SINO CLEAN ENERGY INC. WARRANT [EITHER] [OR]
Exhibit
99.3
WARRANT
[EITHER]
“[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE]
[CONVERTIBLE]] HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
[OR]
“[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE]
[CONVERTIBLE]] HASBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES
ACT, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION; HEDGING TRANSACTIONS INVOLVING THE SHARES
REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.”
|
Warrant
No. X-2009-[
]
|
Dated:
June [ ]
,
2009
|
Sino
Clean Energy Inc., a Nevada corporation (the “Company”), hereby
certifies that, for value received, [NAME OF HOLDER] or its
registered assigns (including permitted transferees, the “Holder”), is entitled
to purchase from the Company up to a total of [AMOUNT] shares (as adjusted
from time to time as provided in Section 10, the
“Warrant
Shares” ) of Common Stock (as
defined below), at an exercise price equal to $0.285 per share (as adjusted from
time to time as provided in Section 10, the
“Exercise
Price”), at any time and from time to time from and after June [ ] , 2009
(the “ Initial
Exercise Date ”) until June [ ] , 2012
(the “Expiration Date”).
This
Warrant is issued pursuant to the Purchase Agreement (as defined in Section 1)
and is subject to such additional terms and conditions hereinafter. Capitalized
terms not otherwise defined shall have the meanings set forth in the Purchase
Agreement.
1.
Definitions.
The following capitalized terms shall have the meanings set forth in this
Section 1:
“Common Stock” means
the common stock of the Company, $0.001 par value per share, as constituted on
the date hereof.
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time shares of Common
Stock, including without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that are at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, shares of
Common Stock.
“Market Price” shall
mean (i) if the principal trading market for such securities is an
exchange, the average of the last reported sale prices per share for the last
ten previous Trading Days in which a sale was reported, as officially reported
on the consolidated tape of any Subsequent Market, (ii) if clause (i)
is not applicable, the average of the closing bid price per share for the last
ten previous Trading Days as reported by the OTC Bulletin Board or (iii) if
clauses (i) and (ii) are not applicable, the average of the closing bid
price per share for the last ten previous Trading Days as set forth in the Pink
Sheets listing for such securities. Notwithstanding the foregoing, if there is
no reported sales price or closing bid price, as the case may be, on any of the
ten Trading Days preceding the event requiring a determination of Market Price
hereunder, then the Market Price shall be determined in good faith by resolution
of the Board of Directors of the Company, based on the best information
available to it.
“Notes” means the
Company’s 10% Senior Secured Convertible Notes due June [ ],
2012, issued pursuant to the Purchase Agreement.
“Other
Securities” refers to any capital stock (other than Common Stock) and
other securities of the Company or any other Person which the Holder of this
Warrant at any time shall be entitled to receive, or shall have received, upon
the exercise of this 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 8 hereof
or otherwise.
“Purchase Agreement”
means that certain Securities Purchase Agreement of even date herewith among,
inter alia, the Company
and the initial Holder.
“Subsequent Market”
means any one of the following: the NASDAQ Capital Market, the New York Stock
Exchange or NYSE Amex Equities.
“Warrant Shares” shall
initially mean shares of Common Stock and in addition may include Other
Securities and Distributed Property (as defined in Section 10(c))
issued or issuable from time to time upon exercise of this Warrant.
2.
Registration of
Warrant. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem
and treat the registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the Holder, and for
all other purposes, absent actual notice to the contrary.
3.
Registration of
Transfers. The Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the Form
of Assignment attached hereto as Appendix A duly completed and signed, to
the Company at its address specified herein. Upon any such registration and
transfer, a new warrant in substantially the form of the Warrant (any such new
warrant, a “New Warrant”), evidencing the portion of this Warrant so transferred
shall be issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the transferee thereof
shall be deemed the acceptance by such transferee of all of the rights and
obligations of a holder of a Warrant.
4.
