EXHIBIT 10.2 - FORM OF WARRANT
Published on February 20, 2008
EXHIBIT
10.3
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B)
AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS
SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. THESE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
EMCORE
CORPORATION
WARRANT
TO PURCHASE COMMON STOCK
To
Purchase [_______] Shares of Common Stock
Date
of
Issuance: February 19, 2008
VOID
AFTER FEBRUARY 15, 2013
THIS
CERTIFIES THAT, for value received, [_________], or permitted registered assigns
(the “Holder”), is entitled to subscribe for and purchase at
the Exercise Price (defined below) from Emcore Corporation, a New Jersey
corporation (the “Company”) up to [_____] shares of the Common
Stock (as defined in Section 1 below), as adjusted pursuant to the terms
hereof. This warrant (the “Warrant”) is one of a
series of warrants issued by the Company as of the date hereof (collectively,
the “Company Warrants”) pursuant to that certain Stock Purchase
Agreement between the Company and the Holder, dated as of February 15, 2008
(the
“Stock Purchase Agreement”).
1. DEFINITIONS. Capitalized
terms used herein but not otherwise defined herein shall have their respective
meanings as set forth in the Stock Purchase Agreement. As used
herein, the following terms shall have the following respective
meanings:
“Black
Scholes Value” means the value of this Warrant based on the Black and
Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day immediately following the public announcement of the
applicable Fundamental Transaction and reflecting (i) a risk-free interest
rate
corresponding to the U.S. Treasury rate for a period equal to the remaining
term
of this Warrant as of such date of request and (ii) an expected volatility
equal
to the lesser of 50% and the 100 day volatility obtained from the HVT function
on Bloomberg.
“Bloomberg”
means Bloomberg Financial Markets.
“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.
“Cash
Percentage” means, in a Partial Cash Transaction, the percentage of the
fair market value (determined in the manner described in the definition of
“Closing Bid Price”) of the consideration for which this Warrant is exercisable
immediately following such Partial Cash Transaction that is comprised of
property (including cash) other than the publicly traded Common Stock of such
Successor Entity.
“Closing
Bid Price” and “Closing Sale Price” means, for any
security as of any date, the last closing bid price and last closing trade
price, respectively, for such security on The Nasdaq Global Market (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 bid price or the closing trade price, as the case may
be,
then the last bid price or last trade price, respectively, 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 closing bid price or last trade price, respectively,
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
do
not apply, the last closing bid price or last trade price, respectively, of
such
security in the over-the-counter market on the electronic bulletin board for
such security as reported by Bloomberg, or, if no closing bid price or last
trade price, respectively, is reported for such security by Bloomberg, the
average of the bid prices, or the ask prices, respectively, of any market makers
for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly
the National Quotation Bureau, Inc.). If the Closing Bid Price or the
Closing Sale Price cannot be calculated for a security on a particular date
on
any of the foregoing bases, the Closing Bid Price or the Closing Sale Price,
as
the case may be, 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 pursuant to Section 12. All
such determinations shall be appropriately adjusted for any stock dividend,
stock split, stock combination or other similar transaction during the
applicable calculation period.
“Common
Stock” means (i) the Company’s shares of Common Stock, no par
value per share, and (ii) any share capital into which such Common Stock
shall have been changed or any share capital resulting from a reclassification
of such Common Stock.
“Eligible
Market” means The New York Stock Exchange, Inc., The NASDAQ Global
Market, The NASDAQ Capital Market, The American Stock Exchange, or The NASDAQ
Global Select Market.
