Attached files
file | filename |
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8-K - 6D Global Technologies, Inc | v205629_8k.htm |
EX-4.6 - 6D Global Technologies, Inc | v205629_ex4-6.htm |
EX-10.16 - 6D Global Technologies, Inc | v205629_ex10-16.htm |
EX-10.15 - 6D Global Technologies, Inc | v205629_ex10-15.htm |
THESE
SECURITIES AND THE COMMON STOCK THAT THE HOLDER SHALL RECEIVE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) IN ACCORDANCE WITH REGULATION S
(RULES 901 THROUGH 905), (ii) PURSUANT TO A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT THAT HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE
SECURITIES, OR (iii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION
AVAILABLE UNDER THE SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING
OBTAINED THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF
THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES
LAW. ANY HEDGING TRANSACTION INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
Warrant
Holder: _____________
Dated: __________,
2010
For
the Purchase of ___________ Shares of Common Stock
|
No.
SA-____
|
WARRANT
FOR THE PURCHASE OF
SHARES
OF COMMON STOCK OF
CLEANTECH
INNOVATIONS, INC.
Expiring
Five Years from the Date Hereof
FOR VALUE
RECEIVED, CleanTech Innovations, Inc. (“Company”), hereby certifies that the
Warrant Holder specified above, or its, his or her registered assigns
(“Registered Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company on or before the fifth anniversary of the date hereof,
that number of shares of Common Stock, $.00001 par value, of the Company
(“Common Stock”) set forth above, at a purchase price equal to $4.00 per share
(as may be adjusted as provided below) upon the terms and conditions set forth
herein. The number of shares of Common Stock purchasable upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the “Warrant Shares” and the “Exercise Price,”
respectively.
1. Registration of Transfers
and Exchanges.
(i) 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
duly completed and signed, to the Transfer Agent or to the
Company. Upon any such registration or transfer, a new warrant to
purchase Common Stock, in substantially the form of this 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 of such transferee of all of
the rights and obligations of a holder of a Warrant.
(ii) This
Warrant is exchangeable, upon the surrender hereof by the Holder to the office
of the Company for one or more New Warrants, evidencing in the aggregate the
right to purchase the number of Warrant Shares that may then be purchased
hereunder. Any such New Warrant will be dated the date of such
exchange.
2. Exercise.
(i) Procedure for
Exercise. Subject to the conditions and terms set forth
herein, this Warrant may be exercised by the Registered Holder (“Conversion
Right”), in whole or in part, by the surrender of this Warrant (with the Notice
of Exercise Form attached hereto as Exhibit 1 duly executed by such Registered
Holder) at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of an amount equal to the then applicable Exercise
Price multiplied by the number of Warrant Shares then being purchased upon such
exercise.
(ii) Exercise of Conversion
Right. Subject to the terms and conditions set forth herein,
the Conversion Right may be exercised by the Holder on any business day by
delivering to the Company the Warrant with a duly executed Notice of Exercise
Form attached hereto as Exhibit 1 with the conversion section completed by
specifying the total number of shares of Common Stock the Registered Holder will
purchase pursuant to such conversion.
(iii) Procedure for Cashless
Exercise. If the Common Stock is registered under Section 12
of the Securities Exchange Act of 1934, as amended, the Registered Holder may
elect to pay all or part of the Exercise Price by surrendering shares of Common
Stock to the Company, including by allowing the Company to deduct from the
number of Warrant Shares deliverable upon exercise of this Warrant, such number
of such shares that have an aggregate Fair Market Value (defined below),
determined as of the average of the Last Sale Price (defined below) of the
Common Stock for the 20 consecutive trading days immediately preceding the date
of exercise of this Warrant, equal to the aggregate Exercise Price. (By way of
example, if the Registered Holder exercises 50,000 warrants at an exercise price
of $10.00 and the 20-day average price is $15.00, then Warrant Shares
deliverable on exercise: 50,000; Aggregate Exercise Price: $500,000; Number of
shares deliverable to Company on Cashless Exercise: $500,000/$15 or 33,334; Net
Warrant Shares delivered to Registered Holder on Cashless Exercise: 50,000 -
33,334 = 16,666 shares.) In the event that the Warrant Holder elects to utilize
the “cashless exercise” procedure contained in this Section 2(iii), this Warrant
is exercisable upon surrender of this Warrant to the Company together with a
duly completed Notice of Exercise in the form attached hereto and surrender of
that number of shares of Common Stock equal to the aggregate Exercise Price
determined in accordance with this Section 2(iii)(a) or (b). “Fair Market Value”
per share of Common Stock on any relevant date shall be determined in accordance
with the following provisions:
2
(a) If
the Common Stock is at the time traded on the OTC Bulletin Board or other
electronic quotation service, then the Fair Market Value shall be the average of
the last sale price per share of the Common Stock for the 20 consecutive trading
days preceding the date of exercise of this Warrant; or
(b) If
the Common Stock is at the time listed on any Exchange (as defined below), the
Fair Market Value shall be the average of the last sale price per share of the
Common Stock for the 20 consecutive trading days preceding the date of exercise
of this Warrant on the Exchange determined to be the primary market for the
Common Stock. “Exchange” shall mean any of the NASDAQ markets, the New York
Stock Exchange, NYSE Amex Equities or any organization or association defined as
a national exchange by the Securities and Exchange Commission.
