Attached files
| file | filename |
|---|---|
| 8-K - Plastinum Polymer Technologies Corp. | v171926_8k.htm |
| EX-4.1 - Plastinum Polymer Technologies Corp. | v171926_ex4-1.htm |
SECURITIES PURCHASE
AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
made as of January 19, 2010 by and between Plastinum Polymer Technologies
Corp., a Delaware corporation (the “Company”),
and Richard von
Tscharner, a natural person (the “Investor”).
In
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Purchase
and Sale of Securities; Closing.
1.1 Sale and
Issuance of Note; Issuance of Warrant.
(a) Subject
to the terms and conditions of this Agreement and in reliance on the
representations and warranties set forth or referred to herein, the Company
hereby agrees to sell and issue to the Investor, and the Investor hereby agrees
to purchase from the Company, at the Closing (as hereinafter defined), a
Convertible Promissory Note in the principal amount of $2,172,000 (the “Purchase
Price”), such Convertible Promissory Note to be in the form attached
hereto as Exhibit A
with a maturity date of January 19, 2013 (the "Note"). The
Note, including accrued but unpaid interest thereon, will be convertible into
shares of Common Stock of the Company, par value $.01 per share (“Common
Stock”; the “Shares”),
at an initial conversion price of $0.20 per Share, subject to
adjustment as provided therein.
(b) In
connection with the purchase and sale of the Note hereunder and in addition
thereto, the Company agrees to issue to the Investor, as additional incentive
for the purchase of the Note, at the Closing a warrant to purchase an aggregate
of 3,620,000 shares of Common Stock containing the terms and in the form
attached as Exhibit B
hereto (the “Warrant”;
collectively with the Note, the “Securities”).
1.2 Closing. The closing of
the purchase, sale and issuance of the Note shall take place at the offices of
Westerman Ball Ederer Miller & Sharfstein, LLP (“WBEMS”),
170 Old Country Road, Fourth Floor, Mineola, New York 11501, simultaneous with
the execution hereof (the "Closing"). At
the Closing, the Company shall deliver to the Investor the duly executed Note
and the duly executed Warrant against delivery by the Investor to the Company of
the Purchase Price by wire transfer of the amount thereof to the Company’s
account or by such other method agreed to between the Investor and the
Company.
1.3 Defined
Terms Used in this Agreement. In addition to
the terms defined elsewhere in this Agreement, the following terms used in this
Agreement shall be construed to have the meanings set forth below.
“Approvals”
means, collectively, all actions, approvals, consents, waivers, exemptions,
Orders, authorizations, registrations, declarations, filings and
recordings.
“Business
or Condition” of the Company means the business, operations, assets,
properties, earnings, prospects or condition (financial or other) of the
Company.
1
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Governmental
Body” means any federal, state, municipal, local or other governmental
department, commission, board, bureau, agency, instrumentality, political
subdivision or taxing authority, of any country.
“Material
Adverse Change; Material Adverse Effect; Materially Adverse” in, on or
with respect to, the Company, shall mean a material adverse change in the
Company’s Business or Condition, a material adverse effect on the Company’s
Business or Condition or an event which is materially adverse to the Company's
Business or Condition.
“Order”
means any order, writ, injunction, decree, judgment, award, determination,
direction or demand by a Governmental Body, arbitrator or court.
“Person”
means any individual, corporation, association, partnership, joint venture,
limited liability company, trust or estate, organization, business, government
or agency or political subdivision thereof, or any other entity.
“Securities
Act” means the Securities Act of 1933, as amended.
2. Representations
and Warranties of the Company. The Company
hereby represents and warrants to the Investor that:
2.1 Organization,
Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as presently conducted or proposed to be
conducted. The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the failure so to qualify would
have a Material Adverse Effect.
2.2 Authorization. All company
action on the part of the Company necessary for the authorization, execution and
delivery of this Agreement and the authorization, issuance and delivery of the
Securities has been taken and this Agreement, when executed and delivered by the
Company and assuming due execution and delivery by the Investor, shall
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the
enforcement of creditors’ rights generally, and as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
2.3 Valid
Issuance of Securities. The Securities
when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and free of restrictions on transfer other than restrictions on
transfer under applicable state and federal securities laws.
2
2.4 Consents
and Approvals. No Approval by,
from or with and no other action in respect of, any Governmental Body or any
other Person (including any trustee or holder of any indebtedness, securities or
other obligations of the Company) is required (a) for or in
connection with the valid execution and/or delivery by the Company of
or the performance by the Company of its obligations under this Agreement
or the consummation by the Company of the transactions contemplated hereby,
including the offer, issuance, sale and delivery by the Company of the
Securities, or (b) as a condition to
the legality, validity or enforceability as against the Company of this
Agreement.
3. Representations
and Warranties of the Investor. The Investor
hereby represents and warrants to the Company that:
3.1 Authorization. The Investor has
full power and authority to enter into this Agreement. This
Agreement, when executed and delivered by the Investor, assuming due execution
and delivery by the other parties hereto, will constitute a valid and legally
binding obligation of the Investor, enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors’ rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, or
other equitable remedies.