“Equity
Conditions” means: (i) on each day during the period
beginning sixty (60) days prior to the applicable date of determination and
ending on and including the applicable date of determination (the
“Equity Conditions Measuring Period”), all shares of Common
Stock issued and issuable upon exercise of the Warrants shall be eligible for
sale pursuant to Rule 144 without restriction or limitation including without
the requirement to be subject to Rule 144(c)(1) and without the need for
registration under any applicable federal or state securities laws; (ii) on
each
day during the Equity Conditions Measuring Period, the Common Stock are
designated for quotation on an Eligible Market and shall not have been suspended
from trading on such 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 proceedings for such delisting
or suspension by such Eligible Market have been commenced, threatened or pending
either (A) in writing by such Eligible Market or (B) by falling below the
minimum listing maintenance requirements of such Eligible Market; (iii) on
each
day during the Equity Conditions Measuring Period, the Company shall have
delivered Common Stock upon any exercise of the Warrants to the Holders on
a
timely basis as set forth in Section 2 hereof; (iv) any applicable 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 applicable
Eligible Market; (v) during the Equity Conditions Measuring Period, the Company
shall not have failed to timely make any payments within five (5) Business
Days
of when such payment is due pursuant to any Transaction Document (as defined
in
the Stock Purchase Agreement); (vi) during the period beginning thirty (30)
days
prior to the applicable date of determination and ending on and including the
applicable date of determination, there shall not have occurred the public
announcement of a pending, proposed or intended Fundamental Transaction which
has not been abandoned, terminated or consummated; (vii) the Company shall
have
no knowledge of any fact that would cause all shares of Common Stock issued
and
issuable upon exercise of the Warrants not to be eligible for sale pursuant
to
Rule 144 without restriction or limitation including without the requirement
to
be subject to Rule 144(c)(1) and without the need for registration under any
applicable federal or state securities laws; and (viii) during the Equity
Conditions Measuring Period, the Company otherwise shall have been in compliance
with and shall not have breached any provision, covenant, representation or
warranty of any Transaction Document.
“Equity
Conditions
Failure” means that during the period commencing on the first Trading
Day of the Optional Exercise Measuring Period through the Optional Exercise
Date, the Equity Conditions have not been satisfied.
“Exercise
Period” shall mean the period commencing with the date hereof and
ending on the Initial Termination Date, unless terminated earlier pursuant
to
Section 2.6 hereof.
“Exercise
Price” shall mean $15.06 per share, subject to adjustment pursuant to
Section 4 below.
“Exercise
Shares” shall mean the shares of Common Stock issuable upon exercise of
this Warrant.
"Fundamental
Transaction" means that the Company shall directly or indirectly, in
one or more related transactions, (i) consolidate or merge with or into (whether
or not the Company is the surviving corporation) another Person, or (ii) sell,
assign, transfer, convey or otherwise dispose of all or substantially all of
the
properties or assets of the Company to another Person, or (iii) allow another
Person to make a purchase, tender or exchange offer that is accepted by the
holders of more than the 50% of either the outstanding shares of Common Stock
(not including any shares of Common Stock 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 (iv) consummate a stock purchase
agreement or other business combination (including, without limitation, a
reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than the 50% of the
outstanding shares of Common Stock (not including any shares of Common Stock
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 purchase
agreement or other business combination), or (v) reorganize, recapitalize or
reclassify its Common Stock, or (vi) any "person" or "group" (as these terms
are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act), become
the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50% of the aggregate ordinary voting power represented by
issued and outstanding Common Stock. For the avoidance of doubt, and
notwithstanding the foregoing, the term “Fundamental Transaction” shall not
include any Spin Off.
“Initial
Termination Date” shall mean 5:00 P.M. New York City time on February
15, 2013.
“Public
Stock Transaction” means a Fundamental Transaction in which (i) a
Successor Entity that is a publicly traded corporation whose stock is quoted
or
listed for trading on an Eligible Market assumes this Warrant such that the
Warrant shall be exercisable for the publicly traded Common Stock of such
Successor Entity, or (ii) a Successor Entity that is a publicly traded
corporation whose stock is quoted or listed for trading on an Eligible Market
assumes this Warrant such that the Warrant shall be exercisable for
consideration of which at least 90% of the fair market value (determined in
the
manner described in the definition of “Closing Bid Price”) is comprised of the
publicly traded Common Stock of such Successor Entity (any transaction described
in this clause (ii), a “Partial Cash
Transaction”).
“Spin
Off” means (i) the contribution or transfer of assets by the Company to
an affiliated entity in anticipation of a distribution to the Company’s
stockholders of shares or assets such affiliated entity, (ii) any distribution
referred to in clause (i) of this definition, or (iii) any other transaction,
however structured, which results in one or more of the lines of business or
divisions of the Company being transferred to another entity which, immediately
following such transaction or a related distribution, is owned by the same
stockholders as the Company, provided, that in the case of any such
transaction referred to in clause (i), (ii) or (iii), the holders of the Company
Warrants would receive an adjustment pursuant to Section 4 on account of
the property distributed or otherwise transferred to the Company’s stockholders
in such transaction.