“Last
Sale Price” shall mean (X) if the Common Stock is listed on an Exchange or
quoted on the NASDAQ markets or the OTC Bulletin Board, the last sale price of
the Common Stock in the principal trading market for the Common Stock as
reported by the Exchange, NASDAQ or the OTC Bulletin Board, as the case may be;
(Y) if the Common Stock is not listed on an Exchange or quoted on the NASDAQ
markets or the OTC Bulletin Board, but is traded in the over-the-counter market,
the closing bid price for the Common Stock on the last trading day preceding the
date in question for which such quotations are reported by the Pink Sheets, LLC
or similar publisher of such quotations; and (Z) if the fair market value of the
Common Stock cannot be determined pursuant to clause (X) or (Y) above, such
price as the Board of Directors of the Company shall in good faith determine at
their sole discretion.
(iv) Date of
Exercise. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company. At
such time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise shall be deemed to have
become the holder or holders of record of the Warrant Shares represented by such
certificates.
(v) Issuance of
Certificate. As soon as practicable after the exercise of the
purchase right represented by this Warrant, the Company at its expense will
cause to be issued in the name of, and delivered to, the Registered Holder, or,
subject to the terms and conditions hereof, to such other individual or entity
as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct:
(a) a
certificate or certificates for the number of full shares of Warrant Shares to
which such Registered Holder shall be entitled upon such exercise plus, in lieu
of any fractional share to which such Registered Holder would otherwise be
entitled, cash in an amount determined pursuant to Section 4 hereof,
and
(b) in
case such exercise is in part only, a new warrant or warrants (dated the date
hereof) of like tenor, stating on the face or faces thereof the number of shares
currently stated on the face of this Warrant minus the number of such shares
purchased by the Registered Holder upon such exercise as provided in subsection
2(i) above.
3
(vi) Exercise of
Warrant. The Warrant may be exercised in whole or from time to
time in part on or prior to the fifth anniversary of the date hereof, as first
set forth above.
3. Adjustments.
(i)
Split, Subdivision or
Combination of Shares. If, at any time while this Warrant
remains outstanding and unexpired, the outstanding shares of the Company’s
Common Stock shall be subdivided or split into a greater number of shares, or a
dividend in Common Stock shall be paid in respect of Common Stock, the Exercise
Price in effect immediately prior to such subdivision or at the record date of
such dividend shall, simultaneously with the effectiveness of such subdivision
or split or immediately after the record date of such dividend (as the case may
be), be decreased proportionately. If the outstanding shares of
Common Stock shall be combined or reverse-split into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination or reverse
split shall, simultaneously with the effectiveness of such combination or
reverse split, be increased proportionately. When any adjustment is
required to be made in the Exercise Price, the number of shares of Warrant
Shares purchasable upon the exercise of this Warrant shall be changed to the
number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such
adjustment.
(ii) Reclassification,
Reorganization, Consolidation or Merger. In the case of any
reclassification of the Common Stock (other than a change in par value or a
subdivision or combination as provided for in subsection 3(i) above), or any
reorganization, consolidation or merger of the Company with or into another
corporation (other than a merger or reorganization with respect to which the
Company is the continuing corporation and which does not result in any
reclassification of the Common Stock), or a transfer of all or substantially all
of the assets of the Company, or the payment of a liquidating distribution then,
as part of any such reorganization, reclassification, consolidation, merger,
sale or liquidating distribution, lawful provision shall be made so that the
Registered Holder of this Warrant shall have the right thereafter to receive
upon the exercise hereof, the kind and amount of shares of stock or other
securities or property which such Registered Holder would have been entitled to
receive if, immediately prior to any such reorganization, reclassification,
consolidation, merger, sale or liquidating distribution, as the case may be,
such Registered Holder had held the number of shares of Common Stock that were
then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the Registered Holder of
this Warrant such that the provisions set forth in this Section 3 (including
provisions with respect to the Exercise Price) shall thereafter be applicable,
as nearly as is reasonably practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the exercise of this
Warrant.
