AMENDMENT
EXHIBIT
10.12
This
AMENDMENT (this “Amendment”),
dated
as of December 31, 2005, is entered into by and between CREATIVE VISTAS, INC.,
an Arizona corporation (the “Company”), and
LAURUS MASTER FUND, LTD., a Cayman Islands company (“Laurus”),
for
the purpose of amending the terms of (i) the Securities Purchase Agreement,
dated as of September 30, 2004, by and between the Company and Laurus (as
amended, modified and/or supplemented from time to time, the “Securities
Purchase Agreement”),
(ii)
the Secured Convertible Term Note, dated September 30, 2004 (as amended,
modified and/or supplemented from time to time, the “Term
Note”)
issued
by the Company pursuant to the Securities Purchase Agreement and (iii) the
Registration Rights Agreement by and between the Company and Laurus, dated
as of
September 30, 2004 (as amended, modified and/or supplemented from time to time,
the “Registration
Rights Agreement”
and,
together with the Securities Purchase Agreement and the Term Note,
the “Loan
Documents”).
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Securities Purchase Agreement.
WHEREAS,
Laurus has agreed to postpone a scheduled principal payment in respect of the
Term Note and, in consideration therefore and in consideration of the other
agreements set forth herein, the receipt and sufficiency of which is hereby
acknowledged, the Company has agreed to issue the Additional Warrant (as defined
below) to Laurus;
WHEREAS,
the Company and Laurus have agreed to make certain changes to the Term Note
and
the Registration Rights Agreement as set forth herein; and
NOW,
THEREFORE, in consideration of the above, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Laurus
and the Company hereby agree that the Company shall not be required to pay
the
Monthly Principal Amount (as defined in the Term Note) due on the first business
day of January 1, 2006 (the “Postponed
Principal”);
provided that,
the
Postponed Principal shall be due and payable in full on the Maturity Date (as
defined in the Term Note), together with all other amounts due and payable
on
such date under the Securities Purchase Agreement and the Related
Agreements.
2. In
consideration of Laurus’ agreements contained in this Amendment, the Company
hereby agrees to issue to Laurus the Warrant in the form attached hereto as
Exhibit A (as amended, modified or supplemented from time to time, the
“Additional
Warrant”)
3. Laurus
and the Company hereby agree that the Additional Warrant shall be subject to
the
terms and conditions of the Registration Rights Agreement, provided that, (i)
with respect to the Additional Warrant, the “Filing Date” under and as defined
in the Registration Rights Agreement shall be a date no later than the earlier
of (x) thirty (30) days following the date that the initial Registration
Statement filed by the Company as required by the Registration Rights Agreement
is declared effective by the Securities and Exchange Commission and (y) March
31, 2006 and (ii) the term “Warrants” under and as defined in the Registration
Rights Agreement shall include the Additional Warrant.
4. Each
amendment set forth herein shall be effective as of the date first above written
(the “Amendment
Effective Date”)
on the
date when (i) each of the Company and Laurus shall have executed and the Company
shall have delivered to Laurus its respective counterpart to this Amendment
and
(ii) the Company shall have executed and delivered to Laurus the Additional
Warrant.
5. Except
as
specifically set forth in this Amendment, there are no other amendments,
modifications or waivers to the Loan Documents, and all of the other forms,
terms and provisions of the Loan Documents remain in full force and
effect.
6. The
Company hereby represents and warrants to Laurus that (i) no Event of Default
(as defined in the Term Note) exists on the date hereof, after giving effect
to
this Amendment, (ii) on the date hereof, after giving effect to this Amendment,
all representations, warranties and covenants made by the Company in connection
with the Loan Documents are true, correct and complete and (iii) on the date
hereof, after giving effect to this Amendment, all of the Company’s and its
Subsidiaries’ covenant requirements have been met.
7. From
and
after the Amendment Effective Date, all references in the Loan Documents and
in
the other Related Agreements to the Securities Purchase Agreement, the Term
Note
and/or the Registration Rights Agreement shall be deemed to be references to
the
Securities Purchase Agreement, the Term Note and/or the Registration Rights
Agreement, as the case may be, as modified hereby.
8. This
Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and their respective successors and
permitted assigns. THIS
AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE
LAW OF THE STATE OF NEW YORK.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one instrument.