"Successor
Entity" means the Person formed by, resulting from or surviving any
Fundamental Transaction or the Person with which such Fundamental Transaction
shall have been entered into.
“Trading
Day” shall mean (a) any day on which the Common Stock is listed or
quoted and traded on its primary trading market, (b) if the Common Stock is
not
then listed or quoted and traded on any Eligible Market, then a day on which
trading occurs on the OTC Bulletin Board (or any successor thereto), or (c)
if
trading does not occur on the OTC Bulletin Board (or any successor thereto),
any
Business Day.
“Weighted
Average Price” means, for any security as of any date, the dollar
volume-weighted average price for such security on the Principal Market during
the period beginning at 9:30:01 a.m., New York Time (or such other time as
the
Principal Market publicly announces is the official open of trading), and ending
at 4:00:00 p.m., New York Time (or such other time as the Principal Market
publicly announces is the official close of trading) as reported by Bloomberg
through its “Volume at Price” functions, 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 (or such other time
as such market publicly announces is the official open of trading), and ending
at 4:00:00 p.m., New York Time (or such other time as such market publicly
announces is the official close of trading) 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 Sheets LLC (formerly the National Quotation Bureau,
Inc.). If the Weighted Average Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Weighted
Average 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 pursuant to Section 12. All such
determinations are to be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during the applicable
calculation period.
2. EXERCISE
OF WARRANT.
2.1 General. The
rights represented by this Warrant may be exercised in whole or in part at
any
time during the Exercise Period, by delivery of the following to the Company
at
its address set forth on the signature page hereto (or at such other address
as
it may designate by notice in writing to the Holder):
(A) an
executed Notice of Exercise in the form attached hereto; and
(B) payment
of the Exercise Price either (i) in cash or by check, (ii) cancellation of
indebtedness or (iii) pursuant to a cashless exercise as set forth in Section
2.1 below.
The
Holder shall not be required to deliver the original Warrant in order to effect
an exercise hereunder unless such exercise is an exercise of the Warrant in
full. Execution and delivery of the Notice of Exercise shall have the
same effect as cancellation of the original Warrant and issuance of a new
Warrant evidencing the right to purchase the remaining number of Exercise
Shares, if any.
The
Company shall (i) provided that the Company’s transfer agent (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 Holder’s
or its designee’s balance account with DTC through its Deposit Withdrawal Agent
Commission system, or (ii) if the Transfer Agent is not participating in the
DTC
Fast Automated Securities Transfer Program, issue and dispatch by overnight
courier to the address specified by the Holder in the Notice of Exercise, a
certificate, registered in the Company’s share register in the name of the
Holder or its designee, for the number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise within three (3) Business Days
from
the delivery to the Company of (A) the Notice of Exercise and (B) payment of
the
aggregate Exercise Price as set forth above or cash exercise pursuant to
Section 2.2. This Warrant shall be deemed to have been
exercised on the date the Exercise Delivery Documents (as defined below) are
received by the Company (any such date, the “Exercise
Date”). On or before the first (1st) Business Day following
the date on which the Company has received each of the Notice of Exercise and
payment of the aggregate Exercise Price as set forth above or cashless exercise
pursuant to Section 2.2) (the “Exercise Delivery
Documents”), the Company shall transmit by facsimile an acknowledgment
of confirmation of receipt of the Exercise Delivery Documents to the Holder
and
the Transfer Agent. The Exercise Shares shall be deemed to have been
issued, and the Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the Exercise Date.
The
person in whose name any certificate or certificates for Exercise Shares are
to
be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the Exercise Date, irrespective of the date
of delivery of such certificate or certificates, except that, if the Exercise
Date is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close
of
business on the next succeeding date on which the stock transfer books are
open.
