WARRANT TO PURCHASE _________ SHARES OF THE COMMON STOCK OF STATMON TECHNOLOGIES CORP.
THIS
WARRANT AS WELL AS THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED,
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE
AND
IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON THE HOLDER
HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL WHICH OPINION IS
REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS
ANY
APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW
VOID
AFTER 5.00 P.M. NEW YORK TIME, ON _____________________ (the “Termination
Date”)
WARRANT
TO PURCHASE _________ SHARES OF THE COMMON STOCK OF
This
is
to certify that, FOR VALUE RECEIVED, ___________ (The
“Holder”) is entitled to purchase, subject to the provisions of this Warrant,
from STATMON
TECHNOLOGIES CORP.,
a
Nevada corporation (the “Company”), ______________
shares
of
the common stock of the Company, $.01 par value (the “Common Stock”), at a price
of one dollar and fifty cents ($1.50)
per
share at any time or from time to time from the date hereof until 5:00 P.M.,
New
York City Time on the Termination Date. The number of shares to be received
upon
the exercise of this Warrant and the price to be paid for each such share shall
be adjusted from time to time as hereinafter set forth. The shares deliverable
upon such exercise, and as adjusted from time to time, are hereinafter sometimes
referred to as “Warrant Shares” and the exercise price of this Warrant as in
effect at any time as adjusted from time to time is hereinafter sometimes
referred to as the “Exercise Price.”
| SECTION 1. |
EXERCISE
OF
WARRANT.
|
This
Warrant may be exercised in whole or in part at any time or from time to time
during the period commencing on the date hereof and terminating at
5:00 P.M., New York City Time, on the Termination Date (the “Exercise
Period”) provided, however, that (i) if the Termination Date is a day on which
banking institutions in the State of New York are authorized by law to close,
then on the next succeeding day which shall not be such a day, and (ii) in
the
event of any merger, consolidation or sale of substantially all the assets
of
the Company resulting in any distribution to the Company’s stockholders on or
before the Termination Date, the Holder shall have the right to exercise this
Warrant commencing at such time through the Termination Date which shall entitle
the Holder to receive, in lieu of Warrant Shares, the kind and amount of
securities and property (including cash) receivable by a holder of the number
of
shares into which this Warrant might have been exercisable immediately prior
thereto. For purposes of this Warrant, the term “Warrant Shares” shall include
such securities and property. This Warrant may be exercised by presentation
and
surrender hereof to the Company at its principal office, or at the office of
its
stock transfer agent, if any, with the Purchase Form annexed hereto duly
executed and accompanied by payment of the Exercise Price for the number of
Warrant Shares specified in such Purchase Form. Such payment may be made, at
the
option of the Holder, by check or wire transfer As soon as practicable after
each such exercise of the Warrant, but not later than two business days from
the
date of such exercise, the Company shall issue and deliver to the Holder a
certificate or certificates representing the Warrant Shares issuable upon such
exercise, registered in the name of the Holder or the Holder’s designee. If this
Warrant should be exercised in part only, the Company shall, upon surrender
of
this Warrant for cancellation, execute and deliver a new Warrant evidencing
the
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable hereunder. Upon receipt by the Company of this Warrant at its
office, or by the stock transfer agent of the Company at its office, in proper
form for exercise, the Holder shall be deemed to be the holder of record of
the
Warrant Shares issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares shall not then be physically delivered to the
Holder.
| SECTION 2. |
RESERVATION
OF SHARES.
|
The
Company shall at all times reserve for issuance and/or delivery upon exercise
of
this Warrant such number of Warrant Shares as shall be required for issuance
and
delivery upon exercise of this Warrant.
| SECTION 3. |
FRACTIONAL
SHARES.
|
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. With respect to any fraction of a share called
for
upon any exercise hereof, the Company shall pay to the Holder an amount in
cash
equal to such fraction multiplied by the value of of a share determined as
follows( the “Current Market Value”):
(a) If
the
Common Stock is listed on a national securities exchange or admitted to unlisted
trading privileges on such exchange or listed for trading on NASDAQ, the Current
Market Value shall be the last reported sale price of the Common Stock on such
exchange or system on the last business day prior to the date of exercise of
this Warrant or if no such sale is made on such day, the average of the closing
high bid and low asked prices for such day on such exchange or system;
or
(b) If
the
Common Stock is not so listed or admitted to unlisted trading privileges but
bid
and asked prices are reported by the National Quotation Bureau, Inc. or any
successor thereto, the Current Market Value shall be the average of last
reported high bid and low asked prices reported by the National Quotation
Bureau, Inc. on the last business day prior to the date of the exercise of
this
Warrant; or
(c) If
the
Common Stock is not so listed or admitted to unlisted trading privileges and
bid
and asked prices are not so reported, the Current Market Value shall be the
book
value of a share thereof as at the end of the fiscal quarter of the Company
ending immediately prior to the date of the exercise of the Warrant determined
in accordance with generally accepted accounting principles consistently
applied.