3.2 Restricted
Securities. The Investor
understands that each of the Securities is a “restricted security” under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Investor must hold each of the Securities indefinitely unless it is
registered with the Securities and Exchange Commission (“SEC”)
and qualified by state authorities, or an exemption from such registration and
qualification requirements is available.
3.3 Foreign
Investor. If the Investor
is not a United States person (as defined by Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended), the Investor hereby represents that
he has satisfied himself as to the full observance of the laws of his
jurisdiction in connection with this Agreement and the purchase of the
Securities and such purchase will not violate any applicable securities or other
laws of the Investor’s jurisdiction.
4. Registration. The Company shall
prepare and file with the SEC a Form S-1 registration statement under the
Securities Act covering the resale of the number of shares of Common Stock
issuable upon conversion of the Note and exercise of the Warrant on or prior to
February 1, 2010 and shall use commercially reasonable efforts to cause the
registration statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof. In addition, the
Company shall prepare and file with the SEC another registration statement
under the Securities Act covering the resale of any additional shares of Common
Stock which may be issuable under the Note; provided, however, that the
Company shall not be required to file such additional registration statement if
such additional shares of Common Stock could otherwise be sold freely under Rule
144 under the Securities Act upon issuance.
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5. Miscellaneous.
5.1
Use
of Proceeds. The parties agree
that the net proceeds from the issuance of the Securities will be used for
general working capital purposes.
5.2 Amendment
of Prior Note Purchase Agreements. Section 4
(Registration) of each of (i) that certain Note Purchase Agreement entered into
between the Company and the Investor as of June 15, 2009 and (ii) that certain
Note Purchase Agreement entered into between the Company and the Investor as of
September 25, 2009 is hereby amended by changing the date appearing in that
Section to February 1, 2010.
5.3 Successors
and Assigns. This Agreement
may not be assigned by the Company without the prior written consent of the
Investor. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
5.4 Governing
Law; Forum. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of New York, without giving effect to principles of
conflicts of law. Each of the parties hereto submits to the personal
jurisdiction of and each agrees that all proceedings relating hereto shall be
brought in federal or state courts located within the State of New
York.
5.5 Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one instrument.
5.6 Titles
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
5.7 Notices. Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier
addressed to the party to be notified at such party’s address as set forth on
the signature page hereto, or as subsequently modified by written notice, and if
to the Company, with a copy to Westerman Ball Ederer Miller and Sharfstein, LLP,
1201 RXR Plaza, Uniondale, New York 11556, Attn: Alan C. Ederer,
Esq.
5.8 Confidentiality. This Agreement is
confidential, and none of its provisions or terms shall be disclosed to anyone
who is not an Investor or an officer or director of the Company or their agents,
advisers or legal counsel, unless required by law.
5.9 Entire
Agreement. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof, and any and all other written or oral agreements relating
to the subject matter hereof existing between the parties hereto are expressly
canceled. This Agreement may be modified or amended only with the
written consent of all of the parties hereto.
4
IN
WITNESS WHEREOF, the parties have duly executed this Securities Purchase
Agreement as of the date first written above.
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PLASTINUM
POLYMER TECHNOLOGIES CORP.
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By:
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/s/ Jacques Mot
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Name: Jacques
Mot
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Title:
President and Chief Executive Officer
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Address:
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10100
Santa Monica Blvd., Suite 300
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Los
Angeles, CA 90067
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/s/ Richard von
Tscharner
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Richard
von Tscharner
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Address:
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87
Route de Suisse
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Coppet
1296
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Switzerland
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5
EXHIBIT
A
FORM OF
CONVERTIBLE NOTE
NEITHER
THIS NOTE NOR ANY SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF ANY STATE. NEITHER THIS NOTE NOR ANY SECURITIES
ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THIS NOTE OR SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE UNDER SUCH ACT
UNLESS SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO A VALID EXEMPTION THEREFROM
UNDER THE ACT.
PLASTINUM
POLYMER TECHNOLOGIES CORP.
Convertible
Promissory Note
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$2,172,000.00
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January
19, 2010
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FOR VALUE
RECEIVED, the undersigned Plastinum Polymer Technologies
Corp., a Delaware corporation (referred to herein as "Borrower"
or the "Company"),
promises to pay to the order of Richard von Tscharner, his
successors or permitted assigns (the "Lender"),
the principal sum of Two Million One Hundred Seventy Two Thousand Dollars
($2,172,000.00) (the "Principal
Amount") on January 19, 2013 (the "Maturity
Date"), together with interest on the unpaid Principal Amount of this
Note at a rate equal to ten percent (10%) per annum calculated on the basis of a
360 day year (the "Interest
Rate"). Interest accrued hereunder shall be due and payable on
January 19, 2011, January 19, 2012 and the Maturity Date.
