Attached files
file | filename |
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8-K - FORM 8-K - FINJAN HOLDINGS, INC. | b85827e8vk.htm |
EX-4.1 - EX-4.1 - FINJAN HOLDINGS, INC. | b85827exv4w1.htm |
EX-4.4 - EX-4.4 - FINJAN HOLDINGS, INC. | b85827exv4w4.htm |
EX-4.2 - EX-4.2 - FINJAN HOLDINGS, INC. | b85827exv4w2.htm |
EX-10.2 - EX-10.2 - FINJAN HOLDINGS, INC. | b85827exv10w2.htm |
EX-10.4 - EX-10.4 - FINJAN HOLDINGS, INC. | b85827exv10w4.htm |
EX-10.1 - EX-10.1 - FINJAN HOLDINGS, INC. | b85827exv10w1.htm |
EX-10.3 - EX-10.3 - FINJAN HOLDINGS, INC. | b85827exv10w3.htm |
Exhibit 4.3
[FORM OF SERIES B WARRANT]
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER
(IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE
144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
CONVERTED ORGANICS INC.
Warrant To Purchase Common Stock
Series B Warrant No.:
Date of Issuance: April [ ], 2011 (Issuance Date)
Date of Issuance: April [ ], 2011 (Issuance Date)
Converted Organics Inc., a Delaware corporation (the Company), hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
[ ], the registered holder hereof or its permitted assigns (the Holder), is
entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price
(as defined below) then in effect, upon exercise of this Warrant to Purchase Common Stock
(including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement
hereof, the Warrant), at any time or times on or after the six (6) month and one (1) day
anniversary of the Issuance Date (the Initial Exercise Date), but not after 11:59 p.m., New York
time, on the Expiration Date (as defined below), [ ] (subject to adjustment as provided
herein) fully paid and non-assessable shares of Common Stock (as defined below) (the Warrant
Shares). Except as otherwise defined herein, capitalized terms in this Warrant shall have the
meanings set forth in Section 16. This Warrant is one of the Warrants to Purchase Common Stock (the
SPA Warrants) issued pursuant to Section 1 of that certain Securities Purchase Agreement, dated
as of April 1, 2011, by and among the Company and the investors (the Buyers) referred to therein
(the Securities Purchase Agreement).
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations
set forth in Section 1(f)), this Warrant may be exercised by the Holder on any day on or after the
Initial Exercise Date, in whole or in part, by delivery (whether via facsimile or otherwise) of a
written notice, in the form attached hereto as Exhibit A (the Exercise Notice), of the Holders
election to exercise this Warrant. Within one (1) Trading
Day following an exercise of this Warrant as aforesaid, the Holder shall deliver payment to
the Company of an amount equal to the Exercise Price in effect on the date of such exercise
multiplied by the number of Warrant Shares as to which this Warrant was so exercised (the
Aggregate Exercise Price) in cash or via wire transfer of immediately available funds if the
Holder did not notify the Company in such Exercise Notice that such exercise was made pursuant to a
Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required to deliver the
original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an
Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as
cancellation of the original of this Warrant and issuance of a new Warrant evidencing the right to
purchase the remaining number of Warrant Shares. Execution and delivery of an Exercise Notice for
all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original
of this Warrant after delivery of the Warrant Shares in accordance with the terms hereof. On or
before the first (1st) Trading Day following the date on which the Company has received
an Exercise Notice, the Company shall transmit by facsimile an acknowledgment of confirmation of
receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to the Holder
and the Companys transfer agent (the Transfer Agent). On or before the third (3rd)
Trading Day following the date on which the Company has received such Exercise Notice and received
the Aggregate Exercise Price if the Holder did not notify the Company in such Exercise Notice that
such exercise was made pursuant to a Cashless Exercise, the Company shall (X) provided that either
a registration statement for the resale by the Holder of the applicable Warrant Shares is effective
or the applicable Warrant Shares are otherwise eligible for resale pursuant to Rule 144 (as defined
in the Securities Purchase Agreement) and the Transfer Agent is participating in The Depository
Trust Company (DTC) Fast Automated Securities Transfer Program, upon the request of the Holder,
credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to
such exercise to the Holders or its designees balance account with DTC through its Deposit/
Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and deliver to the Holder or, at the Holders
instruction pursuant to the Exercise Notice, the Holders agent or designee, in each case, sent by
reputable overnight courier to the address as specified in the applicable Exercise Notice, a
certificate, registered in the Companys share register in the name of the Holder or its designee
(as indicated in the applicable Exercise Notice), for the number of shares of Common Stock to which
the Holder is entitled pursuant to such exercise, and to the extent the applicable Warrant Shares
have not been registered for resale by the Holder on an effective registration statement or are not
eligible for resale pursuant to Rule 144, the certificate shall include such restrictive legends as
required by Section 5 of the Securities Purchase Agreement. Upon delivery of an Exercise Notice,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the
Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such
Warrant Shares are credited to the Holders DTC account or the date of delivery of the certificates
evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in connection
with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by
this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired
upon an exercise, then, at the request of the Holder, the Company shall as soon as practicable and
in no event later than three (3) Business Days after any exercise and at its own expense, issue and
deliver to the Holder (or its designee) a new Warrant (in accordance with Section 7(d))
representing the right to purchase the number of Warrant Shares purchasable immediately prior to
such exercise under this Warrant, less the number of Warrant
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Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock
to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all
taxes and fees which may be payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant.
(b) Exercise Price. For purposes of this Warrant, Exercise Price means $0.4125, subject to adjustment as
provided herein.