| SECTION 4. |
EXCHANGE,
TRANSFER, ASSIGNMENT OR LOSS OF Warrant.
|
This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company for other Warrants of different
denominations entitling the Holder thereof to purchase in the aggregate the
same
number of shares of Common Stock purchasable hereunder. The term “Warrant” as
used herein includes any Warrants into which this Warrant may be divided or
exchanged. Upon receipt by the Company of evidence reasonably satisfactory
to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the
case
of loss, theft or destruction) of reasonably satisfactory indemnification,
and
upon surrender and cancellation of this Warrant, if mutilated, the Company
will
execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation
on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed,
or mutilated shall be at any time enforceable by anyone.
| SECTION 5. |
RIGHTS
AND LIABILITIES OF THE
HOLDER.
|
The
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
in the Company, either at law or equity, and the rights of the Holder are
limited to those expressed in this Warrant and are not enforceable against
the
Company except to the extent set forth herein. No provision of this Warrant,
in
the absence of affirmative action by the Holder to purchase the Warrant Shares,
and no mere enumeration herein of the rights or privileges of the Holder, shall
give rise to any liability of the Holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by the Company
or
by creditors of the Company.
-3-
| SECTION 6. |
ADJUSTMENTS,
NOTICE PROVISIONS AND RESTRICTIONS ON ISSUANCE OF ADDITIONAL
SECURITIES.
|
SECTION
6.1 Adjustment
of Exercise Price.
The
Exercise Price in effect from time to time shall be subject to adjustment,
as
follows:
(a) In
case
the Company shall (i) declare a dividend or make a distribution on the
outstanding shares of its capital stock that is payable in shares of its Common
Stock, (ii) subdivide, split or reclassify the outstanding shares of its Common
Stock into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of its Common Stock into a smaller number of shares, the
Exercise Price in effect immediately after the record date for such dividend
or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price in effect immediately prior thereto by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately before such dividend, distribution, split, subdivision,
combination or reclassification, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such dividend,
distribution, split, subdivision, combination or reclassification. Any shares
of
Common Stock issuable in payment of a dividend shall be deemed to have been
issued immediately prior to the record date for such dividend for purposes
of
calculating the number of outstanding shares of Common Stock of the Company
under this Section 6. Such adjustment shall be made successively upon the
occurrence of each event specified above.
(b) In
case
the Company fixes a record date for the issuance to holders of its Common Stock
of rights, options, warrants or convertible or exchangeable securities generally
entitling such holders to subscribe for or purchase shares of Common Stock
at a
price per share less than the Current Market Price (as such term is defined
in
Subsection 6.1(d) hereof) per share of Common Stock on such record date, the
Exercise Price shall be adjusted immediately thereafter so that it shall equal
the price determined by multiplying the Exercise Price in effect immediately
prior thereto by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at the Current Market Price per share,
and the denominator of which shall be the number of shares of Common Stock
outstanding on such Record Date plus the number of additional shares of Common
Stock offered for subscription or purchase. Such adjustment shall be made
successively on each date whenever a record date is fixed.
(c) In
case
the Company fixes a record date for the making of a distribution to all holders
of shares of its Common Stock of (i) of shares of any class of capital stock
other than its Common Stock or (ii) of evidences of its indebtedness or (iii)
of
assets (other than dividends or distributions referred to in Subsection 6.1(a)
hereof) or (iv) of rights, options, warrants or convertible or exchangeable
securities (excluding those rights, options, warrants or convertible or
exchangeable securities referred to in Subsection 6.1(b) hereof), then in each
such case the Exercise Price in effect immediately thereafter shall be
determined by multiplying the Exercise Price in effect immediately prior thereto
by a fraction, of which the numerator shall be the total number of shares of
Common Stock outstanding on such record date multiplied by the Current Market
Price (as such term is defined in Subsection 6.1(d) hereof) per share on such
record date, less the aggregate fair value as determined in good faith by the
Board of Directors of the Company of said shares or evidences of indebtedness
or
assets or rights, options, warrants or convertible or exchangeable securities
so
distributed, and of which the denominator shall be the total number of shares
of
Common Stock outstanding on such record date multiplied by such Current market
Price per share. Such adjustment shall be made successively each time such
a
record date is fixed. In the event that such distribution is not so made, the
Exercise Price then in effect shall be readjusted to the Exercise Price which
would then be in effect if such record date had not been fixed.