Principal
and interest payments due hereunder are payable in lawful money of the United
States of America to the Lender at the address set forth in that certain
Securities Purchase Agreement between the Borrower and the Investor identified
therein of even date herewith, as amended from time to time (the "Securities
Purchase Agreement") and pursuant to which this Note is
issued. The terms and conditions of the Securities Purchase Agreement
and all other loan documents executed in connection therewith ("Loan
Documents") are incorporated by reference herein and made a part
hereof. All capitalized terms used but not otherwise defined herein
shall have the respective meanings as set forth in the Securities Purchase
Agreement.
Section
1. Conversion.
(a) At
any time from the original issue date hereof through the date that this Note is
paid in full, Lender shall have the right, in its sole discretion, to convert
the then outstanding Principal Amount of this Note (the “Convertible
Principal Balance”) plus accrued but unpaid interest under this Note, in
whole or in part, into Shares at an initial conversion price equal to $0.20 per Share, subject to
adjustment as provided in Section 2 herein (the “Conversion
Price”). Any accrued but unpaid interest on any portion of the
Note that is converted into Shares wherein such interest is not converted into
Shares shall be paid by the Company at the time of such
Conversion.
6
(b) Lender
may convert this Note at the then applicable Conversion Price by the surrender
of this Note (properly endorsed) to the Company at the principal office of the
Borrower, together with the form of Notice of Conversion attached hereto as
Annex
A (a “Notice of
Conversion”) duly completed, dated and executed, specifying therein the
principal amount of this Note and/or outstanding interest to be
converted. The “Conversion Date” shall be the date that such Notice
of Conversion and this Note is duly provided to Borrower hereunder (or, at
Lender's option, the next interest payment date with respect to Lender's
conversion of any scheduled interest payment). In the event that the
Lender shall specify a name or names other than that of the Lender to receive
any of the Shares issuable upon such exercise of the conversion option, the
Notice of Conversion also shall be accompanied by payment of all transfer taxes
payable upon the issuance of the Shares to such specified
person(s).
(c) On
the date of receipt by the Company of the duly completed, dated and executed
Notice of Conversion, this Note and applicable transfer taxes, if any, all in
accordance with Section 1(b) with respect to a conversion of any portion of this
Note, the Lender (and any person(s) receiving Shares in lieu of the Lender)
shall be deemed to have become the holder of record for all purposes of the
Shares to which such valid conversion relates.
(d) As
soon as practicable, but not in excess of five business days, after the valid
conversion of any portion of this Note, the Company, at the Company’s expense
(including the payment by the Company of any applicable issuance and similar
taxes, but excluding the transfer taxes referred to in Section 1(b)), will cause
to be issued in the name of and delivered to the Lender (and/or such other
person(s) identified in the Notice of Conversion with respect to such
conversion), certificates evidencing the number of duly authorized, validly
issued, fully paid and non-assessable Shares to which the Lender (and/or such
other person(s) identified in such Notice of Conversion), shall be entitled to
receive upon the conversion, as adjusted to reflect the effects, if any, of the
anti-dilution provisions of Section 2, such certificates to be in such
reasonable denominations as Lender may request when delivering the Notice of
Conversion.
(e) If
less than the entire Convertible Principal Balance of this Note is being
converted, the Company shall execute and deliver to the Lender a new replacement
Note (dated as of the date hereof) evidencing a principal amount which is the
percentage of the original Principal Amount equal to the portion of the
Convertible Principal Balance that has not been so converted.
Section 2. Conversion Price
Adjustment.
The
initial Conversion Price as stated above shall be subject to adjustment from
time to time and such Conversion Price as adjusted shall likewise be subject to
further adjustment, all as hereinafter set forth.
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(a) If
the Company shall effect a subdivision of the Common Stock, the Conversion Price
then in effect immediately before such subdivision shall be proportionately
decreased. If the Company shall combine the outstanding Common Stock,
the Conversion Price then in effect immediately before the combination shall be
proportionately increased. If the Company shall make or issue a
dividend or other distribution payable in securities, then and in each such
event provision shall be made so that the holder of this Note shall receive upon
conversion hereof, in addition to the number of Shares receivable thereupon, the
amount of securities that the holder of this Note would have received had this
Note been converted into Shares on the date of such event and had such holder
thereafter during the period from the date of such event to and including the
date of conversion of this Note retained such securities receivable by such
holder as aforesaid during such period, giving effect to all adjustments called
for during such period under this paragraph. If the Company shall
reclassify its Common Stock (including any reclassification in connection with a
consolidation or merger in which the Company is the surviving entity), then and
in each such event provision shall be made so that such holder shall receive
upon conversion hereof the amount of such reclassified shares of Common Stock
that such holder would have received had this Note been converted into Shares
immediately prior to such reclassification and had such holder thereafter,
during the period from the date of such event to and including the date of
conversion of this Note, retained such reclassified shares of Common Stock,
giving effect to all adjustments called for during such period under this
paragraph with respect to the rights of the holder of this Note. The
form of this Note need not be changed because of any adjustment in the number of
Shares subject to this Note pursuant to this Section.