Investment
Representation. The Warrant Holder by accepting this Warrant
represents that the Warrant Holder is acquiring this Warrant for its own account
or the account of an affiliate for investment purposes and not with the view to
any offering or distribution and that the Warrant Holder will not sell or
otherwise dispose of this Warrant or the underlying Warrant Shares in violation
of applicable securities laws. The Warrant Holder acknowledges that the
certificates representing any Warrant Shares will bear a legend indicating that
they have not been registered under the United States Securities Act of 1933, as
amended (the “1933
Act”) and may not be sold by the Warrant Holder except pursuant to an
effective registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws. If this Warrant was acquired by the Warrant Holder pursuant to
the exemption from the registration requirements of the 1933 Act afforded by
Regulation S thereunder, the Warrant Holder acknowledges and covenants that this
Warrant may not be exercised by or on behalf of a Person during the one year
distribution compliance period (as defined in Regulation S) following the date
hereof.
5.
Exercise and
Duration of Warrant.
(a) A
Holder may exercise this Warrant by delivering to the Company (i) an exercise
notice, in the form attached hereto as Appendix B (the
“Exercise
Notice”), appropriately completed, duly signed and delivered in
compliance with Section 13, and (ii)
if applicable, payment of the Exercise Price for the number of Warrant Shares as
to which this Warrant is being exercised (as set forth in Section 5(b)
below), and the date such items are received by the Company is an “Exercise
Date.” Execution and delivery of an Exercise Notice in respect
of less than all of the shares issuable upon exercise of this Warrant shall
result in the cancellation of the original Warrant and issuance of a New Warrant
evidencing the right to purchase the remaining number of Warrant Shares. At
5:00 P.M. New York City time on the Expiration Date, any unexercised
portion of this Warrant shall be and become void and of no value.
(b) The
Holder shall pay the Exercise Price in cash, by certified bank check payable to
the order of the Company or by wire transfer of immediately available funds in
accordance with the Company’s instructions.
(c) If
at any time (i) this Warrant is exercised after one year from the date of
issuance of this Warrant but before the Expiration Date and (ii) during the
Trading Day period immediately preceding the Holder's delivery of an Exercise
Notice in respect of such exercise, a Registration Statement (as defined in the
Purchase Agreement) covering the Warrant Shares that are the subject of the
Exercise Notice (the “Unavailable Warrant
Shares”) is not available for the resale of such Unavailable Warrant
Shares, the Holder of this Warrant also may exercise this Warrant as to any or
all of such Unavailable Warrant Shares and, in lieu of making the cash payment
otherwise contemplated to be made to the Company upon such exercise in payment
of the aggregate Exercise Price, elect instead to receive upon such exercise a
reduced number of shares of Common Stock (the “Net Number”)
determined according to the following formula (a “Cashless
Exercise”):
Net Number = (A x B) - (A x
C)
---------------------
B
For
purposes of the foregoing formula:
A= the
total number of shares with respect to which this Warrant is then being
exercised in a Cashless Exercise.
B= the
Market Price on the Trading Day immediately preceding the date of the Exercise
Notice.
C= the
Exercise Price then in effect for the applicable Warrant Shares at the time of
such exercise.
There
cannot be a Cashless Exercise unless “B” exceeds “C”.
6.
Delivery of Warrant
Shares.
(a) Upon
each exercise of this Warrant, the Company shall promptly issue or cause to be
issued and deliver or cause to be delivered to the Holder, in such name or names
as the Holder may designate, a certificate for the Warrant Shares issuable upon
such exercise (the “Certificate”). The
Holder, or any Person so designated by the Holder to receive the Warrant Shares,
shall be deemed to have become holder of record of such Warrant Shares as of the
Exercise Date.
(b) This
Warrant is exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this Warrant
following one or more partial exercises, the Company shall issue or cause to be
issued, at its expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
7.
Charges, Taxes and
Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder
for any issue or transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such certificates, all
of which taxes and expenses shall be paid by the Company; 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 issue, delivery or registration of any certificates for
Warrant Shares or Warrant in a name other than that of the Holder and that the
Holder will be required to pay any tax with respect to cash received in lieu of
fractional shares. The Holder shall be responsible for all other tax liability
that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
8.
Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and
upon cancellation hereof, or in lieu of and in substitution for this Warrant, a
New Warrant, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested.
9.
Reservation of Warrant
Shares. The Company covenants that it will at all times reserve and keep
available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of this entire
Warrant, free from all taxes, liens, claims, encumbrances with respect to the
issuance of such Warrant Shares and will not be subject to any pre-emptive
rights or similar rights (taking into account the adjustments and restrictions
of Section 10 hereof). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued, fully paid and nonassessable. The Company will take all such
action as may be necessary to assure that such shares of Common Stock may be
issued as provided herein without violation of any applicable law or regulation,
or of any requirements of any securities exchange or automated quotation system
upon which the Common Stock may be listed or quoted, as the case may
be.