[The
remainder of this page is intentionally left blank]
-2-
IN
WITNESS WHEREOF,
each of
the Company and Laurus has caused this Amendment to the Loan Documents to be
signed in its name effective as of this 31st day of December, 2005.
CREATIVE
VISTAS, INC.
By:
/s/
Heung
Xxxx Xxx
Name:
Heung Xxxx Xxx
Title:
Secretary
LAURUS
MASTER FUND, LTD.
By:
/s/
Xxxxx
Grin
Name:
Xxxxx Grin
Title:
Director
-3-
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY
STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER
SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO CREATIVE VISTAS, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
Right
to
Purchase 100,000 Shares of Common Stock of
Creative
Vistas, Inc.
(subject
to adjustment as provided herein)
COMMON
STOCK PURCHASE WARRANT
No.
_________________
|
Issue
Date: December 31, 2005
|
CREATIVE
VISTAS, INC., a corporation organized under the laws of the State of Arizona
(“CVAS”), hereby certifies that, for value received, LAURUS MASTER FUND, LTD.,
or assigns (the "Holder"), is entitled, subject to the terms set forth below,
to
purchase from the Company (as defined herein) from and after the Issue Date
of
this Warrant and at any time or from time to time before 5:00 p.m., New York
time, through the close of business December 31, 2012 (the "Expiration Date"),
up to 100,000 fully paid and nonassessable shares of Common Stock (as
hereinafter defined), no par value per share, at the applicable Exercise
Price
per share (as defined below). The number and character of such shares of
Common
Stock and the applicable Exercise Price per share are subject to adjustment
as
provided herein.
As
used
herein the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term
"Company" shall include CVAS and any corporation which shall succeed, or
assume
the obligations of, CVAS hereunder.
(b) The
term
"Common Stock" includes (i) the Company's Common Stock, par value $0.01 per
share; and (ii) any other securities into which or for which any of the
securities described in (i) may be converted or exchanged pursuant to a plan
of
recapitalization, reorganization, merger, sale of assets or
otherwise.
(c) The
term
"Other Securities" refers to any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the
holder of the Warrant at any time shall be entitled to receive, or shall
have
received, on the exercise of the Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant
to
Section 4 or otherwise.
(d) The
"Exercise Price" applicable under this Warrant shall be a price per share
of
Common Stock of $0.80.
1. Exercise
of Warrant.
1.1 Number
of Shares Issuable upon Exercise.
From
and after the date hereof through and including the Expiration Date, the
Holder
shall be entitled to receive, upon exercise of this Warrant in whole or in
part,
by delivery of an original or fax copy of an exercise notice in the form
attached hereto as Exhibit A (the "Exercise Notice"), shares of Common Stock
of
the Company, subject to adjustment pursuant to Section 4.
1.2 Fair
Market Value.
For
purposes hereof, the "Fair Market Value" of a share of Common Stock as of
a
particular date (the "Determination Date") shall mean:
(a) If
the
Company's Common Stock is traded on the American Stock Exchange or another
national exchange or is quoted on the National or SmallCap Market of The
Nasdaq
Stock Market, Inc. ("Nasdaq"), then the closing or last sale price,
respectively, reported for the last business day immediately preceding the
Determination Date.
(b) If
the
Company's Common Stock is not traded on the American Stock Exchange or another
national exchange or on the Nasdaq but is traded on the NASD OTC Bulletin
Board
or is listed on the “pink sheets”, then the mean of the average of the closing
bid and asked prices reported for the last business day immediately preceding
the Determination Date.
(c) Except
as
provided in clause (d) below, if the Company's Common Stock is not publicly
traded, then as the Holder and the Company agree or in the absence of agreement
by arbitration in accordance with the rules then in effect of the American
Arbitration Association, before a single arbitrator to be chosen from a panel
of
persons qualified by education and training to pass on the matter to be
decided.
(d) If
the
Determination Date is the date of a liquidation, dissolution or winding up,
or
any event deemed to be a liquidation, dissolution or winding up pursuant
to the
Company's charter, then all amounts to be payable per share to holders of
the
Common Stock pursuant to the charter in the event of such liquidation,
dissolution or winding up, plus all other amounts to be payable per share
in
respect of the Common Stock in liquidation under the charter, assuming for
the
purposes of this clause (d) that all of the shares of Common Stock then issuable
upon exercise of the Warrant are outstanding at the Determination
Date.