(c) Companys Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, to issue to the Holder within
three (3) Trading Days after receipt of the applicable Exercise Notice and received the Aggregate
Exercise Price if the Holder did not notify the Company in such Exercise Notice that such exercise
was made pursuant to a Cashless Exercise, a certificate for the number of shares of Common Stock to
which the Holder is entitled and register such shares of Common Stock on the Companys share
register or to credit the Holders balance account with DTC for such number of shares of Common
Stock to which the Holder is entitled upon the Holders exercise of this Warrant (as the case may
be) (a Delivery Failure), then, in addition to all other remedies available to the Holder, the
Company shall pay in cash to the Holder on each day after such third (3rd) Trading Day
that the issuance of such shares of Common Stock is not timely effected an amount equal to 2% of
the product of (A) the aggregate number of shares of Common Stock not issued to the Holder on a
timely basis and to which the Holder is entitled and (B) the Closing Sale Price of the Common Stock
on the Trading Day immediately preceding the last possible date on which the Company could have
issued such shares of Common Stock to the Holder without violating Section 1(a). In addition to the
foregoing, if within three (3) Trading Days after the Companys receipt of the applicable Exercise
Notice, the Company shall fail to issue and deliver a certificate to the Holder and register such
shares of Common Stock on the Companys share register or credit the Holders balance account with
DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holders
exercise hereunder (as the case may be), and if on or after such third (3rd) Trading Day
the Holder (or any other Person in respect, or on behalf, of the Holder) purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of all or any portion of the number of shares of Common Stock, or a sale of a number of
shares of Common Stock equal to all or any portion of the number of shares of Common Stock,
issuable upon such exercise that the Holder so anticipated receiving from the Company, then, in
addition to all other remedies available to the Holder, the Company shall, within three (3)
Business Days after the Holders request and in the Holders discretion, either (i) pay cash to the
Holder in an amount equal to the Holders total purchase price (including brokerage commissions and
other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including,
without limitation, by any other Person in respect, or on behalf, of the Holder) (the Buy-In
Price), at which point the Companys obligation to so issue and deliver such certificate or credit
the Holders balance account with DTC for the number of shares of Common Stock to which the Holder
is entitled upon the Holders exercise hereunder (as the case may be) (and to issue such shares of
Common Stock) shall terminate, or (ii) promptly honor its obligation to so issue and deliver to the
Holder a certificate or certificates representing such shares of Common Stock or credit the
Holders balance account with DTC for the number of shares of Common Stock to which the Holder is
entitled upon the Holders exercise hereunder (as the case may be) and pay cash to the Holder in an
amount equal to the
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excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common
Stock multiplied by (B) the lowest Closing Sale Price of the Common Stock on any Trading Day during
the period commencing on the date of the applicable Exercise Notice and ending on the date of such
issuance and payment under this clause (ii).
(d) Cashless Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below),
if at the time of exercise hereof a Registration Statement (as defined in the Registration Rights
Agreement (as defined in the Securities Purchase Agreement)) is not effective (or the prospectus
contained therein is not available for use) for the resale by the Holder of all of the Warrant
Shares, then the Holder may, in its sole discretion, exercise this Warrant in whole or in part 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
the Net Number of shares of Common Stock 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.
B= as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the date of the applicable Exercise Notice if such Exercise
Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day
that is not a Trading Day or (2) both executed and delivered pursuant to Section
1(a) hereof on a Trading Day prior to the opening of regular trading hours (as
defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal
securities laws) on such Trading Day, (ii) the Bid Price of the Common Stock as of
the time of the Holders execution of the applicable Exercise Notice if such
Exercise Notice is executed during regular trading hours on a Trading Day and is
delivered within two (2) hours thereafter pursuant to Section 1(a) hereof or (iii)
the Closing Sale Price of the Common Stock on the date of the applicable Exercise
Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice
is both executed and delivered pursuant to Section 1(a) hereof after the close of
regular trading hours on such Trading Day.
C= the Exercise Price then in effect for the applicable Warrant
Shares at the time of such exercise.
(e) Disputes. In the case of a dispute as to the determination of the Exercise Price or the arithmetic
calculation of the number of Warrant Shares to be issued pursuant to the terms hereof, the Company
shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve
such dispute in accordance with Section 13.
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(f) Limitations on Exercises. Notwithstanding anything to the contrary contained in
this Warrant, this Warrant shall not be exercisable by the Holder hereof to the extent (but only to
the extent) that the Holder or any of its affiliates would beneficially own in excess of 4.9% (the
Maximum Percentage) of the Common Stock. To the extent the above limitation applies, the
determination of whether this Warrant shall be exercisable (vis-à-vis other convertible,
exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which
such securities shall be exercisable (as among all such securities owned by the Holder) shall,
subject to such Maximum Percentage limitation, be determined on the basis of the first submission
to the Company for conversion, exercise or exchange (as the case may be). No prior inability to
exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the
provisions of this paragraph with respect to any subsequent determination of exercisability. For
the purposes of this paragraph, beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of percentage ownership) shall be
determined in accordance with Section 13(d) of the 1934 Act (as defined in the Securities Purchase
Agreement) and the rules and regulations promulgated thereunder. The provisions of this paragraph
shall be implemented in a manner otherwise than in strict conformity with the terms of this
paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Maximum Percentage beneficial ownership limitation herein contained or to make
changes or supplements necessary or desirable to properly give effect to such Maximum Percentage
limitation. The limitations contained in this paragraph shall apply to a successor Holder of this
Warrant. The holders of Common Stock shall be third party beneficiaries of this paragraph and the
Company may not waive this paragraph without the consent of holders of a majority of its Common
Stock. For any reason at any time, upon the written or oral request of the Holder, the Company
shall within one (1) Business Day confirm orally and in writing to the Holder the number of shares
of Common Stock then outstanding, including by virtue of any prior conversion or exercise of
convertible or exercisable securities into Common Stock, including, without limitation, pursuant to
this Warrant or securities issued pursuant to the Securities Purchase Agreement.
(g) Insufficient Authorized Shares. From and after the date on which Shareholder Approval (as defined in the Securities Purchase
Agreement) is obtained, the Company shall at all times keep reserved for issuance under this
Warrant a number of shares of Common Stock as shall be necessary to satisfy the Companys
obligation to issue shares of Common Stock hereunder (without regard to any limitation otherwise
contained herein with respect to the number of shares of Common Stock that may be acquirable upon
exercise of this Warrant). If, notwithstanding the foregoing, and not in limitation thereof, at any
time from and after the date on which Shareholder Approval is obtained while any of the SPA
Warrants remain outstanding the Company does not have a sufficient number of authorized and
unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon exercise
of the SPA Warrants at least a number of shares of Common Stock equal to the number of shares of
Common Stock as shall from time to time be necessary to effect the exercise of all of the SPA
Warrants then outstanding (the Required Reserve Amount) (an Authorized Share Failure), then the
Company shall immediately take all action necessary to increase the Companys authorized shares of
Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount
for all the SPA Warrants then outstanding. Without limiting the generality of the foregoing
sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure,
but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure,
the
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Company shall hold a meeting of its stockholders for the approval of an increase in the number
of authorized shares of Common Stock. In connection with such meeting, the Company shall provide
each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders
approval of such increase in authorized shares of Common Stock and to cause its board of directors
to recommend to the stockholders that they approve such proposal.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price
and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 2.