To
the
extent permitted by law, the Company’s obligations to issue and deliver Exercise
Shares in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any
waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the same, or
any
setoff, counterclaim, recoupment, limitation or termination, or any breach
or
alleged breach by the Holder or any other person or entity of any obligation
to
the Company or any violation or alleged violation of law by the Holder or any
other person or entity, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in connection
with
the issuance of Exercise Shares. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of this Warrant
as required pursuant to the terms hereof.
2.2 NET
EXERCISE. In lieu of exercising this Warrant by payment of cash
or by check, or by cancellation of indebtedness, the Holder may, in its sole
discretion, elect to receive shares equal to the value (as determined below)
of
this Warrant (or the portion thereof being canceled) by delivery of the Exercise
Delivery Documents in which event the Company shall issue to the Holder a number
of shares of Common Stock computed using the following formula:
X =
|
Y
(A-B)
A
|
Where
X
= the
number of shares of Common Stock to be issued to the Holder
|
Y
=
|
the
number of shares of Common Stock purchasable under this Warrant or,
if
only a portion of this Warrant is being exercised, the portion of
this
Warrant being canceled (at the date of such
calculation)
|
|
A
=
|
the
Weighted Average Price of one share of the Common Stock for the ten
(10
consecutive Trading Days ending on the date immediately preceding
the
Exercise Date
|
|
B
=
|
the
Exercise Price then in effect for the applicable Exercise Shares
at the
time of such exercise
|
2.3 ISSUANCE
OF NEW WARRANTS. If this Warrant is surrendered in connection
with any partial exercise of this Warrant, the Company, at its expense, will
forthwith and, in any event within three (3) Business Days, issue and deliver
to
the Holder a new warrant or warrants of like tenor, registered in the name
of
the Holder, exercisable, in the aggregate, for the balance of the number of
shares of Common Stock remaining available for purchase under this
Warrant.
2.4 PAYMENT
OF TAXES AND EXPENSES. The Company shall pay any recording,
filing, stamp or similar tax which may be payable in respect of any issuance
and
delivery of, and the preparation and delivery of certificates (if applicable)
representing, (i) any Exercise Shares purchased upon exercise of this Warrant
and/or (ii) new or replacement warrants in the Holder’s name or the name of any
transferee of all or any portion of this Warrant, provided that the Holder
shall
pay any transfer tax in connection with any transfer of all or any portion
of
this Warrant or such Exercise Shares to any transferee.
2.5 EXERCISE
LIMITATIONS; HOLDER’S RESTRICTIONS. The Company shall not effect
the exercise of this Warrant and the Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the
extent that after giving effect to such issuance after exercise, such Holder
(together with such Holder’s affiliates), as set forth on the applicable Notice
of Exercise, would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the number of shares of the Common Stock outstanding immediately
after giving effect to such exercise. For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by such Holder
and its affiliates shall include the number of shares of Common Stock issuable
upon exercise of this Warrant with respect to which the determination of such
sentence is being made, but shall exclude the number of shares of Common Stock
which would be issuable upon (A) exercise of the remaining, nonexercised portion
of this Warrant beneficially owned by such Holder or any of its affiliates
and
(B) exercise or conversion of the unexercised or nonconverted portion of any
other securities of the Company (including, without limitation, any other shares
of Common Stock or Warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein. Except as set forth in
the preceding sentence, for purposes of this Section 2.4, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), it being acknowledged by
the Holder that the Company is not representing to such Holder that such
calculation is in compliance with Section 13(d) of the Exchange Act and such
Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in
this Section 2.4 applies, the determination of whether this Warrant is
exercisable (in relation to other securities owned by such Holder) and of which
a portion of this Warrant is exercisable shall be in the sole discretion of
a
Holder, and the submission of a Notice of Exercise shall be deemed to be the
Holder’s determination of whether this Warrant is exercisable (in
relation to other securities owned by such Holder) and of which portion of
this
Warrant is exercisable, in each case subject to such aggregate percentage
limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. For purposes of this Section
2.4, in determining the number of outstanding shares of Common Stock, a
Holder may rely on the number of outstanding shares of Common Stock as reflected
in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y)
a more recent public announcement by the Company or (z) any other notice by
the
Company or the Transfer Agent setting forth the number of shares of Common
Stock
outstanding. Upon the written or oral request of the Holder, the
Company shall within two (2) Business Days confirm orally and in writing to
such
Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined
after
giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by such Holder or its affiliates since the date as
of
which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from time
to time increase or decrease the Maximum Percentage to any other percentage
not
in excess of 9.99% specified in such notice; provided that (i) any such increase
will not be effective until the sixty-first (61st) day after
such
notice is delivered to the Company, and (ii) any such increase or decrease
will
apply only to the Holder and not to any other holder of Company
Warrants. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms
of
this Section 2.4 to correct this paragraph (or any portion hereof) which
may be defective or inconsistent with the intended beneficial ownership
limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation.