-4-
(d) For
the
purpose of any computation under Subsection 6.1(a), 6.1(b) or 6.1(c)
hereof, the “Current Market Price” per share at any date (the “Computation
Date”) shall be deemed to be the average of the daily Current Market Value over
twenty consecutive trading days ending the trading day before such date;
provided,
however,
upon the
occurrence, prior to the Computation Date, of any event described in Subsections
6.1(a), 6.1(b) or 6.1(c) which shall have become effective with respect to
market transactions at any time (the “Market-Effect Date”) on or after the
beginning of such 20-day period, the Current Market Value for each trading
day
preceding the Market-Effect Date shall be adjusted, for purposes of calculating
such average, by multiplying such closing price by a fraction the numerator
of
which is the Exercise Price as in effect immediately after the Market-Effect
Date and the denominator of which is the Exercise Price immediately prior to
the
Market-Effect Date, it being understood that the purpose of this proviso is
to
ensure that the effect of such event on the market price of the Common Stock
shall, as nearly as possible, be eliminated in order that the distortion in
the
calculation of the Current Market Price may be minimized.
(e) All
calculations under this Section 6.1 shall be made to the nearest
cent.
SECTION
6.2 Adjustment
of Number of Shares.
Upon
each adjustment of the Exercise Price pursuant to Section 6.1, this Warrant
shall thereupon evidence the right to purchase, in addition to any other
securities to which the Holder is entitled to purchase, that number of Warrant
Shares (calculated to the nearest one-hundred thousandth of a share) obtained
by
multiplying the number of shares of Common Stock purchasable upon exercise
of
the Warrant immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment and dividing the product so obtained by
the
Exercise Price in effect immediately after such adjustment.
SECTION
6.3 Verification
of Computations.
The
Company shall select a firm of independent public accountants, which may be
the
Company’s independent auditors, and which selection may be changed from time to
time, to verify the computations made in accordance with this Section 6. The
certificate, report of other written statement of any such firm shall be
conclusive evidence of the correctness of any computation made under this
Section 6. Promptly upon its receipt of such certificate, report or statement
from such firm of independent public accountants, the Company shall deliver
a
copy thereof to the Holder.
SECTION
6.4 Warrant
Certificate Amendments.
Irrespective of any adjustments pursuant to this Section 6, Warrant Certificates
theretofore or thereafter issued need not be amended or replaced, but Warrant
Certificates thereafter issued shall bear an appropriate legend or other notice
of any adjustments and which legend and/or notice has been provided by the
Company to the Holder, provided
the
Company may, at its option, issue new Warrant Certificates evidencing Warrants
in the form attached hereto to reflect any adjustment in the Exercise Price
and
the number of Warrant Shares evidenced by such Warrant Certificates and deliver
the same to the Holder in substitution for existing Warrant Certificates.
-5-
| SECTION 7. |
OFFICER’S
CERTIFICATE.
|
Whenever
the Exercise Price, the number of Warrant Shares underlying this Warrant or
either of them shall be adjusted as required by the provisions of the foregoing
Section, the Company shall forthwith file in the custody of its Secretary or
an
Assistant Secretary at its principal office and with its stock transfer agent,
if any, an officer’s certificate showing the adjusted Exercise Price and number
of Warrant shares determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment, including a statement of the number
of additional shares of Common Stock, if any, and such other facts as shall
be
necessary to show the reason for and the manner of computing such adjustment.
Each such officer’s certificate shall be made available at all reasonable times
for inspection by the Holder or any subsequent holder of this Warrant executed
and delivered pursuant to Section 1 hereof and the Company shall, forthwith
after each such adjustment, mail a copy by certified mail of such certificate
to
the Holder or any such subsequent holder.
| SECTION 8. |
NOTICES
TO THE
HOLDER
|
So
long
as this Warrant shall be outstanding, (a) if the Company shall pay any dividend
or make any distribution upon the Common Stock, (b) if the Company shall offer
to holders of its Common Stock rights to subscribe for, purchase, or exchange
property for any shares of any class of stock, or any other rights or Warrants
or (c) if any capital reorganization of the Company, reclassification of
the capital stock of the Company, consolidation or merger of the Company with
or
into another corporation, sale, lease or transfer of all or substantially all
of
the property and assets of the Company to another corporation, or voluntary
or
involuntary dissolution, liquidation or winding up of the Company shall be
effected, then in any such case, the Company shall cause to be sent by overnight
mail or courier service to the Holder, at least fifteen days prior to the date
specified in (x) or (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date on which (x) a record
is
to be taken for the purpose of such dividend, distribution or subscription
rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to take place
and
the date, if any is to be fixed, as of which holders of Common Stock or other
securities shall receive cash or other property deliverable upon such
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
| SECTION 9. |
RECLASSIFICATION,
REORGANIZATION OR
MERGER.