(c) Whenever
the Conversion Price shall be adjusted as provided in this Section 2, the
Company shall reasonably promptly provide notice of such adjustment to the
Lender together with a written statement from an authorized officer of the
Company, showing in reasonable detail the facts requiring such adjustment and
the Conversion Price that shall be in effect after such
adjustment. Notwithstanding the foregoing, no adjustment in the
Conversion Price shall be required unless such adjustment would require a change
of at least 1% in such Conversion Price; provided, however, that any
adjustments which by reason of this Section are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment.
(d) In
case of any consolidation or merger of the Company with or into another entity
or the conveyance of all or substantially all of the assets of the Company to
another entity (collectively, an “Organic
Change”), this Note shall thereafter be convertible (to the extent such
conversion is permitted hereunder) into the number of shares of common stock or
other securities or property to which a holder of the number of shares of Common
Stock of the Company deliverable upon conversion of this Note would have been
entitled had this Note been converted immediately prior to such Organic Change
and held until after the closing of such Organic Change; and, in any such case,
appropriate adjustment shall be made in the application of the provisions herein
set forth with respect to the rights and interest thereafter of the holder of
this Note, to the end that the provisions set forth herein shall be thereafter
applicable, as nearly as reasonably may be, in relation to any shares of Common
Stock or other property thereafter deliverable upon the conversion of this
Note.
8
Section
3. Reservation of Common
Stock. The Borrower covenants that it will at all times
reserve and keep available solely for the purpose of issuance upon conversion of
this Note as herein provided, free from preemptive rights or any other actual
contingent purchase rights of persons other than the Lender, not less than such
number of shares of Common Stock as shall be issuable upon the conversion of the
outstanding Principal Amount of this Note and accrued and unpaid interest
hereunder and, from time to time, will take all steps necessary to provide
sufficient reserves of Shares issuable upon conversion of this
Note. The Borrower covenants that all Shares that may be issuable
upon conversion of this Note shall, upon issue, be duly and validly authorized,
issued and fully paid and nonassessable. No consent of any other
party and no consent, license, approval or authorization of, or registration or
declaration with, any governmental authority, bureau or agency is required in
connection with the execution, delivery or performance by the Borrower, or the
validity or enforceability of this Note other than such as have been met or
obtained. The execution, delivery and performance of this Note and all other
agreements and instruments executed and delivered or to be executed and
delivered pursuant hereto or thereto or the securities issuable upon conversion
of this will not violate any provision of any existing law or regulation or any
order or decree of any court, regulatory body or administrative agency or the
Certificate of Incorporation or Bylaws of the Borrower or any mortgage,
indenture, contract or other agreement to which the Borrower is a party or by
which the Borrower or any property or assets of the Borrower may be
bound.
Section
4. Voluntary
Prepayments. The Principal Amount of this Note may be
voluntarily prepaid by the Company, either in full or in part, at any time prior
to the Maturity Date; provided, however, that the
Company shall give the Lender two (2) months’ prior notice of any such
prepayment and the Lender shall remain permitted to convert all or any portion
of this Note as permitted herein prior to the prepayment.
Section
5. Transferability. This
Note and any of the rights granted hereunder are freely transferable by the
Lender, in its sole discretion, subject to federal and state securities law
restrictions, if any.
Section
6. Event of
Default.
(a) An
"Event of Default", wherever used herein, means any one of the following events
(whatever the reason and whether it shall be voluntary or involuntary or
effected by operation of law or pursuant to any judgment, decree or order of any
court, or any order, rule or regulation of any administrative or governmental
body), and solely with respect to the events described in clauses (ii) and (iv)
such events having not been cured after 10 days notice thereof:
(i) Any
default in the payment of the principal of, interest on or other charges in
respect of this Note as and when the same shall become due and payable (whether
the Maturity Date or by acceleration or otherwise);
9
(ii) The
Borrower or any subsidiary shall fail to observe or perform any other material
covenant, agreement or warranty contained in, or otherwise commit any breach or
default of any provision of this Note or any Loan Document to which it is a
party;
(iii) The
Borrower or any subsidiary shall commence, or there shall be commenced against
the Borrower or any subsidiary, a proceeding under any applicable bankruptcy or
insolvency laws as now or hereafter in effect or any successor thereto, or the
Borrower or any subsidiary commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or subsidiary or there is commenced
against the Borrower or subsidiary any such bankruptcy, insolvency or other
proceeding which remains undismissed for a period of 90 days; or the Borrower or
subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or the Borrower or
subsidiary suffers any appointment of any custodian, private or court appointed
receiver or the like for it or any substantial part of its property which
continues undischarged or unstayed for a period of 90 days; or the Borrower or
subsidiary makes a general assignment for the benefit of creditors; or the
Borrower or subsidiary shall fail to pay, or shall state that it is unable to
pay, or shall be unable to pay, its debts generally as they become due; or the
Borrower or subsidiary shall by any act or failure to act expressly indicate its
consent to, approval of or acquiescence in any of the foregoing; or any
corporate or other action is taken by the Borrower or subsidiary for the purpose
of effecting any of the foregoing; or
(iv) The
Borrower or any subsidiary shall default in any of its obligations under any
other note or any mortgage, credit agreement or other facility, indenture
agreement, factoring agreement or other instrument under which there may be
issued, or by which there may be secured or evidenced any indebtedness for
borrowed money or money due under any leasing or factoring arrangement of the
Borrower, whether such indebtedness now exists or shall hereafter be created and
such default shall result in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due and
payable.