1.3 Company
Acknowledgment.
The
Company will, at the time of a partial exercise of the Warrant, upon the
request
of the holder hereof acknowledge in writing its continuing obligation to
afford
to such holder any rights to which such holder shall continue to be entitled
after such exercise in accordance with the provisions of this Warrant. If
the
holder shall fail to make any such request, such failure shall not affect
the
continuing obligation of the Company to afford to such holder any such
rights.
-2-
1.4 Trustee
for Warrant Holders.
In the
event that a bank or trust company shall have been appointed as trustee for
the
holders of the Warrant pursuant to Subsection 3.2, such bank or trust company
shall have all the powers and duties of a warrant agent (as hereinafter
described) and shall accept, in its own name for the account of the Company
or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise of this
Warrant pursuant to this Section 1.
2. Procedure
for Exercise.
2.1 Delivery
of Stock Certificates, Etc., on Exercise.
The
Company agrees that the shares of Common Stock purchased upon exercise of
this
Warrant shall be deemed to be issued to the Holder as the record owner of
such
shares as of the close of business on the date on which this Warrant shall
have
been surrendered and payment made for such shares in accordance herewith.
As
soon as practicable after the exercise of this Warrant in full or in part,
and
in any event within three (3) business days thereafter, the Company at its
expense (including the payment by it of any applicable issue taxes) will
cause
to be issued in the name of and delivered to the Holder, or as such Holder
(upon
payment by such Holder of any applicable transfer taxes) may direct in
compliance with applicable securities laws, a certificate or certificates
for
the number of duly and validly issued, fully paid and nonassessable shares
of
Common Stock (or Other Securities) to which such Holder shall be entitled
on
such exercise, plus, in lieu of any fractional share to which such holder
would
otherwise be entitled, cash equal to such fraction multiplied by the then
Fair
Market Value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such
Holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
2.2 Exercise.
Payment
may be made either (i) in cash or by certified or official bank check payable
to
the order of the Company equal to the applicable aggregate Exercise Price,
(ii)
if there is not an effective registration statement covering the resale of
the
shares of Common Stock underlying this Warrant, by delivery of the Warrant,
or
shares of Common Stock and/or Common Stock receivable upon exercise of the
Warrant in accordance with the immediately following sentence and the formula
contained therein, or (iii) by a combination of any of the foregoing methods,
for the number of shares of Common Stock specified in such Exercise Notice
(as
such exercise number shall be adjusted to reflect any adjustment in the total
number of shares of Common Stock issuable to the Holder per the terms of
this
Warrant) and the Holder shall thereupon be entitled to receive the number
of
duly authorized, validly issued, fully-paid and non-assessable shares of
Common
Stock (or Other Securities) determined as provided herein. Notwithstanding
any
provisions herein to the contrary, if the Fair Market Value of one share
of
Common Stock is greater than the Exercise Price (at the date of calculation
as
set forth below), in lieu of exercising this Warrant for cash, the Holder
may
elect to receive shares equal to the value (as determined below) of this
Warrant
(or the portion thereof being exercised) by surrender of this Warrant at
the
principal office of the Company together with the properly endorsed Exercise
Notice 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
|
-3-
Where
X
= the
number of shares of Common Stock to be issued to the Holder
Y = |
the
number of shares of Common Stock purchasable under the Warrant
or, if only
a portion of the Warrant is being exercised, the portion of the
Warrant
being exercised (at the date of such
calculation)
|
A = |
the
Fair Market Value of one share of the Company's Common Stock (at
the date
of such calculation)
|
B = |
Exercise
Price (as adjusted to the date of such
calculation)
|
3. Effect
of Reorganization, Etc.; Adjustment of Exercise Price.
3.1 Reorganization,
Consolidation, Merger, Etc.