(a) Stock Dividends and Splits. Without limiting any provision of Section 2(b) or Section 4, if the Company, at any time on
or after the date of the Securities Purchase Agreement, (i) pays a stock dividend on one or more
classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock
split, stock dividend, recapitalization or otherwise) one or more classes of its then outstanding
shares of Common Stock into a larger number of shares or (iii) combines (by combination, reverse
stock split or otherwise) one or more classes of its then 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 of which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this
paragraph shall become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to
clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date
of such subdivision or combination. If any event requiring an adjustment under this paragraph
occurs during the period that an Exercise Price is calculated hereunder, then the calculation of
such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the date of the Securities Purchase Agreement, the Company
issues or sells, or in accordance with this Section 2 is deemed to have issued or sold, any shares
of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for
the account of the Company, but excluding any Excluded Securities (as defined in the Securities
Purchase Agreement) issued or sold or deemed to have been issued or sold) for a consideration per
share (the New Issuance Price) less than a price equal to the Exercise Price in effect
immediately prior to such issue or sale or deemed issuance or sale (such Exercise Price then in
effect is referred to as the Applicable Price) (the foregoing a Dilutive Issuance), then
immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an
amount equal to the New Issuance Price. For all purposes of the foregoing (including, without
limitation, determining the adjusted Exercise Price and consideration per share under this Section
2(b)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants or sells any
Options and the lowest price per share for which one share of Common Stock is issuable upon
the exercise of any such Option or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option is less than the Applicable Price, then
such share of Common Stock shall be deemed to be outstanding
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and to have been issued and sold by the Company at the time of the granting or sale of
such Option for such price per share. For purposes of this Section 2(b)(i), the lowest
price per share for which one share of Common Stock is issuable upon the exercise of any
such Options or upon conversion, exercise or exchange of any Convertible Securities issuable
upon exercise of any such Option shall be equal to (1) the lower of (x) the sum of the
lowest amounts of consideration (if any) received or receivable by the Company with respect
to any one share of Common Stock upon the granting or sale of such Option, upon exercise of
such Option and upon conversion, exercise or exchange of any Convertible Security issuable
upon exercise of such Option and (y) the lowest exercise price set forth in such Option for
which one share of Common Stock is issuable upon the exercise of any such Options or upon
conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any
such Option minus (2) the sum of all amounts paid or payable to the holder of such Option
(or any other Person) upon the granting or sale of such Option, upon exercise of such Option
and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise
of such Option plus the value of any other consideration received or receivable by, or
benefit conferred on, the holder of such Option (or any other Person). Except as
contemplated below, no further adjustment of the Exercise Price shall be made upon the
actual issuance of such shares of Common Stock or of such Convertible Securities upon the
exercise of such Options or upon the actual issuance of such shares of Common Stock upon
conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or
sells any Convertible Securities and the lowest price per share for which one share of Common
Stock is issuable upon the conversion, exercise or exchange thereof is less than the
Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to
have been issued and sold by the Company at the time of the issuance or sale of such
Convertible Securities for such price per share. For the purposes of this Section 2(b)(ii),
the lowest price per share for which one share of Common Stock is issuable upon the
conversion, exercise or exchange thereof shall be equal to (1) the lower of (x) the sum of
the lowest amounts of consideration (if any) received or receivable by the Company with
respect to one share of Common Stock upon the issuance or sale of the Convertible Security
and upon conversion, exercise or exchange of such Convertible Security and (y) the lowest
conversion price set forth in such Convertible Security for which one share of Common Stock
is issuable upon conversion, exercise or exchange thereof minus (2) the sum of all amounts
paid or payable to the holder of such Convertible Security (or any other Person) upon the
issuance or sale of such Convertible Security plus the value of any other consideration
received or receivable by, or benefit conferred on, the holder of such Convertible Security
(or any other Person). Except as contemplated below, no further adjustment of the Exercise
Price shall be made upon the actual issuance of such shares of Common Stock upon conversion,
exercise or exchange of such Convertible Securities, and if any such issue or sale of such
Convertible Securities is made upon exercise of any Options for which adjustment of this
Warrant has been or is to be made pursuant to other provisions of this Section 2(b), except
as contemplated below, no further adjustment of the Exercise Price shall be made by reason of
such issue or sale.
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(iii) Change in Option Price or Rate of Conversion. If the purchase or exercise
price provided for in any Options, the additional consideration, if any, payable upon the
issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which
any Convertible Securities are convertible into or exercisable or exchangeable for shares of
Common Stock increases or decreases at any time, the Exercise Price in effect at the time of
such increase or decrease shall be adjusted to the Exercise Price which would have been in
effect at such time had such Options or Convertible Securities provided for such increased or
decreased purchase price, additional consideration or increased or decreased conversion rate,
as the case may be, at the time initially granted, issued or sold. For purposes of this
Section 2(b)(iii), if the terms of any Option or Convertible Security that was outstanding as
of the date of issuance of this Warrant are increased or decreased in the manner described in
the immediately preceding sentence, then such Option or Convertible Security and the shares
of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed
to have been issued as of the date of such increase or decrease. No adjustment pursuant to
this Section 2(b) shall be made if such adjustment would result in an increase of the
Exercise Price then in effect.
(iv) Calculation of Consideration Received. If any Option or Convertible
Security is issued in connection with the issuance or sale or deemed issuance or sale of any
other securities of the Company, together comprising one integrated transaction, (x) such
Option or Convertible Security (as applicable) will be deemed to have been issued for
consideration equal to the Black Scholes Consideration Value thereof and (y) the other
securities issued or sold or deemed to have been issued or sold in such integrated
transaction shall be deemed to have been issued for consideration equal to the difference of
(I) the aggregate consideration received by the Company minus (II) the Black Scholes
Consideration Value of each such Option or Convertible Security (as
applicable). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to
have been issued or sold for cash, the consideration received therefor will be deemed to be
the net amount of consideration received by the Company therefor. If any shares of Common
Stock, Options or Convertible Securities are issued or sold for a consideration other than
cash, the amount of such consideration received by the Company will be the fair value of such
consideration, except where such consideration consists of publicly traded securities, in
which case the amount of consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days
immediately preceding the date of receipt. If any shares of Common Stock, Options or
Convertible Securities are issued to the owners of the non-surviving entity in connection
with any merger in which the Company is the surviving entity, the amount of consideration
therefor will be deemed to be the fair value of such portion of the net assets and business
of the non-surviving entity as is attributable to such shares of Common Stock, Options or
Convertible Securities, as the case may be. The fair value of any consideration other than
cash or publicly traded securities will be determined jointly by the Company and the Holder.
If such parties are unable to reach agreement within ten (10) days after the occurrence of an
event requiring valuation (the Valuation Event), the fair value of such consideration will
be determined within five (5) Trading Days after the tenth (10th) day following
such Valuation Event by an independent, reputable appraiser jointly selected by the Company
and the Holder. The determination of
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such appraiser shall be final and binding upon all parties absent manifest error and the
fees and expenses of such appraiser shall be borne by the Company.