(b) Following
an uncured Event of Default, the Interest Rate shall increase to fifteen percent
(15%) per annum immediately following such Event of Default; provided, that the
Interest Rate shall thereafter revert back to the prior Interest Rate upon all
Events of Default being cured. Upon
the occurrence of an Event of Default hereunder, the entire Principal Amount of
this Note together with any accrued but unpaid interest shall automatically
become due and payable. The failure of the Lender to exercise any of
its rights hereunder in any particular instance shall not constitute a waiver of
the same or of any other right in that or any subsequent instance with respect
to the Lender or any subsequent holder. The Lender need not provide
and the Borrower hereby waives any presentment, demand, protest or other notice
of any kind, and the Lender may immediately and without expiration of any grace
period enforce any and all of its rights and remedies hereunder and all other
remedies available to it under applicable law.
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Section
7. Notices. Any
and all notices, requests, documents or other communications or deliveries
required or permitted to be given or delivered hereunder shall be delivered in
accordance with the notice provisions of the Securities Purchase
Agreement.
Section
8. Usury. It
is expressly agreed and provided that the total liability of the Company under
the Loan Documents for payments in the nature of interest shall not exceed the
maximum lawful rate authorized under applicable law (the “Maximum Rate”), and,
without limiting the foregoing, in no event shall any rate of interest or
default interest, or both of them, when aggregated with any other sums in the
nature of interest that the Company may be obligated to pay under the Loan
Documents exceed such Maximum Rate. It is agreed that if the maximum
contract rate of interest allowed by law and applicable to the Loan Documents is
increased or decreased by statute or any official governmental action subsequent
to the date hereof, the new maximum contract rate of interest allowed by law
will be the Maximum Rate applicable to the Loan Documents from the effective
date forward, unless such application is precluded by applicable
law. If under any circumstances whatsoever, interest in excess of the
Maximum Rate is paid by the Company to Lender with respect to indebtedness
evidenced by the Loan Documents, such excess shall be applied by Lender to the
unpaid principal balance of any such indebtedness or be refunded to the Company,
the manner of handling such excess to be at Lender’s election.
Section
9. Governing Law;
Forum. This Note and the provisions hereof are to be construed
according to and are governed by the laws of the State of New York, without
regard to principles of conflicts of laws thereof. The Company
submits to the personal jurisdiction of and agrees that all proceedings relating
hereto shall be brought in federal or state courts located within the State of
New York.
Section 10. Successors and
Assigns. Subject to applicable securities laws, this Note and
the rights and obligations evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the successors and assigns of
Lender.
Section 11. Amendment. This
Note may be modified or amended or the provisions hereof waived only with the
written consent of the Lender and the Company.
Section 12. Severability. Wherever
possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Note.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
11
IN
WITNESS WHEREOF, the Borrower has caused this Convertible Promissory Note to be
duly executed by a duly authorized officer as of the date first above
indicated.
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PLASTINUM
POLYMER TECHNOLOGIES CORP.
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By:
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Name: Jacques
Mot
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Title: President
and Chief Executive
Officer
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12
ANNEX
A
NOTICE OF
CONVERSION
To Be
Executed by the Lender
in Order
to Convert Promissory Note
The
undersigned Lender hereby elects to convert $__________ principal and $_____
interest currently outstanding and owed under the Convertible Promissory Note
issued to Richard von
Tscharner at a Conversion Price of $___ (the “Note”)
and to purchase ___________ shares of Common Stock of Plastinum Polymer Technologies Corp.
issuable upon conversion of such Note, and requests that certificates for
such securities shall be issued in the name of:
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(please
print or type name and address)
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(please
insert social security or other identifying number)
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and
be delivered as follows:
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please
print or type name and address)
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(please
insert social security or other identifying number)
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Lender Name:
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By:
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Name:
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Title:
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Conversion Date:
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13
EXHIBIT
B
FORM OF
WARRANT
PLASTINUM
POLYMER TECHNOLOGIES CORP.
WARRANT
January
19, 2010
THIS
WARRANT, AND ALL SHARES OF STOCK ISSUABLE UNDER THIS WARRANT, HAVE BEEN AND WILL
BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). SUCH
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE
STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
This
Warrant is issued pursuant to the Securities Purchase Agreement dated of even
date herewith between Plastinum Polymer Technologies Corp., a Delaware
corporation (the “Company”), and
Richard von Tscharner, a natural person (the “Securities Purchase
Agreement”). This Warrant is entitled to certain registration
rights pursuant to Section 4 of the Securities Purchase
Agreement. The number of shares issuable upon exercise of this
Warrant shall be subject to adjustment in accordance with the terms
hereof.