|
In
case
of any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company, or in case of any consolidation or merger
of the Company with or into another corporation (other than a merger with a
subsidiary in which merger the Company is the continuing corporation and which
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or in case of any sale, lease or conveyance to another corporation
of the property of the Company as an entirety (collectively such actions being
hereinafter referred to as “Reorganizations”), the Company shall, as a condition
precedent to such Reorganization transaction, cause effective provisions to
be
made so that the Holder shall have the right thereafter by exercising this
Warrant at any time prior to the expiration of the Warrant, to receive in lieu
of the amount of securities otherwise deliverable, the kind and amount of shares
of stock and other securities and property receivable upon such Reorganization
by a holder of the number of shares of Common Stock which might have been
purchased upon exercise of this Warrant immediately prior to such
Reorganization. Any such provision shall include provision for adjustments
which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Warrant. The foregoing provisions of this Section 9 shall
similarly apply to successive Reorganizations.
-6-
| SECTION 10. |
ISSUE
TAX.
|
The
issuance of certificates representing the Warrant Shares upon the exercise
of
this Warrant as well as securities underlying the Share Warrants shall be made
without charge to the Holder for any issuance tax in respect
thereof.
| SECTION 11. |
EXCHANGE
PROVISIONS
|
SECTION
11.1
For purposes of this Section 11, this Warrant shall be deemed to represent
the
same number of Warrants as there are Warrant Shares underlying this Warrant.
For
example, if there are 100,000 Warrant Shares underlying this Warrant, then
for
purposes of this Section 11 the Holder shall be deemed to hold 100,000
Warrants.
SECTION
11.2 For
purposes of this Section 11, the following terms shall have the following
meanings:
(a) “Current
Market Value ” of a Warrant Share shall be such value as determined under
Section 3 hereof except that the time of the determination thereof shall be
the
last business day prior to the day the Company receives a notice from the Holder
under this Section 11.
(b) “Warrant
Value” shall mean the Current Market Value of a Warrant Share underlying each
Warrant minus the Exercise Price of such Warrant as of the close of business
on
the last business day prior to the day the Company receives a notice from the
Holder under this Section 11.
SECTION
11.3 The
Holder shall have the right to exchange, in a cashless transaction, all or
part
of its Warrants at any time not later than 5:00
P.M., New York City Time
on the Termination Date by providing written notice (the “Notice”) to the
Company. The Notice shall set forth the number of Warrants that the Holder
elects to exchange for Warrant Shares.
-7-
SECTION
11.4 Within
three business days after receipt of the Notice by the Company, the Company
shall issue the number of Warrant Shares to the Holder which shall be determined
by dividing the Warrant Value of the Warrants being exchanged by the Exercise
Price as of the date the Notice is received by the Company. Notwithstanding
the
foregoing, the number of Warrant Shares to be so issued to the Holder shall
not
exceed the maximum number of Warrant Shares that the Holder would have been
entitled to receive had it paid the Exercise Price in cash on the day the
Company receives the Notice.
SECTION
11.5 The
Holder shall surrender the Warrant that the Holder is exchanging for Warrant
Shares upon receipt of such Warrant Shares. If the entire Warrant is being
exchanged by the Holder for Warrant Shares, the Company shall cancel the entire
Warrant. If less than the entire Warrant is being exchanged for Warrant Shares,
the Company shall issue a new Warrant to the Holder representing the portion
of
this Warrant which was not exchanged for Warrant Shares.
-8-
| SECTION 12. |
GOVERNING
LAW, JURISDICTION AND
VENUE.
|
This
Warrant shall be governed by and construed and enforced in accordance with
the
laws of the State of New York. The Company hereby consents to the exclusive
jurisdiction and venue of the courts of the State of New York located in New
York County, New York or the Unites States Federal District Court for the
Southern District of New York with respect to any matter relating to this
Warrant and the performance of the Company’s obligations hereunder and the
Company hereto hereby further consents to the personal jurisdiction of such
courts. Any action suit or proceeding brought by or on behalf of the Company
relating to such matters shall be commenced, pursued, defended and resolved
only
in such courts and any appropriate appellate court having jurisdiction to hear
an appeal from any judgment entered in such courts.
| STATMON TECHNOLOGIES CORP. | ||
| By | |
|
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Chairman/CEO | ||
| Dated: | ||
| Attest: | ||
| Secretary | ||
-9-
PURCHASE
FORM
|
Dated __________,
|
The
undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing ______________ Warrant Shares and hereby makes payment
of
______________ in payment of the actual exercise price thereof.
INSTRUCTIONS
FOR REGISTRATION OF STOCK
| Name | ||
|
(Please
typewrite or print in block letters)
|
|
|
| Address | ||
| Signature | ||
-10-