10.
Certain
Adjustments. The Exercise Price and/or number of Warrant Shares issuable
upon exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 10.
(a)
Stock Dividends. If the
Company, at any time while this Warrant is outstanding, pays a dividend on its
Common Stock payable in additional shares of Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, then in each such case the Exercise Price shall be multiplied by a
fraction, (A) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to the opening of business on the day
after the record date for the determination of stockholders entitle to receive
such dividend or distribution and (B) the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to this Section 10(a)
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution.
(b)
Stock Splits. If the
Company, at any time while this Warrant is outstanding, (i) subdivides
outstanding shares of Common Stock into a larger number of shares, or
(ii) combines outstanding shares of Common Stock into a smaller number of
shares, then in each such case the Exercise Price shall be multiplied by a
fraction, (A) the numerator of which shall be the number of shares of
Common Stock outstanding immediately before such event and (B) the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment pursuant to this Section 10(b)
shall become effective immediately after the effective date of such subdivision
or combination.
(c)
Other Distributions. If
the Company, at any time while this Warrant is outstanding, distributes to
holders of Common Stock (i) evidences of its indebtedness, (ii) shares
of any class of capital stock (other than Common Stock or Common Stock
Equivalents), (iii) rights or warrants to subscribe for or purchase any
shares of any class of capital stock (other than Common Stock or Common Stock
Equivalents) or (iv) any other asset, other than a distribution of Common
Stock covered by Section 10(a), (in
each case, “Distributed
Property”), then in each such case the Exercise Price in effect
immediately prior to the record date fixed for determination of stockholders
entitled to receive such distribution (and the Exercise Price thereafter
applicable) shall be adjusted (effective on and after such record date) to equal
the product of such Exercise Price multiplied by a fraction, (A) the
numerator of which shall be Market Price on such record date less the then fair
market value of the Distributed Property distributed in respect of one
outstanding share of Common Stock, which, if the Distributed Property is other
than cash or marketable securities, shall be as determined in good faith by the
Board of Directors of the Company whose determination shall be described in a
board resolution, and (B) the denominator of which shall be the Market
Price on such record date.
(d) Other
Issuances. If the Company or any subsidiary thereof, as
applicable, at any time while this Warrant is outstanding, shall issue shares of
Common Stock or Common Stock Equivalents, other than Excluded Issuance,
entitling any Person to acquire shares of Common Stock, at a price per share
(the “New Securities
Issuance Price”) less than the Exercise Price (if the holder of the
Common Stock or Common Stock Equivalent so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options or rights
per share which is issued in connection with such issuance, be entitled to
receive shares of Common Stock at a price per share which is less than the
Exercise Price, such issuance shall be deemed to have occurred for less than the
Exercise Price), then the Exercise Price shall be reduced effective concurrently
with such issuance to the New Securities Issuance Price. The Company shall
notify the Holder in writing, no later than one (1) business day following the
issuance of any Common Stock or Common Stock Equivalents subject to this
Section, indicating therein the applicable issuance price, or of applicable
reset price, exchange price, conversion price and other pricing terms. No
adjustment under this Section shall be made as a result of issuances and
exercises of options to purchase shares of Common Stock issued for compensatory
purposes pursuant to any of the Company's stock option or stock purchase plans.
“Excluded
Issuances” means (i) Common Stock issued in connection with the
conversion or exercise of any Common Stock Equivalents outstanding on
the date of the Purchase Agreement and (ii) issuances of Common Stock and Common
Stock Equivalents described in Schedule 2.1(c)(8) to the Purchase Agreement
..