In case
at any time or from time to time, the Company shall (a) effect a reorganization,
(b) consolidate with or merge into any other person, or (c) transfer all
or
substantially all of its properties or assets to any other person under any
plan
or arrangement contemplating the dissolution of the Company, then, in each
such
case, as a condition to the consummation of such a transaction, proper and
adequate provision shall be made by the Company whereby the Holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after
the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior to such
consummation or such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be,
if such
Holder had so exercised this Warrant, immediately prior thereto, all subject
to
further adjustment thereafter as provided in Section 4.
3.2 Dissolution.
In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, concurrently
with
any distributions made to holders of its Common Stock, shall at its expense
deliver or cause to be delivered to the Holder the stock and other securities
and property (including cash, where applicable) receivable by the Holder
of the
Warrant pursuant to Section 3.1, or, if the Holder shall so instruct the
Company, to a bank or trust company specified by the Holder and having its
principal office in New York, NY as trustee for the Holder of the
Warrant.
3.3 Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any transfer) referred to in this Section 3, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable
to
the shares of stock and other securities and property receivable on the exercise
of this Warrant after the consummation of such reorganization, consolidation
or
merger or the effective date of dissolution following any such transfer,
as the
case may be, and shall be binding upon the issuer of any such stock or other
securities, including, in the case of any such transfer, the person acquiring
all or substantially all of the properties or assets of the Company, whether
or
not such person shall have expressly assumed the terms of this Warrant as
provided in Section 4. In the event this Warrant does not continue in full
force
and effect after the consummation of the transactions described in this Section
3, then the Company's securities and property (including cash, where applicable)
receivable by the Holders of the Warrant will be delivered to Holder or the
Trustee as contemplated by Section 3.2.
-4-
4. (a)
Extraordinary Events Regarding Common Stock.
In the
event that the Company shall (a) issue additional shares of the Common Stock
as
a dividend or other distribution on outstanding Common Stock, (b) subdivide
its
outstanding shares of Common Stock, or (c) combine its outstanding shares
of the
Common Stock into a smaller number of shares of the Common Stock, then, in
each
such event, the Exercise Price shall, simultaneously with the happening of
such
event, be adjusted by multiplying the then Exercise Price by a fraction,
the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event and the denominator of which shall be the
number
of shares of Common Stock outstanding immediately after such event, and the
product so obtained shall thereafter be the Exercise Price then in effect.
The
Exercise Price, as so adjusted, shall be readjusted in the same manner upon
the
happening of any successive event or events described herein in this Section
4.
The number of shares of Common Stock that the holder of this Warrant shall
thereafter, on the exercise hereof as provided in Section 1, be entitled
to
receive shall be increased to a number determined by multiplying the number
of
shares of Common Stock that would otherwise (but for the provisions of this
Section 4) be issuable on such exercise by a fraction of which (a) the numerator
is the Exercise Price that would otherwise (but for the provisions of this
Section 4) be in effect, and (b) the denominator is the Exercise Price in
effect
on the date of such exercise.
(b) Share
Issuances.
If the
Company shall at any time prior to the exercise in full of this Warrant issue
any shares of Common Stock or securities convertible into Common Stock to
a
person other than the Holder (except (i) pursuant to subsection 4(a) above;
(ii)
pursuant to options, warrants or other obligations to issue shares outstanding
on the date hereof as disclosed to Holder in writing; (iii) pursuant to options
that may be issued under any employee incentive stock option and/or any
qualified stock option plan adopted by the Company; (iv) pursuant to securities
issued to the original Holder on the date hereof; or (v) pursuant to securities
issued in connection with acquisitions or strategic transactions the primary
purpose of which is not raising capital, so long as, in the case of this
clause
(v), such shares of Common Stock so issued (or securities convertible into
Common Stock so issued) are restricted and do not become freely or publicly
traded in any respect prior to the two year anniversary of the issuance thereof)
for a consideration per share (the "Offer Price") less than any Exercise
Price
in effect at the time of such issuance, then such Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to
such
record date by a fraction, of which the denominator shall be the number of
shares of the Common Stock (excluding treasury shares, if any) issued and
outstanding on the date of issuance of such rights or warrants plus the number
of additional shares of Common Stock offered for subscription or purchase,
and
of which the numerator shall be the number of shares of the Common Stock
(excluding treasury shares, if any) issued and outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at the Exercise Price on the record date. For purposes hereof, the issuance
of
any security of the Borrower convertible into or exercisable or exchangeable
for
Common Stock shall result in an adjustment to the applicable Exercise Price
at
the time of issuance of such securities.
