any similar rule under such
Act relating to the disposition of securities), or (iii) an opinion of counsel,
if such opinion shall be reasonably satisfactory to counsel to the issuer, that
an exemption from registration under such Act is available.
6
8. Adjustments to Exercise Price and Number of Securities.
8.1 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.2 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
Common Stock issuable upon the exercise at the adjusted exercise price of each
Series A Warrant shall be adjusted to the nearest full amount by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Common Stock issuable upon exercise of the Series A
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
8.3 Definition of Common Stock. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common Stock
in the Certificate of Incorporation of the Company as amended as of the date
hereof, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. The
Company covenants that so long as any of the Series A Warrant are outstanding,
the Company shall not without the prior written consent of the Holder issue any
securities whatsoever other than Common Stock. In the event that the Company
shall, upon the consent of the Holder, after the date hereof issue securities
with greater or superior voting rights than the shares of Common Stock
outstanding as of the date hereof, the Holder, at its option, may receive upon
exercise of any Series A Warrant either shares of Common Stock or a like number
of such securities with greater or superior voting rights.
7
8.4 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other 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 Series A
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Series A Warrant) to receive, upon exercise of
such warrant, 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 Series A Warrant 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 Section 8. The above
provision of this subsection shall similarly apply to successive consolidations
or mergers. 8.5 No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made: (a) upon the issuance or sale of the Series
A Warrant or the shares of Common Stock issuable upon the exercise of the Series
A Warrant; or (b) If the amount of said adjustment shall be less than two (2)
cents per Warrant Security, provided, however, that in such case any adjustment
that would otherwise be required then to be made shall be carried forward and
shall be made at the time of and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount to at least
two (2) cents per Warrant Security.
9. 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 Common Stock in such denominations as shall
be designed 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 Series A Warrant, if mutilated, the
Company will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.
8
10. Elimination of Fractional Interests. The Company shall not be
required to issue fractional shares of Common Stock or the Series A Warrant upon
the exercise of the Series A Warrant. Warrants may only be exercised in such
multiples as are required to permit the issuance by the Company of one or more
whole shares of Common Stock. If one or more Series A Warrant shall be presented
for exercise in full at the same time by the same Holder, the number of whole
shares of Common Stock which shall be issuable upon such exercise thereof shall
be computed on the basis of the aggregate number of shares of Common Stock
purchasable on exercise of the Series A Warrant so presented. If any fraction of
a share of Common Stock would, except for the provisions provided herein, be
issuable on the exercise of any Series A Warrant (or specified portion thereof),
the Company shall pay an amount in cash equal to such fraction multiplied by the
then current market value of a share of Common Stock, determined as follows:
(1) If the Common Stock is listed, or admitted to unlisted trading
privileges on the New York Stock Exchange ("NYSE") or the American Stock
Exchange ("AMEX"), or is traded on the NSM, the current market value of a share
of Common Stock shall be the closing sale price of the Common Stock at the end
of the regular trading session on the last business day prior to the date of
exercise of the Series A Warrant on whichever of such exchanges or NSM had the
highest average daily trading volume for the Common Stock on such day; or
(2) If the Common Stock is not listed or admitted to unlisted
trading privileges, on either the NYSE or the AMEX and is not traded on NSM, but
is quoted or reported on Nasdaq, the current market value of a share of Common
Stock shall be the closing price (or the last sale price, if then reported by
Nasdaq) of the Common Stock at the end of the regular trading session on the
last business day prior to the date of exercise of the Series A Warrant as
quoted or reported on Nasdaq; or
(3) If the Common Stock is not listed, or admitted to unlisted
trading privileges, on either of the NYSE or the AMEX, and is not traded on NSM
or quoted or reported on Nasdaq, but is listed or admitted to unlisted trading
privileges on the BSE or another national securities exchange (other than the
NYSE or the AMEX), the current market value of a share of Common Stock shall be
the closing price of the Common Stock at the end of the regular trading session
on the last business day prior to the date of exercise of the Series A Warrant
on whichever of such exchanges has the highest average daily trading volume for
the Common Stock on such day; or
9
(4) If the Common Stock is not listed or admitted to unlisted
trading privileges on any national securities exchange, or listed for trading on
NSM or quoted or reported on Nasdaq, but is traded in the over-the-counter
market, the current market value of a share of Common Stock shall be the average
of the last reported bid and asked prices of the Common Stock reported by the
OTC Bulletin Board on the last business day prior to the date of exercise of the
Series A Warrant; or
(5) If the Common Stock as the case may be, is not listed, admitted
to unlisted trading privileges on any national securities exchange, or listed
for trading on NSM or quoted or reported on Nasdaq, and bid and asked prices of
the Common Stock are not reported by the OTC Bulletin Board or National
Quotation Bureau, Inc., the current market value of a share of Common Stock
shall be an amount, not less than the book value thereof as of the end of the
most recently completed fiscal quarter of the Company ending prior to the date
of exercise, determined in accordance with generally acceptable accounting
principles, consistently applied.