(e)
Fundamental
Transactions. If, at any time while this Warrant is outstanding,
(i) the Company effects any merger or consolidation of the Company with or
into another Person, (ii) the Company effects any sale of all or substantially
all of its assets in one or a series of related transactions or (iii) there
shall occur any merger of another Person into the Company whereby the Common
Stock is cancelled, converted or reclassified into or exchanged for other
securities, cash or property (in any such case, a “Fundamental
Transaction”), then, as a condition to the consummation of such
Fundamental Transaction, the Company shall (or, in the case of any Fundamental
Transaction in which the Company is not the surviving entity, the Company shall
take all reasonable steps to cause such other Person to) execute and deliver to
the Holder of this Warrant a written instrument providing that:
(i) so
long as any Warrant remains outstanding, each Warrant, upon the exercise thereof
at any time on or after the consummation of such Fundamental Transaction and on
such terms and subject to such conditions as shall be nearly equivalent as may
be practicable to the provisions set forth in this Warrant, shall be exercisable
into, in lieu of Common Stock issuable upon such exercise prior to such
consummation, the securities or other property (the “Substituted
Property”) that would have been received in connection with such
Fundamental Transaction by a holder of the number of shares of Common Stock into
which such Warrant was exercisable immediately prior to such Fundamental
Transaction, assuming such holder of Common Stock:
(A) is
not a Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or transfer was
made, as the case may be (a “Constituent Person”),
or an Affiliate of a Constituent Person; and
(B) failed
to exercise such Xxxxxx’s rights of election, if any, as to the kind or amount
of securities, cash and other property receivable in connection with such
Fundamental Transaction (provided, however, that if
the kind or amount of securities, cash or other property receivable in
connection with such Fundamental Transaction is not the same for each share of
Common Stock held immediately prior to such Fundamental Transaction by a Person
other than a Constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised (a “Non-Electing Share”),
then, for the purposes of this Section 10(e) ,
the kind and amount of securities, cash and other property receivable in
connection with such Fundamental Transaction by each Non-Electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
Non-Electing Shares); and
(ii) the
rights and obligations of the Company (or, in the event of a transaction in
which the Company is not the surviving Person, such other Person) and the Holder
in respect of Substituted Property shall be as nearly equivalent as may be
practicable to the rights and obligations of the Company and Holder in respect
of Common Stock hereunder.
Such
written instrument shall provide for adjustments which, for events subsequent to
the effective date of such written instrument, shall be as nearly equivalent as
may be practicable to the adjustments provided for in Section 10. The
above provisions of this Section 10(e)
shall similarly apply to successive Fundamental Transactions.
(f)
Adjustment of Warrant
Shares. Simultaneously with any adjustment to the Exercise Price pursuant
to paragraphs (a) through (d) of this Section 10, the
number of Warrant Shares that may be purchased upon exercise of this Warrant
shall be increased or decreased proportionately, so that after such adjustment
the aggregate Exercise Price payable hereunder for the increased or decreased
number of Warrant Shares shall be the same as the aggregate Exercise Price
payable for the Warrant Shares immediately prior to such
adjustment.
(g)
Calculations. All
calculations under this Section 10 shall
be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale of Common
Stock.
(h)
Adjustments.
Notwithstanding any provision of this Section 10, no
adjustment of the Exercise Price shall be required if such adjustment is less
than $0.01; provided,
however, that any adjustments which by reason of this Section 10(h)
are not required to be made shall be carried forward and taken into account for
purposes of any subsequent adjustment.
(i)
Notice of Adjustments.
Upon the occurrence of each adjustment pursuant to this Section 10, the
Company will promptly deliver to the Holder a certificate executed by the
Company’s Chief Financial Officer setting forth, in reasonable detail, the event
requiring such adjustment and the method by which such adjustment was
calculated, the adjusted Exercise Price and the adjusted number or type of
Warrant Shares or other securities issuable upon exercise of this Warrant (as
applicable). The Company will retain at its office copies of all such
certificates and cause the same to be available for inspection at said office
during normal business hours by the Holder or any prospective purchaser of the
Warrant designated by the Holder.
(j)
Notice of Corporate
Events. If the Company (i) declares a dividend or any other
distribution of cash, securities or other property in respect of its Common
Stock, including, without limitation, any granting of rights or warrants to
subscribe for or purchase any capital stock of the Company or any subsidiary of
the Company, (ii) authorizes, approves, enters into any agreement
contemplating, or solicits stockholder approval for, any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of
the affairs of the Company, then the Company shall deliver to the Holder a
notice describing the material terms and conditions of such transaction at least
15 calendar days prior to the applicable record or effective date on which a
Person would need to hold Common Stock in order to participate in or vote with
respect to such transaction, and the Company will take all steps reasonably
necessary in order to ensure that the Holder is given the practical opportunity
to exercise this Warrant prior to such time so as to participate in or vote with
respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.