(v) Record Date. If the Company takes a record of the holders of shares of
Common Stock for the purpose of entitling them (A) to receive a dividend or other
distribution payable in shares of Common Stock, Options or in Convertible Securities or (B)
to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then
such record date will be deemed to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right of subscription or
purchase (as the case may be).
(vi) Floor Price. No adjustment pursuant to this Section 2(b) shall cause the
Exercise Price to be less than $0.34 (as adjusted for any stock dividend, stock split, stock
combination, reclassification or similar transaction occurring after the date of the
Securities Purchase Agreement) (the Floor Price).
(c) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraphs (a), (b) or
(d) of this Section 2, 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 adjusted number of Warrant Shares shall be the
same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard
to any limitations on exercise contained herein).
(d) Special Anti-Dilution Adjustment. On each Installment Date (as defined in the
Notes (as defined in the Securities Purchase Agreement)) on which the Company effects a Company
Conversion (as defined in the Notes) pursuant to Section 8 of the Notes, the Exercise Price shall
automatically be adjusted (up or down, as the case may be) simultaneously with such Company
Conversion to a price that is equal to the quotient of (A) the sum of each of the Company
Conversion Prices (as defined in the Notes) (adjusted for any stock dividend, stock split, stock
combination or other similar transaction occurring after the date of the Securities Purchase
Agreement) used for each Company Conversion that has occurred pursuant to Section 8 of the Notes
through and including such Installment Date divided by (B) the number of Company Conversions that
have occurred pursuant to Section 8 of the Notes through and including such Installment Date,
provided that in no event shall the Exercise Price be increased above $0.4125 (adjusted for any
stock dividend, stock split, stock combination or other similar transaction occurring after the
date of the Securities Purchase Agreement), provided further that no adjustment pursuant to this
Section 2(d) shall cause the Exercise Price to be less than the Floor Price. Notwithstanding the
foregoing, (i) if the Exercise Price was adjusted downward pursuant to Section 2(b) one or more
times, then no upward adjustment of the Exercise Price pursuant to this Section 2(d) shall cause
the Exercise Price to exceed the lowest Exercise Price that was in effect as a result of such
downward adjustment pursuant to Section 2(b) and (ii) no adjustment shall occur under this Section
2(d) at any time while the Company has current or accumulated earnings and profits within the
meaning of Section 316(a) of the Internal Revenue Code of 1986, as amended.
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(e) Other Events. In the event that the Company (or any Subsidiary (as defined in the Securities Purchase
Agreement)) shall take any action to which the provisions hereof are not strictly applicable, or,
if applicable, would not operate to protect the Holder from dilution or if any event occurs of the
type contemplated by the provisions of this Section 2 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation rights, phantom stock
rights or other rights with equity features), then the Companys board of directors shall in good
faith determine and implement an appropriate adjustment in the Exercise Price and the number of
Warrant Shares (if applicable) so as to protect the rights of the Holder, provided that no such
adjustment pursuant to this Section 2(e) will increase the Exercise Price or decrease the number of
Warrant Shares as otherwise determined pursuant to this Section 2, provided further that if the
Holder does not accept such adjustments as appropriately protecting its interests hereunder against
such dilution, then the Companys board of directors and the Holder shall agree, in good faith,
upon an independent investment bank of nationally recognized standing to make such appropriate
adjustments, whose determination shall be final and binding and whose fees and expenses shall be
borne by the Company.
(f) Calculations. All calculations under this Section 2 shall be made by rounding 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.
3. RIGHTS UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2
above, if the Company shall declare or make any dividend or other distribution of its assets (or
rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a Distribution), at any time after the
issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in
such Distribution to the same extent that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations on exercise hereof, including without limitation, the Maximum
Percentage) immediately before the date on which a record is taken for such Distribution, or, if no
such record is taken, the date as of which the record holders of shares of Common Stock are to be
determined for the participation in such Distribution (provided, however, to the extent that the
Holders right to participate in any such Distributions would result in the Holder exceeding the
Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to
such extent (or the beneficial ownership of any such shares of Common Stock as a result of such
Distribution to such extent) and such Distribution to such extent shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Maximum Percentage).
4. PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.
(a) Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time the Company
grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of any class of shares of Common Stock
(the Purchase Rights), then the Holder will be entitled to acquire,
10
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Maximum Percentage) immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of shares of Common Stock are to be determined for the
grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holders
right to participate in any such Purchase Right would result in the Holder exceeding the Maximum
Percentage, then the Holder shall not be entitled to participate in such Purchase Right to such
extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right
to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Maximum
Percentage).
(b) Fundamental Transactions. The Company shall not enter into or be party to a Fundamental Transaction unless (i) the
Successor Entity assumes in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents (as defined in the Securities Purchase Agreement) in accordance
with the provisions of this Section 4(b) pursuant to written agreements in form and substance
satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction,
including agreements to deliver to the Holder in exchange for this Warrant a security of the
Successor Entity evidenced by a written instrument substantially similar in form and substance to
this Warrant, including, without limitation, which is exercisable for a corresponding number of
shares of capital stock equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price
hereunder to such shares of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital
stock, such adjustments to the number of shares of capital stock and such exercise price being for
the purpose of protecting the economic value of this Warrant immediately prior to the consummation
of such Fundamental Transaction) and (ii) the Successor Entity is a publicly traded corporation
whose common stock is quoted on or listed for trading on an Eligible Market. Upon the consummation
of each Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so
that from and after the date of the applicable Fundamental Transaction, the provisions of this
Warrant and the other Transaction Documents referring to the Company shall refer instead to the
Successor Entity), and may exercise every right and power of the Company and shall assume all of
the obligations of the Company under this Warrant and the other Transaction Documents with the same
effect as if such Successor Entity had been named as the Company herein. Upon consummation of each
Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that there
shall be issued upon exercise of this Warrant at any time after the consummation of the applicable
Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets
or other property (except such items still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to the
applicable Fundamental Transaction, such shares of publicly traded common stock (or its equivalent)
of the Successor Entity which the Holder would have been entitled to receive upon the happening of
the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the
applicable Fundamental Transaction (without
11
regard to any limitations on the exercise of this Warrant), as adjusted in accordance with the
provisions of this Warrant. In addition to and not in substitution for any other rights hereunder,
prior to the consummation of each Fundamental Transaction pursuant to which holders of shares of
Common Stock are entitled to receive securities or other assets with respect to or in exchange for
shares of Common Stock (a Corporate Event), the Company shall make appropriate provision to
insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant
at any time after the consummation of the applicable Fundamental Transaction but prior to the
Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or
other property (except such items still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior to such
Fundamental Transaction, such shares of stock, securities, cash, assets or any other property
whatsoever (including warrants or other purchase or subscription rights) which the Holder would
have been entitled to receive upon the happening of the applicable Fundamental Transaction had this
Warrant been exercised immediately prior to the applicable Fundamental Transaction (without regard
to any limitations on the exercise of this Warrant). Provision made pursuant to the preceding
sentence shall be in a form and substance reasonably satisfactory to the Holder.