11. 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 Series A Warrant 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 Series A Warrant and payment of the Exercise Price
therefore, 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 Series A
Warrant shall be outstanding, the Company shall use its best efforts to cause
all shares of Common Stock issuable upon the exercise of the Series A Warrant 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 quoted on XXX.
00
00. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as conferring upon the Holders 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 matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Series A 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 other than in cash, or a cash dividend or distribution
payable other 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 exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefore; 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 written notice of such event at least fifteen
(15) days prior to the date fixed as a record date or the date of closing the
transfer books for the determination 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 book, 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.
13. Notice.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made and sent when
delivered, or mailed by registered or certified mail, return receipt requested:
11
(a) If to the registered Holder of the Series A Warrant, to the
address of such Holder 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 Holders.
14. Supplements and Amendments. The Company and the Holder may from time
to time supplement or amend this Agreement without the approval of any Holders
of Warrant Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with any
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Holder may deem necessary
or desirable and which the Company and the Holder deem shall not adversely
affect the interests of the Holders of Warrant Certificates.
15. Successors. All the covenants and provisions of this Agreement shall
be binding upon and inure to the benefit of the Company, the Holders and their
respective successors and assigns hereunder.
16. Termination. This Agreement shall terminate at the close of business
on October 2, 2010. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on October 2, 2016.
17. Governing Law; 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 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, the Holder and any other registered Holders 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 courts of the State
of New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Holder and any other registered Holders hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Holder and the Holders (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
the address 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. The Company, the Holder and any other registered
Holders agree that the prevailing party(ies) in any such action or proceeding
shall be entitled to recover from the other party(ies) all of its'/their
reasonable legal costs and expenses relating to such action or proceeding and
incurred in connection with the preparation therefore.
12
18. 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.
19. 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.
20. 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.
21. 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 and any other registered Holder(s) of the Warrant Certificates or Common
Stock any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole benefit of the Company and the Holder and
any other registered Holders of Warrant Certificates or Common Stock.
13
22. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
Xxxxx World Trade, Ltd.
By: /s/_________________________
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Strategic Growth International, Inc.
/s/ _________________________
Name: Xxxxxxx Xxxxxx
Title: Chairman
14
EXHIBIT A
[FORM OF SERIES A WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, OCTOBER 2, 2010
No. 1 Series A Warrant to Purchase
400,000 Shares of Common Stock
SERIES A WARRANT CERTIFICATE
This Warrant Certificate certifies that Strategic Growth International,
Inc., or registered assigns, is the registered holder of Warrants to purchase
initially, at any time from February 1, 2007 until 5:00 p.m. New York time on
October 2, 2010 ("Expiration Date"), up to Four Hundred Thousand (400,000)
fully-paid and non-assessable shares of common stock, $.001 par value ("Common
Stock") of Xxxxx World Trade, Ltd., a Nevada corporation (the "Company"), at the
initial exercise price, subject to adjustment in certain events (the "Exercise
Price"), equal to $1.02 per share 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 the Warrant Agreement dated as of
February 1, 2007 between the Company and Strategic Growth International, Inc.
(the "Warrant Agreement"). Payment of the Exercise Price shall be made by
certified or official bank check in New York Clearing House funds payable to the
order of the Company or by surrender of this Warrant Certificate.
No Warrant may be exercised after 5:00 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, limitation
of 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.
15
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price and the type and 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 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 of
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 or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
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 assigned 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: March 10, 2006
Attest: Xxxxx World Trade, Ltd.
/s/_____________________________ By: /s/______________________________
Name: Xxxx Xxxxx Name: Xxxxx X. Xxxxxxxx
Title: Secretary Title: Chief Executive Officer
16
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED Strategic Growth International, Inc. hereby sells,
assigns and unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby reasonably constitute and appoint ___________________________,
as Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Strategic Growth International, Inc.
Date: 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 Assignee)
17
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
____________Shares
____________Series A Warrants
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Xxxxx World
Trade, Ltd., in the amount of $1.02 per share, or a total of ______________
shares of the Securities issuable upon exercise of the Warrant, all in
accordance with the terms of the Warrant Agreement dated March 10, 2006 between
Strategic Growth International, Inc. and Xxxxx World Trade, Ltd. The undersigned
request 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___________________ .
Date: 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 Assignee)
18