THIS
CERTIFIES THAT, for value received, RICHARD VON TSCHARNER, a
natural person (the "Investor", “Lender” or the “Holder”), or his
permitted assigns is entitled, subject to the terms and conditions of this
Warrant, at any time following the Effective Date and before 5:30 P.M. New York
City time on the Expiration Date, to purchase from the Company, 3,620,000 shares of Common
Stock (such shares and all other shares issued or issuable pursuant to this
Warrant referred to hereinafter as "Warrant Stock"). The
initial "Purchase
Price" per share shall be equal to $0.20 for an aggregate
Purchase Price for all Warrant Stock equal to $724,000.
1. DEFINITIONS: As used in this
Warrant, the following terms shall have the following respective
meanings:
“Affiliate” when used
with respect to any Person, shall mean (a) any other Person which, directly
or indirectly, controls or is controlled by or is under common control with such
Person, and (b) any executive officer or director of such Person and any
executive officer, director or general partner of the other Person which
controls such Person. For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlling", "controlled by"
and "under common control with"), with respect to any Person, shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
“Common Stock” shall
mean the common stock, $.01 par value per share, of the
Company.
14
“Effective Date" shall
mean the date first written above.
"Expiration Date"
shall mean the date that is the three (3) year anniversary of the Effective
Date.
"Fair Market Value" of
a share of Warrant Stock as of a particular date shall mean:
(a) If
traded on a securities exchange or a NASDAQ Market, the Fair Market Value shall
be deemed to be the average of the closing price of the Warrant Stock on such
exchange or market over the five (5) trading days ending on the day immediately
prior to the applicable date of valuation;
(b) If
actively traded over-the-counter, the Fair Market Value shall be deemed to be
the average of the closing bid prices over the five (5) trading days ending on
the day immediately prior to the applicable date of valuation; and
(c) If
there is no active public market, the Fair Market Value shall be the value
thereof, as agreed upon by the Company and the Holder; provided, however, that if the
Company and the Holder cannot agree on such value, such value shall be
determined by an independent valuation firm experienced in valuing businesses
such as the Company and jointly selected in good faith by the Company and the
Holder. Fees and expenses of the valuation firms shall be paid solely by the
Company.
"Holder" shall mean
the Investor, his successors or assigns.
"Person" shall mean
any individual, corporation, partnership, limited liability company, trust or
other entity or organization, including any governmental authority or political
subdivision thereof.
"Registered Holder"
shall mean any Holder in whose name this Warrant is registered upon the books
and records maintained by the Company.
"SEC" shall mean the
United States Securities and Exchange Commission.
"Warrant" shall mean
this Warrant and any warrant delivered in substitution or exchange therefor as
provided herein.
2.
EXERCISE OF WARRANT.
2.1 Payment. Subject
to compliance with the terms and conditions of this Warrant and applicable
securities laws, this Warrant may be exercised, in whole or in part at any time
or from time to time, from and after the Effective Date and on or before the
Expiration Date by delivery (including, without limitation, delivery by
facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"),
duly executed by the Holder, to the Company at its then principal office, and as
soon as practicable after such date, surrendering:
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(a) this
Warrant at the principal office of the Company, and
(b) payment
in cash, by check or by wire transfer of an amount equal to the product obtained
by multiplying the number of shares of Warrant Stock being purchased upon such
exercise by the then effective Purchase Price (the "Exercise
Amount").
2.2 Net Issue
Exercise. In lieu of the payment methods set forth in Section
2.1(b) above, the Holder may elect to exchange all or some of the Warrant for
shares of Warrant Stock equal to the value of the amount of the Warrant being
exchanged on the date of exchange. If the Holder elects to exchange this Warrant
as provided in this Section 2.2, the Holder shall tender to the Company the
Warrant for the amount being exchanged, along with written notice of the
Holder's election to exchange some or all of the Warrant, and the Company shall
issue to the Holder the number of shares of the Warrant Stock computed using the
following formula:
X = Y (A-B)
A
Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock (as adjusted to the date of such
calculation).
All
references herein to an "exercise" of the Warrant shall include an exchange
pursuant to this Section 2.2.
2.3 "Easy Sale"
Exercise In lieu of the payment methods set forth in Section
2.1(b) above, when permitted by law and applicable regulations (including
exchange, NASDAQ and Financial Industry Regulatory Authority (“FINRA”) rules and
including that all shares so issued will be deemed to be fully paid,
non-assessable and properly listed or admitted for trading), the Holder may pay
the Purchase Price through a "same day sale" commitment from the Holder (and if
applicable a broker-dealer that is a member of FINRA (a “FINRA Dealer”)),
whereby the Holder irrevocably elects to exercise this Warrant and to sell a
portion of the shares so purchased to pay for the Purchase Price and the Holder
(or, if applicable, the FINRA Dealer) commits upon sale (or, in the case of the
FINRA Dealer, upon receipt) of such shares to forward the Purchase Price
directly to the Company.