2.6 CALL
PROVISION. Subject to the provisions of Section 2.5 and
this Section 2.6, if, at any time after February 19, 2010 (the
“Triggering Date”) that (i) the Closing Sale Price of the
Common Stock has exceeded 150% of the Exercise Price for at least 20 Trading
Days within a period of any 30 consecutive Trading Days after the Triggering
Date (the “Call Measuring Period”), (ii) the arithmetic average
of the daily volume of the Common Stock during the Call Measuring Period
(determined by dividing the aggregate volume of trades for each Trading Day
during the Call Measuring Period by 30) exceeds 500,000 shares of Common Stock
and (iii) there has been no Equity Conditions Failure, then the Company may,
within one (1) Trading Day of the end of such Measurement Period, call for
the
cancellation of all or any portion of this Warrant for which a Notice of
Exercise has not yet been delivered (such right, a “Call”) for
consideration equal to $0.01 per Exercise Share. To exercise this
right, the Company must deliver to the Holder an irrevocable written notice
(a
“Call Notice”), which shall state (A) the Call Date (as defined
below) and (B) the aggregate number of Exercise Shares which the Company has
elected to be subject to the Call by all of the holders of the Company Warrants
pursuant to this Section 2.6 (and analogous provisions under the other
Company Warrants) on the Call Date. Notwithstanding the foregoing,
nothing in this subsection shall prevent the Holder from exercising this
Warrant, in whole or part, prior to such Call Date. If the conditions
set forth below for such Call are satisfied from the period from the date of
the
Call Notice through and including the Call Date, then any portion of this
Warrant subject to such Call Notice for which a Notice of Exercise shall not
have been received by the Call Date will be cancelled at 5:00 p.m. (New York
City time) on the twentieth (20th) Trading Day after the date the Call Notice
is
received by the Holder (such date and time, the “Call
Date”). Any unexercised portion of this Warrant to which the
Call Notice does not pertain will be unaffected by such Call
Notice. In furtherance thereof, the Company covenants and agrees that
it will honor all Notices of Exercise with respect to Exercise Shares subject
to
a Call Notice that are tendered through 5:00 p.m. (New York City time) on the
Call Date. The Company agrees that any Notice of Exercise delivered
on or after a Call Notice which calls less than all the Warrants shall first
reduce to zero the number of Exercise Shares subject to such Call Notice prior
to reducing the remaining Exercise Shares available for purchase under this
Warrant. For example, if (x) this Warrant then permits the Holder to
acquire one hundred (100) Exercise Shares, (y) a Call Notice pertains to
seventy-five (75) Exercise Shares, and (z) prior to 5:00 p.m. (New York City
time) on the Call Date the Holder tenders a Notice of Exercise in respect of
fifty (50) Exercise Shares, then (1) on the Call Date the right under this
Warrant to acquire twenty-five (25) Exercise Shares will be automatically
cancelled, (2) the Company, in the time and manner required under this Warrant,
will have issued and delivered to the Holder fifty (50) Exercise Shares in
respect of the exercises following receipt of the Call Notice, and (3) the
Holder may, until the end of the Initial Termination Date, exercise this Warrant
for twenty-five (25) Exercise Shares (subject to adjustment as herein provided
and subject to subsequent Call Notices). Subject again to the
provisions of this Section 2.6, the Company may deliver subsequent Call
Notices for any portion of this Warrant for which the Holder shall not have
delivered a Notice of Exercise. Notwithstanding anything to the
contrary set forth in this Warrant, the Company may not deliver a Call Notice
or
require the cancellation of this Warrant (and any such Call Notice shall be
void), unless, from the beginning of the Call Measurement Period through the
Call Date, (i) the Company shall have honored in accordance with the terms
of
this Warrant all Notices of Exercise delivered by 5:00 p.m. (New York
City time) on the Call Date; (ii) there has been no Equity Conditions Failure;
(iii) the Common Stock shall be listed or quoted for trading on an Eligible
Market; (iv) there is a sufficient number of authorized shares of Common Stock
for issuance of all Exercise Shares; and (v) the issuance of the shares shall
not cause a breach of any provision of Section 2.5 herein. The
Company’s right to call the Warrants under this Section 2.6 shall be
exercised ratably among all holders of Company Warrants based on each holder’s
initial purchase of Warrants.