(c) Black Scholes Value. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of
the Holder delivered at any time commencing on the earliest to occur of (x) the public disclosure
of any Fundamental Transaction, (y) the consummation of any Fundamental Transaction and (z) the
Holder first becoming aware of any Fundamental Transaction (including, without limitation, a
Fundamental Transaction that is publicly disclosed, consummated or of which the Holder first
becomes aware (as the case may be) prior to the Initial Exercise Date) through the date that is
ninety (90) days after the public disclosure of the consummation of such Fundamental Transaction by
the Company pursuant to a Current Report on Form 8-K filed with the SEC, the Company or the
Successor Entity (as the case may be) shall purchase this Warrant from the Holder on the date of
such request by paying to the Holder cash in an amount equal to the Black Scholes Value.
(d) Application. The provisions of this Section 4 shall apply similarly and equally to
successive Fundamental Transactions and Corporate Events and shall be applied as if this Warrant
(and any such subsequent warrants) were fully exercisable and without regard to any limitations on
the exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit
of the Maximum Percentage, applied however with respect to shares of capital stock registered under
the 1934 Act and thereafter receivable upon exercise of this Warrant (or any such other warrant)).
5. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by
amendment of its Articles of Incorporation (as defined in the Securities Purchase Agreement),
Bylaws (as defined in the Securities Purchase Agreement) or through any reorganization, transfer of
assets, consolidation, merger, scheme of arrangement, 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, and will at all times in good faith carry out all the provisions of this
Warrant and take all action as may be required to protect the rights of the Holder. Without
limiting the generality of the foregoing, the Company (i) shall not increase the par value of any
shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then
in effect, (ii) shall take all such actions as may be necessary or appropriate in
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order that the Company may validly and legally issue fully paid and non-assessable shares of Common
Stock upon the exercise of this Warrant, and (iii) shall, so long as any of the SPA Warrants are
outstanding, take all action necessary to reserve and keep available out of its authorized and
unissued shares of Common Stock, solely for the purpose of effecting the exercise of the SPA
Warrants, the maximum number of shares of Common Stock as shall from time to time be necessary to
effect the exercise of the SPA Warrants then outstanding (without regard to any limitations on
exercise).
6. WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided
herein, the Holder, solely in its capacity as a holder of this Warrant, shall not be entitled to
vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its
capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any
right to vote, give or withhold consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive
notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance
to the Holder of the Warrant Shares which it is then entitled to receive upon the due exercise of
this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise)
or as a stockholder of the Company, whether such liabilities are asserted by the Company or by
creditors of the Company. Notwithstanding this Section 6, the Company shall provide the Holder with
copies of the same notices and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the stockholders.
7. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the
Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new
Warrant (in accordance with Section 7(d)), registered as the Holder may request, representing the
right to purchase the number of Warrant Shares being transferred by the Holder and, if less than
the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant
(in accordance with Section 7(d)) to the Holder representing the right to purchase the number of
Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant (as to which a written certification and the
indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft
or destruction, of any indemnification undertaking by the Holder to the Company in customary and
reasonable form and, in the case of mutilation, upon surrender and cancellation of this Warrant,
the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d))
representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal
office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing
in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant,
and each such new Warrant will
13
represent the right to purchase such portion of such Warrant Shares as is designated by the
Holder at the time of such surrender; provided, however, no warrants for fractional shares of
Common Stock shall be given.
(d) Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this
Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as
indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section
7(c), the Warrant Shares designated by the Holder which, when added to the number of shares of
Common Stock underlying the other new Warrants issued in connection with such issuance, does not
exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance
date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv)
shall have the same rights and conditions as this Warrant.
8. NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise
provided herein, such notice shall be given in accordance with Section 9(f) of the Securities
Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions
taken pursuant to this Warrant, including in reasonable detail a description of such action and the
reason therefor. Without limiting the generality of the foregoing, the Company will give written
notice to the Holder (i) immediately upon each adjustment of the Exercise Price and the number of
Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such
adjustment(s) and (ii) at least fifteen (15) days prior to the date on which the Company closes its
books or takes a record (A) with respect to any dividend or distribution upon the shares of Common
Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property to all holders of shares of Common
Stock or (C) for determining rights to vote with respect to any Fundamental Transaction,
dissolution or liquidation, provided in each case that such information shall be made known to the
public prior to or in conjunction with such notice being provided to the Holder and (iii) at least
ten (10) Trading Days prior to the consummation of any Fundamental Transaction. To the extent that
any notice provided hereunder constitutes, or contains, material, non-public information regarding
the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the
SEC (as defined in the Securities Purchase Agreement) pursuant to a Current Report on Form 8-K. It
is expressly understood and agreed that the time of execution specified by the Holder in each
Exercise Notice shall be definitive and may not be disputed or challenged by the Company, absent
manifest error.
9. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this
Warrant (other than Section 1(f)) may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it, only if the Company
has obtained the written consent of the Holder. The Holder shall be entitled, at its option, to the
benefit of any amendment of (i) any other similar warrant issued under the Securities Purchase
Agreement or (ii) any other similar warrant. No waiver shall be effective unless it is in writing
and signed by an authorized representative of the waiving party.
10. SEVERABILITY. If any provision of this Warrant is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that
would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to
14
the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability
of such provision shall not affect the validity of the remaining provisions of this Warrant so long
as this Warrant as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or
unenforceability of the provision(s) in question does not substantially impair the respective
expectations or reciprocal obligations of the parties or the practical realization of the benefits
that would otherwise be conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid
provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
11. GOVERNING LAW. This Warrant shall be governed by and construed and enforced in
accordance with, and all questions concerning the construction, validity, interpretation and
performance of this Warrant shall be governed by, the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of
Manhattan, 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, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law.
Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or
taking other legal action against the Company in any other jurisdiction to collect on the Companys
obligations to the Holder or to enforce a judgment or other court ruling in favor of the Holder.
THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS
WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
12. CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the
Company and the Holder and shall not be construed against any Person as the drafter hereof. The
headings of this Warrant are for convenience of reference and shall not form part of, or affect the
interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction
Documents shall have the meanings ascribed to such terms on the Closing Date (as defined in the
Securities Purchase Agreement) in such other Transaction Documents unless otherwise consented to in
writing by the Holder.
13. DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise
Price, the Closing Sale Price, the Bid Price or fair market value or the arithmetic calculation of
the Warrant Shares (as the case may be), the Company or the Holder (as the case may be) shall
submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile
(i) within two (2) Business Days after receipt of the applicable notice giving rise to such dispute
to the Company or the Holder (as the case may be) or (ii) if no notice gave rise to such dispute,
at
15
any time after the Holder learned of the circumstances giving rise to such dispute (including,
without limitation, as to whether any issuance or sale or deemed issuance or sale was an issuance
or sale or deemed issuance or sale of Excluded Securities). If the Holder and the Company are
unable to agree upon such determination or calculation (as the case may be) of the Exercise Price,
the Closing Sale Price, the Bid Price or fair market value or the number of Warrant Shares (as the
case may be) within three (3) Business Days of such disputed determination or arithmetic
calculation being submitted to the Company or the Holder (as the case may be), then the Company
shall, within two (2) Business Days submit via facsimile (a) the disputed determination of the
Exercise Price, the Closing Sale Price, the Bid Price or fair market value (as the case may be) to
an independent, reputable investment bank selected by the Holder or (b) the disputed arithmetic
calculation of the Warrant Shares to the Companys independent, outside accountant. The Company
shall cause at its expense the investment bank or the accountant (as the case may be) to perform
the determinations or calculations (as the case may be) and notify the Company and the Holder of
the results no later than ten (10) Business Days from the time it receives such disputed
determinations or calculations (as the case may be). Such investment banks or accountants
determination or calculation (as the case may be) shall be binding upon all parties absent
demonstrable error.
14. REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The
remedies provided in this Warrant shall be cumulative and in addition to all other remedies
available under this Warrant and the other Transaction Documents, at law or in equity (including a
decree of specific performance and/or other injunctive relief), and nothing herein shall limit the
right of the Holder to pursue actual damages for any failure by the Company to comply with the
terms of this Warrant. The Company covenants to the Holder that there shall be no characterization
concerning this instrument other than as expressly provided herein. Amounts set forth or provided
for herein with respect to payments, exercises and the like (and the computation thereof) shall be
the amounts to be received by the Holder and shall not, except as expressly provided herein, be
subject to any other obligation of the Company (or the performance thereof). The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore
agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall
be entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being
required. The Company shall provide all information and documentation to the Holder that is
requested by the Holder to enable the Holder to confirm the Companys compliance with the terms and
conditions of this Warrant (including, without limitation, compliance with Section 2 hereof). The
issuance of shares and certificates for shares as contemplated hereby upon the exercise of this
Warrant shall be made without charge to the Holder or such shares for any issuance tax or other
costs in respect thereof, provided that the Company shall not be required to pay any tax which may
be payable in respect of any transfer involved in the issuance and delivery of any certificate in a
name other than the Holder or its agent on its behalf.
15. TRANSFER. This Warrant may be offered for sale, sold, transferred or assigned without
the consent of the Company, except as may otherwise be required by Section 2(g) of the Securities
Purchase Agreement.
16
16. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the
following meanings:
(a) Bid Price means, for any security as of the particular time of determination, the bid
price for such security on the Principal Market as reported by Bloomberg as of such time of
determination, or, if the Principal Market is not the principal securities exchange or trading
market for such security, the bid price of such security on the principal securities exchange or
trading market where such security is listed or traded as reported by Bloomberg as of such time of
determination, or if the foregoing does not apply, the bid price of such security in the
over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg
as of such time of determination, or, if no bid price is reported for such security by Bloomberg as
of such time of determination, the average of the bid prices of any market makers for such security
as reported in the pink sheets by Pink OTC Markets Inc. (formerly Pink Sheets LLC) as of such
time of determination. If the Bid Price cannot be calculated for a security as of the particular
time of determination on any of the foregoing bases, the Bid Price of such security as of such time
of determination shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with the procedures in Section 13. All
such determinations shall be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during such period.
(b) Black Scholes Consideration Value means the value of the applicable Option or
Convertible Security (as the case may be) as of the date of issuance thereof calculated using the
Black Scholes Option Pricing Model obtained from the OV function on Bloomberg utilizing (i) an
underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the public announcement of the execution of definitive documents with respect
to the issuance of such Option or Convertible Security (as the case may be), (ii) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of
such Option or Convertible Security (as the case may be) as of the date of issuance of such Option
or Convertible Security (as the case may be) and (iii) an expected volatility equal to the greater
of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined
utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of
issuance of such Option or Convertible Security (as the case may be).
(c) Black Scholes Value means the value of the unexercised portion of this Warrant remaining
on the date of the Holders request pursuant to Section 4(c), which value is calculated using the
Black Scholes Option Pricing Model obtained from the OV function on Bloomberg utilizing (i) an
underlying price per share equal to the greater of (1) the highest Closing Sale Price of the Common
Stock during the period beginning on the Trading Day immediately preceding the earliest to occur of
(x) the public disclosure of the applicable Fundamental Transaction, (y) the consummation of the
applicable Fundamental Transaction and (z) the date on which the Holder first became aware of the
applicable Fundamental Transaction and ending on the Trading Day of the Holders request pursuant
to Section 4(c) and (2) the sum of the price per share being offered in cash in the applicable
Fundamental Transaction (if any) plus the value of the non-cash consideration being offered in the
applicable Fundamental Transaction (if any), (ii) a strike price equal to the Exercise Price in
effect on the date of the
17
Holders request pursuant to Section 4(c), (iii) a risk-free interest rate corresponding to
the U.S. Treasury rate for a period equal to the greater of (1) the remaining term of this Warrant
as of the date of the Holders request pursuant to Section 4(c) and (2) the remaining term of this
Warrant as of the date of consummation of the applicable Fundamental Transaction or as of the date
of the Holders request pursuant to Section 4(c) if such request is prior to the date of the
consummation of the applicable Fundamental Transaction and (iv) an expected volatility equal to the
greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined
utilizing a 365 day annualization factor) as of the Trading Day immediately following the earliest
to occur of (x) the public disclosure of the applicable Fundamental Transaction, (y) the
consummation of the applicable Fundamental Transaction and (z) the date on which the Holder first
became aware of the applicable Fundamental Transaction.
(d) Bloomberg means Bloomberg, L.P.
(e) Business Day means any day other than Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to remain closed.
(f) Closing Sale Price means, for any security as of any date, the last closing trade price
for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing trade price, then
the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by
Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market
for such security, the last trade price of such security on the principal securities exchange or
trading market where such security is listed or traded as reported by Bloomberg, or if the
foregoing does not apply, the last trade price of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade
price is reported for such security by Bloomberg, the average of the ask prices of any market
makers for such security as reported in the pink sheets by Pink OTC Markets Inc. (formerly Pink
Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on
any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder
are unable to agree upon the fair market value of such security, then such dispute shall be
resolved in accordance with the procedures in Section 13. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during such period.