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2.4 Stock Certificates;
Fractional Shares. As soon as practicable on or after any date
of exercise of this Warrant pursuant to this Section 2, the Company shall issue
and deliver to the Person or Persons entitled to receive the same a certificate
or certificates for the number of whole shares of Warrant Stock issuable upon
such exercise, together with cash in lieu of any fraction of a share equal to
such fraction of the current Fair Market Value of one whole share of Warrant
Stock as of the date of exercise of this Warrant. No fractional shares or scrip
representing fractional shares shall be issued upon an exercise of this
Warrant.
2.5 Partial Exercise; Effective
Date of Exercise. In case of any partial exercise of this
Warrant, the Company shall cancel this Warrant upon surrender hereof and shall
execute and deliver a new Warrant of like tenor and date for the balance of the
shares of Warrant Stock purchasable hereunder. This Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date of
its surrender for exercise as provided above. The Person entitled to receive the
shares of Warrant Stock issuable upon exercise of this Warrant shall be treated
for all purposes as the holder of record of such shares as of the close of
business on the date the Holder is deemed to have exercised this
Warrant.
2.6 Purchase Price
Adjustment.
(a) If
the Company shall effect a subdivision of the outstanding Common Stock, the
Purchase Price then in effect immediately before such subdivision shall be
proportionately decreased. If the Company shall combine the
outstanding shares of Common Stock, the Purchase Price then in effect
immediately before the combination shall be proportionately
increased. If the Company shall make or issue a dividend or other
distribution payable in securities, then and in each such event provision shall
be made so that the holder of this Warrant shall receive upon exercise hereof,
in addition to the number of shares of Common Stock receivable thereupon, the
amount of securities that the holder of this Warrant would have received had
this Warrant been exercised for Common Stock on the date of such event and had
such holder thereafter during the period from the date of such event to and
including the date of exercise of this Warrant retained such securities
receivable by such holder as aforesaid during such period, giving effect to all
adjustments called for during such period under this paragraph. If
the Company shall reclassify its Common Stock (including any reclassification in
connection with a consolidation or merger in which the Company is the surviving
corporation), then and in each such event provision shall be made so that such
holder shall receive upon exercise hereof the amount of such reclassified Common
Stock that such holder would have received had this Warrant been exercised for
Common Stock immediately prior to such reclassification and had such holder
thereafter, during the period from the date of such event to and including the
date of exercise of this Warrant, retained such reclassified Common Stock,
giving effect to all adjustments called for during such period under this
paragraph with respect to the rights of the holder of this Warrant.
(b) Whenever
the Purchase Price shall be adjusted as provided in this Section 2.6, the
Company shall forthwith provide notice of such adjustment to the holder of this
Warrant together with a statement, certified by the chief financial officer of
the Company, showing in detail the facts requiring such adjustment and the
Purchase Price that shall be in effect after such
adjustment. Notwithstanding the foregoing, no adjustment in the
Purchase Price shall be required unless such adjustment would require a change
of at least 1% in such Purchase Price; provided, however, that any
adjustments which by reason of this paragraph (b) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment.
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(c) In
case of any consolidation or merger of the Company with or into another
corporation or the conveyance of all or substantially all of the assets of the
Company to another corporation, this Warrant shall thereafter be exercisable (to
the extent such exercise is permitted hereunder) into the number of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock of the Company deliverable upon exercise of this Warrant would
have been entitled upon such consolidation, merger or conveyance; and, in any
such case, appropriate adjustment shall be made in the application of the
provisions herein set forth with respect to the rights and interest thereafter
of the holder of this Warrant, to the end that the provisions set forth herein
shall be thereafter applicable, as nearly as reasonably may be, in relation to
any shares of stock or other property thereafter deliverable upon the exercise
of the this Warrant.
3. VALID ISSUANCE;
TAXES. All shares of Warrant Stock issued upon the exercise of
this Warrant shall be validly issued, fully paid and non-assessable; provided
that the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for shares of Warrant Stock in any
name other than that of the Registered Holder of this Warrant, and in such case
the Company shall not be required to issue or deliver any stock certificate or
security until such tax or other charge has been paid, or it has been
established to the Company's reasonable satisfaction that no tax or other charge
is due.
4. LOSS OR MUTILATION. Upon
receipt of evidence reasonably satisfactory to the Company of the ownership of
and the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to it, and (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Company shall execute and deliver in lieu
thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated
Warrant.
5. RESERVATION OF WARRANT STOCK.
The Company hereby covenants that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant such number of shares of
Warrant Stock, Common Stock or other shares of capital stock of the Company as
are from time to time issuable upon exercise of this Warrant and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation to
provide sufficient reserves of shares of Warrant Stock issuable upon exercise of
this Warrant. All such shares shall be duly authorized, and when issued upon
such exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except
encumbrances or restrictions arising under federal or state securities laws.
Issuance of this Warrant shall constitute full authority to the Company's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Warrant Stock upon
the exercise of this Warrant.
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6. RESTRICTIONS ON TRANSFER. The
Holder, by acceptance hereof, agrees that, absent an effective registration
statement filed with the SEC under the Act covering the disposition or sale of
this Warrant or the Warrant Stock issued or issuable upon exercise hereof, as
the case may be, and registration or qualification under applicable state
securities laws, such Holder will not sell, transfer, pledge, or hypothecate any
portion or all of this Warrant or the Warrant Stock, as the case may be, unless
either (a) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to the Company, to the effect that such registration is
not required in connection with such disposition or (b) the sale of such
securities is made pursuant to Rule 144 under the Act.