-5-
5. Certificate
as to Adjustments.
In each
case of any adjustment or readjustment in the shares of Common Stock (or
Other
Securities) issuable on the exercise of the Warrant, the Company at its expense
will promptly cause its Chief Financial Officer or other appropriate designee
to
compute such adjustment or readjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is
based, including a statement of (a) the consideration received or receivable
by
the Company for any additional shares of Common Stock (or Other Securities)
issued or sold or deemed to have been issued or sold, (b) the number of shares
of Common Stock (or Other Securities) outstanding or deemed to be outstanding,
and (c) the Exercise Price and the number of shares of Common Stock to be
received upon exercise of this Warrant, in effect immediately prior to such
adjustment or readjustment and as adjusted or readjusted as provided in this
Warrant. The Company will forthwith mail a copy of each such certificate
to the
holder of the Warrant and any Warrant agent of the Company (appointed pursuant
to Section 11 hereof).
6. Reservation
of Stock, Etc., Issuable on Exercise of Warrant.
The
Company will at all times reserve and keep available, solely for issuance
and
delivery on the exercise of the Warrant, shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of the
Warrant.
7. Assignment;
Exchange of Warrant.
Subject
to compliance with applicable securities laws, this Warrant, and the rights
evidenced hereby, may be transferred by any registered holder hereof (a
"Transferor") in whole or in part. On the surrender for exchange of this
Warrant, with the Transferor's endorsement in the form of Exhibit B attached
hereto (the "Transferor Endorsement Form") and together with evidence reasonably
satisfactory to the Company demonstrating compliance with applicable securities
laws, which shall include, without limitation, a legal opinion from the
Transferor's or company counsel that such transfer is exempt from the
registration requirements of applicable securities laws, the Company at its
expense but with payment by the Transferor of any applicable transfer taxes)
will issue and deliver to or on the order of the Transferor thereof a new
Warrant of like tenor, in the name of the Transferor and/or the transferee(s)
specified in such Transferor Endorsement Form (each a "Transferee"), calling
in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement
of Warrant.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction of this Warrant, on delivery of an indemnity agreement
or
security reasonably satisfactory in form and amount to the Company or, in
the
case of any such mutilation, on surrender and cancellation of this Warrant,
the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
9. Registration
Rights.
The
Holder of this Warrant has been granted certain registration rights by the
Company. These registration rights are set forth in a Registration Rights
Agreement entered into by the Company and Purchaser dated as of September
30,
2004, as amended, modified or supplemented from time to time.
-6-
10. Maximum
Exercise.
Notwithstanding anything contained herein to the contrary, the Holder shall
not
be entitled to convert, or be required to receive pursuant to the terms of
this
Warrant, an amount that would be convertible into that number of shares of
Common Stock which, when added to the number of shares of Common Stock otherwise
beneficially owned by such Holder including those issuable upon exercise
of
warrants held by such Holder would exceed 4.99% of the outstanding shares
of
Common Stock of the Company at the time of conversion. For the purposes of
the
immediately preceding sentence, beneficial ownership shall be determined
in
accordance with Section 13(d) of the Exchange Act and Regulation 13d-3
thereunder. The conversion limitation described in this Section 3.2 shall
automatically become null and void without any notice to the Company upon
the
occurrence and during the continuance beyond any applicable grace period
of an
Event of Default under and as defined in that certain Secured Convertible
Term
Note, dated September 30, 2004 issued by the Company to the Holder, as amended,
modified or supplemented from time to time, or upon 75 days prior notice
to the
Company.
11. Warrant
Agent.
The
Company may, by written notice to the each Holder of the Warrant, appoint
an
agent for the purpose of issuing Common Stock (or Other Securities) on the
exercise of this Warrant pursuant to Section 1, exchanging this Warrant pursuant
to Section 7, and replacing this Warrant pursuant to Section 8, or any of
the
foregoing, and thereafter any such issuance, exchange or replacement, as
the
case may be, shall be made at such office by such agent.
12. Transfer
on the Company's Books.
Until
this Warrant is transferred on the books of the Company, the Company may
treat
the registered holder hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
13. Notices,
Etc.