4
(iii) Price
Adjustment. No adjustment in the per share Exercise Price
shall be required unless such adjustment would require an increase or decrease
in the Exercise Price of at least $0.01; provided, however, that any adjustments
that by reason of this paragraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 3 shall be made to the nearest cent, with $0.005
being rounded down to the nearest cent, or to the nearest 1/100th of a share, as
the case may be.
(iv) No
Impairment. The Company will not, by amendment of its Articles
of Incorporation 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 3 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of the
Registered Holder of this Warrant to adjustments in the Exercise
Price.
(v) Notice of
Adjustment. Upon any adjustment of the Exercise Price or
extension of the Warrant exercise period, the Company shall forthwith give
written notice thereto to the Registered Holder of this Warrant describing the
event requiring the adjustment, stating the adjusted Exercise Price and the
adjusted number of shares purchasable upon the exercise hereof resulting from
such event, and setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
4. Fractional
Shares. The Company shall not be required to issue fractions
of shares of Common Stock upon exercise. If any fractions of a share
would, but for this Section 4, be issuable upon any exercise, in lieu of such
fractional share the Company shall round up or down to the nearest whole
number.
5. Limitation on
Sales. Each holder of this Warrant acknowledges that this
Warrant and the Warrant Shares, as of the date of original issuance of this
Warrant, have not been registered under the Securities Act of 1933, as amended
(the “Act”), and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon
its exercise in the absence of (i) an effective registration statement under the
Act as to this Warrant or such Warrant Shares or (ii) an opinion of counsel,
reasonably acceptable to the Company and its counsel, that such registration and
qualification are not required. The Warrant Shares issued upon
exercise thereof shall be imprinted with a legend in substantially the following
form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) IN
ACCORDANCE WITH REGULATION S (RULES 901 THROUGH 905, AND PRELIMINARY NOTES),
(ii) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT THAT HAS
BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (iii)
PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE
SECURITIES ACT BUT ONLY UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT THE PROPOSED
DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT
AS WELL AS ANY APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAW. ANY HEDGING
TRANSACTION INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT.”
5
6. Notices of Record
Date. In case: (i) the Company shall take a record of the
holders of its Common Stock (or other stock or securities at the time
deliverable upon the exercise of this Warrant) for the purpose of entitling or
enabling them to receive any dividend or other distribution, or to receive any
right to subscribe for or purchase any shares of any class or any other
securities, or to receive any other right, or (ii) of any capital reorganization
of the Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the surviving entity), or
any transfer of all or substantially all of the assets of the Company, or (iii)
of the voluntary or involuntary dissolution, liquidation or winding-up of the
Company, then, and in each such case, the Company will mail or cause to be
mailed to the Registered Holder of this Warrant a notice specifying, as the case
may be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten
(10) days prior to the record date or effective date for the event specified in
such notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
7. Reservation of
Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Common Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. So
long as this Warrant remains outstanding, the Company shall maintain the listing
of the shares of Common Stock to be issued upon exercise on each national
securities exchange on which Common Stock is listed (on the Nasdaq
Over-The-Counter service if the Common Stock is then quoted on such
service/bulletin board).
8. Replacement of
Warrants. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
6
9. Transfers,
etc.
(i) Warrant
Register. The Company will maintain a register containing the
names and addresses of the Registered Holders of this Warrant. Any
Registered Holder may change its, his or her address as shown on the warrant
register by written notice to the Company requesting such change.
(ii) Registered
Holder. Until any transfer of this Warrant is made in the
warrant register, the Company may treat the Registered Holder of this Warrant as
the absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
10. No Rights as
Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
11. Successors. The
rights and obligations of the parties to this Warrant will inure to the benefit
of and be binding upon the Company and any transferees of Warrant
Holder.
12. Change or
Waiver. Any term of this Warrant may be changed or waived only
by an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
13. Headings. The
headings in this Warrant are for purposes of reference only and shall not limit
or otherwise affect the meaning of any provision of this Warrant.