(g) Common Stock means (i) the Companys shares of common stock, $0.0001 par value per
share, and (ii) any capital stock into which such common stock shall have been changed or any share
capital resulting from a reclassification of such common stock.
(h) Convertible Securities means any stock or other security (other than Options) that is at
any time and under any circumstances, directly or indirectly, convertible into, exercisable or
exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common
Stock.
(i) Eligible Market means The New York Stock Exchange, the NYSE Amex, the Nasdaq Global
Select Market, the Nasdaq Global Market or the Principal Market.
18
(j) Equity Conditions means: (i) on each day during the period beginning one month prior to
the applicable date of determination and ending on and including the applicable date of
determination a Registration Statement is effective and the prospectus contained therein shall be
available for the resale by the Holder of all of the Warrant Shares (disregarding any limitation on
exercise of this Warrant); (ii) on each day during the period beginning one month prior to the
applicable date of determination and ending on and including the applicable date of determination
(the Equity Conditions Measuring Period), the Common Stock (including all of the Warrant Shares)
is listed or designated for quotation (as applicable) on an Eligible Market and shall not have been
suspended from trading on an Eligible Market (other than suspensions of not more than two (2) days
and occurring prior to the applicable date of determination due to business announcements by the
Company) nor shall delisting or suspension by an Eligible Market have been threatened (with a
reasonable prospect of delisting occurring) or pending, which has not been disclosed on the date
hereof in the SEC Documents (as defined in the Securities Purchase Agreement) either (A) in writing
by such Eligible Market or (B) by falling below the minimum listing maintenance requirements of the
Eligible Market on which the Common Stock is then listed or designated for quotation (as
applicable); (iii) on each day during the Equity Conditions Measuring Period, the Company shall
have delivered all shares of Common Stock issuable upon exercise of this Warrant on a timely basis
as set forth in Section 1(a) hereof and all other shares of capital stock required to be delivered
by the Company on a timely basis as set forth in the other Transaction Documents; (iv) any shares
of Common Stock to be issued in connection with the event requiring determination may be issued in
full without violating Section 1(f) hereof (Holder acknowledges that the Company shall be entitled
to assume that this condition has been met for all purposes hereunder absent written notice from
Holder); (v) any shares of Common Stock to be issued in connection with the event requiring
determination may be issued in full without violating the rules or regulations of the Eligible
Market on which the Common Stock is then listed or designated for quotation (as applicable); (vi)
on each day during the Equity Conditions Measuring Period, no public announcement of a pending,
proposed or intended Fundamental Transaction shall have occurred which has not been abandoned,
terminated or consummated; (vii) the Company shall have no knowledge of any fact that would
reasonably be expected to cause any Registration Statement to not be effective or the prospectus
contained therein to not be available for the resale by the Holder of all of the Warrant Shares
(disregarding any limitation on exercise of this Warrant); (viii) the Holder shall not be in (and
no other Buyer shall be in) possession of any material, non-public information provided to any of
them by the Company, any of its Subsidiaries or any of their respective affiliates, employees,
officers, representatives, agents or the like; (ix) on each day during the Equity Conditions
Measuring Period, the Company otherwise shall have been in material compliance with each provision,
covenant, representation or warranty of any of the Transaction Documents and shall not have
breached any, provision, covenant, representation or warranty of any of the Transaction Documents;
and (x) without limitation of the foregoing clause (ix), on each day during the Equity Conditions
Measuring Period, there shall not have occurred an Event of Default (as defined under the Notes) or
an event that with the passage of time or giving of notice would constitute an Event of Default.
(k) Equity Conditions Failure means, with respect to a particular date of determination,
that on any day during the period commencing twenty (20) Trading Days immediately prior to such
date of determination, the Equity Conditions have not been satisfied (or waived in writing by the
Holder).
19
(l) Expiration Date means the date that is the nine (9) month anniversary of the date on
which Shareholder Approval is obtained or, if such date falls on a day other than a Business Day or
on which trading does not take place on the Principal Market (a Holiday), the next date that is
not a Holiday.
(m) Fundamental Transaction means that (i) (1) the Company or any of its Subsidiaries shall,
directly or indirectly, in one or more related transactions, consolidate or merge with or into
(whether or not the Company or any of its Subsidiaries is the surviving corporation) any other
Person, or (2) the Company or any of its Significant Subsidiaries (as defined in the Notes) shall,
directly or indirectly, in one or more related transactions, sell, lease, license, assign,
transfer, convey or otherwise dispose of all or substantially all of its respective properties or
assets to any other Person, or (3) the Company or any of its Subsidiaries shall, directly or
indirectly, in one or more related transactions, allow any other Person to make a purchase, tender
or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of
Voting Stock of the Company (not including any shares of Voting Stock of the Company held by the
Person or Persons making or party to, or associated or affiliated with the Persons making or party
to, such purchase, tender or exchange offer), or (4) the Company or any of its Subsidiaries shall,
directly or indirectly, in one or more related transactions, consummate a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with any other Person whereby such other
Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not
including any shares of Voting Stock of the Company held by the other Person or other Persons
making or party to, or associated or affiliated with the other Persons making or party to, such
stock or share purchase agreement or other business combination), or (5) the Company or any of its
Subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize,
recapitalize or reclassify the Common Stock (which shall not include a reverse stock split), or
(ii) any person or group (as these terms are used for purposes of Sections 13(d) and 14(d) of
the 1934 Act and the rules and regulations promulgated thereunder) is or shall become the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of
the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the
Company.
(n) Options means any rights, warrants or options to subscribe for or purchase shares of
Common Stock or Convertible Securities.
(o) Parent Entity of a Person means an entity that, directly or indirectly, controls the
applicable Person and whose common stock or equivalent equity security is quoted or listed on an
Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the date of consummation of the
Fundamental Transaction.
(p) Person means an individual, a limited liability company, a partnership, a joint venture,
a corporation, a trust, an unincorporated organization, any other entity or a government or any
department or agency thereof.
(q) Principal Market means the Nasdaq Capital Market.
20
(r) Successor Entity means the Person (or, if so elected by the Holder, the Parent Entity)
formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected
by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been entered
into.
(s) Trading Day means any day on which the Common Stock is traded on the Principal Market,
or, if the Principal Market is not the principal trading market for the Common Stock, then on the
principal securities exchange or securities market on which the Common Stock is then traded,
provided that Trading Day shall not include any day on which the Common Stock is scheduled to
trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such exchange or market (or if such
exchange or market does not designate in advance the closing time of trading on such exchange or
market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise
designated as a Trading Day in writing by the Holder.