All
notices and other communications from the Company to the Holder of this Warrant
shall be mailed by first class registered or certified mail, postage prepaid,
at
such address as may have been furnished to the Company in writing by such
Holder
or, until any such Holder furnishes to the Company an address, then to, and
at
the address of, the last Holder of this Warrant who has so furnished an address
to the Company.
14. Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. This Warrant
shall
be governed by and construed in accordance with the laws of State of New
York
without regard to principles of conflicts of laws. Any action brought concerning
the transactions contemplated by this Warrant shall be brought only in the
state
courts of New York or in the federal courts located in the state of New York;
provided, however, that the Holder may choose to waive this provision and
bring
an action outside the state of New York. The Company agrees to submit to
the
jurisdiction of such courts and waive trial by jury. The prevailing party
shall
be entitled to recover from the other party its reasonable attorney's fees
and
costs. In the event that any provision of this Warrant is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith
and
shall be deemed modified to conform with such statute or rule of law. Any
such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of this Warrant.
The headings in this Warrant are for purposes of reference only, and shall
not
limit or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or
enforceability of any other provision. The Company acknowledges that legal
counsel participated in the preparation of this Warrant and, therefore,
stipulates that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be applied in the interpretation of
this
Warrant to favor any party against the other party.
[BALANCE
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SIGNATURE
PAGE FOLLOWS.]
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IN
WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
CREATIVE
VISTAS, INC.
|
|||
WITNESS:
|
|||
By:
|
/s/ Heung Xxxx Xxx | ||
Name:
|
Heung Xxxx Xxx | ||
Title:
|
Secretary |
-8-
EXHIBIT
A
FORM
OF SUBSCRIPTION
(To
Be
Signed Only On Exercise Of Warrant)
TO: Creative
Vistas, Inc.
Attention: Chief
Financial Officer
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable
box):
________
shares of the Common Stock covered by such Warrant; or
|
||
the
maximum number of shares of Common Stock covered by such Warrant
pursuant
to the cashless exercise procedure set forth in Section
2.
|
||
The
undersigned herewith makes payment of the full Exercise Price for such shares
at
the price per share provided for in such Warrant, which is $___________.
Such
payment takes the form of (check applicable box or boxes):
$__________
in lawful money of the United States; and/or
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the
cancellation of such portion of the attached Warrant as is exercisable
for
a total of _______ shares of Common Stock (using a Fair Market
Value of
$_______ per share for purposes of this calculation);
and/or
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||
the
cancellation of such number of shares of Common Stock as is necessary,
in
accordance with the formula set forth in Section 2.2, to exercise
this
Warrant with respect to the maximum number of shares of Common
Stock
purchasable pursuant to the cashless exercise procedure set forth
in
Section 2.
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The
undersigned requests that the certificates for such shares be issued in the
name
of, and delivered to ______________________________________________ whose
address is
___________________________________________________________________________.
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable upon exercise of the within Warrant shall be made
pursuant to registration of the Common Stock under the Securities Act of
1933,
as amended (the "Securities Act") or pursuant to an exemption from registration
under the Securities Act.
Dated:
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(Signature
must conform to name of holder as specified on the face of the
Warrant)
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Address:
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A-1
EXHIBIT
B
FORM
OF TRANSFEROR ENDORSEMENT
(To
Be
Signed Only On Transfer Of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto the
person(s) named below under the heading "Transferees" the right represented
by
the within Warrant to purchase the percentage and number of shares of Common
Stock of Creative Vistas, Inc. into which the within Warrant relates specified
under the headings "Percentage Transferred" and "Number Transferred,"
respectively, opposite the name(s) of such person(s) and appoints each such
person Attorney to transfer its respective right on the books of Creative
Vistas, Inc. with full power of substitution in the premises.
Transferees
|
Address
|
Percentage
Transferred
|
Number
Transferred
|
|||
|
||||||
Dated:
|
||||
(Signature
must conform to name of holder as specified on the face of the
Warrant)
|
||||
Address:
|
||||
|
SIGNED
IN THE PRESENCE OF:
|
(Name)
|
|
ACCEPTED
AND AGREED:
|
|
[TRANSFEREE]
|
|
(Name)
|
B-1