11.
Fractional
Shares. The Company shall not be required to issue or cause to be issued
fractional Warrant Shares on the exercise of this Warrant. If any fraction of a
Warrant Share would, except for the provisions of this Section, be issuable upon
exercise of this Warrant, the Company shall round the number of Warrant Shares
issuable, up to the next whole number.
12.
Remedies. The
Company stipulates that the remedies at law of the Holder of this Warrant in the
event of any default or threatened default by the Company in the performance of
or compliance with any of the terms of this Warrant are not and will not be
adequate, and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
13.
Notices. Any
and all notices or other communications or deliveries hereunder (including
without limitation any Exercise Notice) shall be in writing and shall be mailed
by certified mail, return receipt requested, or by a nationally recognized
courier service or delivered (in person or by facsimile), against receipt to the
party to whom such notice or other communication is to be given. Any notice or
other communication given by means permitted by this Section 13 shall be deemed
given at the time of receipt thereof. The address for such notices or
communications shall be as set forth below:
|
If
to the Company:
|
||
|
Room
1605, Suite B, Zhengxin Building
|
||
|
Xx.
0, Xxxxxx 0xx Xxxx
|
||
|
Gaoxin
District, Xi’an
|
||
|
Shaanxi
Province, PRC
|
||
|
Attn:
Xx. Xxxxxx Xxx
|
||
|
Fax: x00-00-00000000
|
||
|
With
a copy to:
|
Xxxxxxxxxx
& Xxxxx, LLP
|
|
|
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
|
||
|
Los
Angeles, CA 90024
|
||
|
Attn: Xxxxx
X. Xxxxx, Esq.
|
||
|
Fax: (000)
000-0000
|
||
|
If
to the Holder:
|
As
set forth in Schedule I to the Purchase
Agreement
|
Or such
other address as is provided to such other party in accordance with this Section
13.
14.
Warrant Agent.
The Company shall serve as warrant agent under this Warrant. Upon 30 days’
notice to the Holder, the Company may appoint a new warrant agent. Any Person
into which any new warrant agent may be merged, any Person resulting from any
consolidation to which any new warrant agent shall be a party or any Person to
which any new warrant agent transfers substantially all of its corporate trust
or shareholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly
cause notice of its succession as warrant agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder’s last address as shown on
the Warrant Register.
15.
Miscellaneous.
(a) This
Warrant may be assigned by the Holder. This Warrant may not be assigned by the
Company, except to a successor in the event of a Fundamental Transaction. This
Warrant shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
(b) The Company
will not, by amendment of its governing documents or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Holder against impairment. Without limiting the generality of the foregoing,
the Company (i) will not increase the par value of any Warrant Shares above the
amount payable therefor upon exercise thereof, and (ii) will take all such
action as may be reasonably necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares on the
exercise of this Warrant, free from all taxes, liens, claims and encumbrances
and (iii) will not close its shareholder books or records in any manner which
interferes with the timely exercise of this Warrant.
(c) This
Warrant shall be governed by and construed and enforced in accordance with the
laws of the State of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and Federal courts sitting in the County of
New York, New York, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding that it is not personally subject to the jurisdiction of
any such court or that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
THE PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(d) Neither
party shall be deemed in default of any provision of this Warrant, to the extent
that performance of its obligations or attempts to cure a breach hereof are
delayed or prevented by any event reasonably beyond the control of such party,
including, without limitation, war, hostilities, acts of terrorism, revolution,
riot, civil commotion, national emergency, strike, lockout, unavailability of
supplies, epidemic, fire, flood, earthquake, force of nature, explosion,
embargo, or any other Act of God, or any law, proclamation, regulation,
ordinance, or other act or order of any court, government or governmental
agency, provided that
such party gives the other party written notice thereof promptly upon discovery
thereof and uses reasonable efforts to cure or mitigate the delay or failure to
perform.
(e) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(f) In case any
one or more of the provisions of this Warrant shall be deemed invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its
authorized officer as of the date first indicated above.
|
By:
|
|
|
Name:
Xxxxxx Xxx
|
|
|
Title:
Chief Executive
Officer
|
|