(t) Voting Stock of a Person means capital stock of such Person of the class or classes
pursuant to which the holders thereof have the general voting power to elect, or the general power
to appoint, at least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time capital stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
(u) VWAP means, for any security as of any date, the dollar volume-weighted average price
for such security on the Principal Market (or, if the Principal Market is not the principal trading
market for such security, then on the principal securities exchange or securities market on which
such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and
ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its Volume at Price
function or, if the foregoing does not apply, the dollar volume-weighted average price of such
security in the over-the-counter market on the electronic bulletin board for such security during
the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as
reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security
by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing
ask price of any of the market makers for such security as reported in the pink sheets by Pink
OTC Markets Inc. (formerly Pink Sheets LLC). If VWAP cannot be calculated for such security on such
date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market
value as mutually determined by the Company and the Holder. If the Company and the Holder are
unable to agree upon the fair market value of such security, then such dispute shall be resolved in
accordance with the procedures in Section 13. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar transaction during
such period.
17. MANDATORY EXERCISE. If at any time after the date on which Shareholder Approval is
obtained (the Mandatory Exercise Eligibility Date), (i) the Common Stock trades at a price equal
to or greater than 200% of the Exercise Price then in effect (the Trigger Price) for a period of
ten (10) consecutive Trading Days following the Mandatory Exercise Eligibility Date (the ten (10)
consecutive Trading Days on which the condition in this clause (i) is satisfied are referred to
herein as the Mandatory Exercise Measuring Period), (ii) the aggregate dollar trading volume (as
reported on Bloomberg) of the Common Stock on the applicable Eligible Market for each Trading Day
during the Mandatory Exercise Measuring Period exceeds
21
$250,000 per day and (iii) no Equity Conditions Failure shall have occurred, then the Company shall
have the right to require the Holder to exercise all, but not less than all, of this Warrant for
all of the then-remaining Warrant Shares in accordance with Section 1 hereof (a Mandatory
Exercise). The Company may exercise its right to require exercise under this Section 17 by
delivering (provided that all of the conditions set forth in clauses (i) through (iii) above are
then satisfied), on the first (1st) Trading Day immediately following the end of the
Mandatory Exercise Measuring Period, a written notice thereof by facsimile and overnight courier to
the Holder (the Mandatory Exercise Notice and the date the Holder receives such notice by
facsimile is referred to as the Mandatory Exercise Notice Date). The Mandatory Exercise Notice
shall be irrevocable. The Mandatory Exercise Notice shall (1) state the Trading Day selected for
the Mandatory Exercise in accordance with this Section 17, which Trading Day shall be at least two
(2) Trading Days but not more than sixty (60) Trading Days following the Mandatory Exercise Notice
Date (the Mandatory Exercise Date), (2) state the number of shares of Common Stock to be issued
to the Holder on the Mandatory Exercise Date (subject to any adjustments thereto pursuant to
Section 2 that may occur prior to the Mandatory Exercise Date), (3) contain a certification from
the Chief Executive Officer of the Company that there is then no Equity Conditions Failure and (4)
contain a certification from the Chief Executive Officer of the Company that the Company has
simultaneously taken the same action with respect to all of the Series B Warrants. Any portion of
this Warrant exercised by the Holder after the Mandatory Exercise Notice Date shall reduce the
number of Warrant Shares for which this Warrant is required to be exercised on the Mandatory
Exercise Date. If the Company has elected a Mandatory Exercise, the mechanics of exercise set forth
in Section 1 shall apply, to the extent applicable, as if the Company had received from the Holder
on the Mandatory Exercise Date an Exercise Notice with respect to all of the then-remaining Warrant
Shares. Notwithstanding anything contained in this Section 17 to the contrary, if (I) any shares of
Common Stock trade for a price less than the Trigger Price on any day during the period commencing
on the Mandatory Exercise Notice Date and ending on the Trading Day immediately preceding the
Mandatory Exercise Date; (II) the aggregate dollar trading volume (as reported on Bloomberg) of the
Common Stock on the applicable Eligible Market on any Trading Day during the period commencing on
the Mandatory Exercise Notice Date and ending on the Trading Day immediately preceding the
Mandatory Exercise Date is less than $250,000 per day; or (III) an Equity Conditions Failure occurs
on any day during the period commencing on the Mandatory Exercise Notice Date and ending on the
Mandatory Exercise Date which has not been waived in writing by the Holder, then, in either case,
the Mandatory Exercise Notice delivered to the Holder shall be null and void ab initio and the
Mandatory Exercise contemplated by such Mandatory Exercise Notice shall not occur. If the Company
elects to cause a Mandatory Exercise of this Warrant pursuant to this Section 17, then it must
simultaneously take the same action with respect to all of the other Series B Warrants then
outstanding.
[signature page follows]
22
IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly
executed as of the Issuance Date set out above.
CONVERTED ORGANICS INC. | ||||||
By: | ||||||
Name: | ||||||
Title: |
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
WARRANT TO PURCHASE COMMON STOCK
CONVERTED ORGANICS INC.
The undersigned holder hereby exercises the right to purchase of the shares
of Common Stock (Warrant Shares) of Converted Organics Inc., a Delaware corporation (the
Company), evidenced by Series B Warrant No. (the Warrant). Capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price. The Holder intends that payment of the Exercise Price
shall be made as:
____________ | a Cash Exercise with respect to _________________ Warrant Shares; and/or | |||
____________ | a Cashless Exercise with respect to _______________ Warrant Shares. |
In the event that the Holder has elected a Cashless Exercise with respect to some or all of
the Warrant Shares to be issued pursuant hereto, the Holder hereby represents and warrants that (i)
this Exercise Notice was executed by the Holder at [a.m.][p.m.] on the date set forth
below and (ii) if applicable, the Bid Price as of such time of execution of this Exercise Notice
was $ .
2. Payment of Exercise Price. In the event that the Holder has elected a Cash Exercise
with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder shall
pay the Aggregate Exercise Price in the sum of $ to the Company in accordance
with the terms of the Warrant.
3. Delivery of Warrant Shares. The Company shall deliver to Holder, or its designee
or agent as specified below, Warrant Shares in accordance with the terms of the Warrant.
Delivery shall be made to Holder, or for its benefit, to the following address:
Date:
,
By: |
||||
Title: |
EXHIBIT B
ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby directs ______________ to
issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent
Instructions dated _________, 20__, from the Company and acknowledged and agreed to by
______________.
CONVERTED ORGANICS INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||