7. NOTICE. Any notices
required or permitted to be given under the terms of this Warrant shall be in
writing and shall be deemed sufficient upon delivery, when delivered personally
or by overnight courier, in each case addressed to a party. The addresses
for such communications shall be:
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If
to the Holder:
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Richard
von Tscharner
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87
Route de Suisse
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Coppet
1296
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Switzerland
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If
to the Company:
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Plastinum
Polymer Technologies Corp.
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10100
Santa Monica Blvd., Suite 300
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Los
Angeles, California 90067
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With
a copy to (which shall not constitute notice):
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Westerman
Ball Ederer Miller & Sharfstein, LLP
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1201
RXR Plaza
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Uniondale,
New York 11556
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Attn:
Alan C. Ederer, Esq.
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8. HEADINGS; SECTION
REFERENCE. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof. All Section references herein are references, to Sections of
this Warrant unless specified otherwise.
9. LAW GOVERNING. This
Warant and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of New York, without giving effect to
principles of conflicts of law. Each of the parties hereto submits to
the personal jurisdiction of and each agrees that all proceedings relating
hereto shall be brought in federal or state courts located within the State of
New York. In any action, lawsuit or proceeding brought to enforce or
interpret the provisions of this Warrant and/or arising out of or relating to
any dispute between the parties, the prevailing party with respect to each
specific issue in a matter shall be entitled to recover all of his or its costs
and expenses relating to such issue (including without limitation, reasonable
attorney’s fees and disbursements) in addition to any other relief to which such
party may be entitled..
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10. NO IMPAIRMENT. The Company
will not, by amendment of its Certificate of Incorporation or bylaws, or through
reorganization, consolidation, merger, dissolution, issue or sale of securities,
sale of assets 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 Registered Holder of this Warrant against impairment. Without
limiting the generality of the foregoing, the Company: (a) will not increase the
par value of any shares of stock issuable upon the exercise of this Warrant
above the amount payable therefor upon such exercise and (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Warrant Stock upon
exercise of this Warrant.
11. SEVERABILITY. If any term,
provision, covenant or restriction of this Warrant is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Warrant shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
12. COUNTERPARTS. For the
convenience of the parties, any number of counterparts of this Warrant may be
executed by the parties hereto and each such executed counterpart shall be, and
shall be deemed to be, an original instrument.
13. NO INCONSISTENT AGREEMENTS.
The Company will not on or after the date of this Warrant enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holder or otherwise conflicts with the provisions
hereof.
14. SATURDAYS, SUNDAYS AND
HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or legal
holiday, the Expiration Date shall automatically be extended until 5:30 P.M. the
next business day.
15. FACSIMILE SIGNATURE. In
the event that any signature is delivered by facsimile transmission, PDF,
electronic signature or other similar electronic means, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such signature
page were an original thereof.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the
undersigned duly authorized representative of the Company has executed this
Warrant as of the day and date first written above.
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PLASTINUM
POLYMER TECHNOLOGIES CORP.
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By:
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Name: Jacques
Mot
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Title:
President and Chief Executive
Officer
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EXHIBIT
1
NOTICE
OF EXERCISE
(To
be executed upon exercise of Warrant)
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate of Plastinum Polymer Technologies
Corp. for ___ shares of Warrant Stock:
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1.
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Tenders
herewith payment of the exercise price in full in the form of cash or a
certified or official bank check in same-day funds in the amount of
$_______ for __________ such
securities.
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2.
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Elects
the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and
accordingly requests delivery of a net of _________ of such securities,
according to the following
calculation:
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X =
Y
(A-B)
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( )=
( )
[( ) -
( )]
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A (_______)
Where:
X = the
number of shares of Warrant Stock to be issued to the Holder;
Y = the
total number of shares of Warrant Stock as to which this Warrant is being
exercised;
A = the
Fair Market Value of one share of the Warrant Stock; and
B = the
Purchase Price of one share of Warrant Stock.
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3.
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Elects
the Easy Sale Exercise option pursuant to Section 2.3 of the Warrant, and
accordingly requests delivery of a net of ________ of such securities to
the brokerage firm identified below and attaches the agreement of said
firm to pay to the Company out of the proceeds of sale the purchase price
of the Warrant Shares.
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Unless
Easy Sale Exercise is elected above, in which case the Warrant Shares shall be
issued to the Warrant Holder’s account at said brokerage firm, please issue a
certificate or certificates for such securities in the name of, and pay any cash
for any fractional share to (please print name, address and social security
number):
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Date: ______________________________________
Note: The
above signature should correspond exactly with the name on the first page of
this Warrant Certificate or with the name of the assignee appearing in the
assignment form below.
If said
number of shares shall not be all the shares purchasable under the within
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the shares purchasable thereunder
rounded up to the next higher whole number of shares.
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