14. Governing
Law. This Warrant shall be governed by and construed in
accordance with the laws of the state of New York, without giving effect to
principles of conflicts of laws.
15. Jurisdiction and
Venue. The Company (i) agrees that any legal suit, action or
proceeding arising out of or relating to this Warrant shall be instituted
exclusively in any state court located in New York, New York or in the United
States District Court for the Southern District of New York, (ii) waives any
objection to the venue of any such suit, action or proceeding and the right to
assert that such forum is not a convenient forum for such suit, action or
proceeding, and (iii) irrevocably consents to the jurisdiction of any state
court located in New York, New York and the United States District Court for the
Southern District of New York in any such suit, action or proceeding, and the
Company further agrees to accept and acknowledge service or any and all process
which may be served in any such suit, action or proceeding in any state court
located in New York, New York or in the United States District Court for the
Southern District of New York and agrees that service of process upon it mailed
by certified mail to its address shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding.
16. Mailing of Notices,
etc. All notices and other communications under this Warrant
(except payment) shall be in writing and shall be sufficiently given if sent to
the Registered Holder or the Company, as the case may be, by hand delivery,
private overnight courier, with acknowledgment
of receipt, or by registered or certified mail, return receipt requested postage
prepaid, as follows:
7
Registered
Holder:
To
Registered Holder’s address as provided on the Subscription Agreement or
otherwise in the Company’s Records.
The
Company:
To the
Company’s Principal Executive Offices
Attention:
Chief Executive Officer
(with a
copy, which shall not constitute notice to):
The
Newman Law Firm, PLLC
44 Wall
Street, 20th
Floor
New York,
NY 10005
or to
such other address as any of them, by notice to the others may designate from
time to time. Time shall be counted to, or from, as the case may be,
the date of delivery in person or by overnight courier or five (5) business days
after mailing.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officers as of the date first above written.
CLEANTECH
INNOVATIONS, INC.
|
||
By:
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||
Name:
|
Bei
Lu
|
|
Title:
|
Chief
Executive Officer
|
8
EXHIBIT
1
NOTICE OF
EXERCISE
Date:
_____________________________________
TO: CleanTech
Innovations, Inc.
C
District, Maoshan Industry Park,
Tieling
Economic Development Zone,
Tieling,
Liaoning, China
Attn: Ms.
Bei Lu, Chief Executive Officer
(Check
one)
¨ 1. The
undersigned hereby elects to purchase ____________ shares of the Common Stock of
CleanTech Innovations, Inc. pursuant to terms of the attached Warrant, and
tenders herewith payment of $_________ (at the rate of $_____ per share of
Common Stock) in payment of the Exercise Price(s) pursuant thereto, together
with all applicable transfer taxes, if any.
¨ 1. The
undersigned hereby elects to surrender shares of Common Stock or Warrant Shares
pursuant to the cashless exercise procedure provided for in Section 2(iii) of the Warrant, and indicates below the number of
shares of Common Stock or Warrant Shares to be surrendered and provides the
calculation (pursuant to Section 2(iii)(a) or (b) of the Warrant) for the number of shares
to be surrendered:
Number of Shares to be Surrendered:
___________________
Calculation Pursuant to Section 2(iii):
___________________
2. Please
issue a certificate or certificates representing said shares of the Common Stock
in the name of the undersigned, or the undersigned’s designee, and delivered to
the undersigned, or the undersigned’s designee, at the address specified
below.
3. The
undersigned is not a U.S. person and the attached Warrant is not being exercised
on behalf of a U.S. person.
4. The
undersigned agrees that the terms and conditions of the Subscription Agreement
between the Company and the Undersign apply to the shares of Common Stock
issuable upon the exercise of this Warrant.
[Signature
Page Follows]
Signature
of Registered Holder
|
|
Print
Name:
|
Notice: The
signature to this form must correspond with the name as written upon the face of
the within Warrant in every particular without alteration or enlargement or any
change whatsoever.
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name:
|
|
(Print
in Block Letters)
|
|
Address:
|
2
EXHIBIT
2
[To be
completed and signed only upon transfer of Warrant]
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________ the right represented by the within Warrant to
purchase ________________ shares of Common Stock of CleanTech Innovations, Inc.
to which the within Warrant relates and appoints _____________________________
attorney to transfer said right on the books of CleanTech Innovations, Inc. with
full power of substitution in the premises.
Dated:
______________,
____
(Signature
must conform in all respects to name
of
holder as specified on the face of the Warrant)
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Address
of Transferee
|
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In
the presence of:
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