2.7 COMPANY’S
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 of receipt of the Exercise Delivery Documents, 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 Company’s share register or to credit the Holder’s
balance account with DTC for such number of shares of Common Stock to which
the
Holder is entitled upon the Holder’s exercise of this Warrant, 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 Business Day that
the issuance of such shares of Common Stock is not timely effected an amount
equal to 1.5% of the product of (A) the sum of the 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 shares of Common Stock on the
Trading Day immediately preceding the last possible date which the Company
could
have issued such shares of Common Stock to the Holder without violating
Section 2.1. In addition to the foregoing, if within three (3)
Trading Days after the Company’s receipt of the facsimile copy of a Exercise
Notice the Company shall fail to issue and deliver a certificate to the Holder
and register such shares of Common Stock on the Company’s share register or
credit the Holder’s balance account with DTC for the number of shares of Common
Stock to which the Holder is entitled upon the Holder’s exercise hereunder, and
if on or after such Trading Day 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 shares of Common Stock issuable upon such exercise that
the Holder anticipated receiving from the Company (a “Buy-In”),
then the Company shall, within three (3) Business Days after the Holder’s
request and in the Holder’s discretion, either (i) pay cash to the Holder in an
amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the
“Buy-In Price”), at which point the Company’s obligation to
deliver such certificate (and to issue such Exercise Shares) shall terminate,
or
(ii) promptly honor its obligation to deliver to the Holder a certificate or
certificates representing such Exercise Shares and pay cash to the Holder in
an
amount equal to the excess (if any) of the Buy-In Price over the product of
(A)
such number of shares of Common Stock, times (B) the Closing Bid Price on the
date of exercise.
3. COVENANTS
OF THE COMPANY.
3.1 COVENANTS
AS TO EXERCISE SHARES. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented
by this Warrant will, upon issuance, be validly issued and outstanding, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issuance thereof. The Company further covenants and agrees
that the Company will at all times during the Exercise Period, have authorized
and reserved, free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by the
Company Warrants. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit exercise of all of the Company Warrants (an “Authorized Share
Failure”), the Company will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such
purposes. 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 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.
3.2 NO
IMPAIRMENT. The Company will not, by amendment of its Certificate
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
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against
impairment. 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 order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant, and
(iii) shall, so long as any of the Company 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 Company Warrants, 100% of the number of shares of Common Stock
as shall from time to time be necessary to effect the exercise of the Company
Warrants then outstanding (without regard to any limitations on
exercise).
3.3 NOTICES
OF RECORD DATE AND CERTAIN OTHER EVENTS. In the event of any
taking by the Company of a record of the holders of any class of securities
for
the purpose of determining the holders thereof who are entitled to receive
any
dividend or other distribution, the Company shall mail to the Holder, at least
ten (10) days prior to the date on which any such record is to be taken for
the
purpose of such dividend or distribution, a notice specifying such
date. In the event of any voluntary dissolution, liquidation or
winding up of the Company, the Company shall mail to the Holder, at least ten
(10) days prior to the date of the occurrence of any such event, a notice
specifying such date. In the event the Company authorizes or
approves, enters into any agreement contemplating, or solicits stockholder
approval for any Fundamental Transaction the Company shall mail to the Holder,
at least ten (10) days prior to the date of the occurrence of such event, a
notice specifying such date.
4. ADJUSTMENT
OF EXERCISE PRICE AND SHARES.
(A) In
the
event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, stock splits, recapitalizations, reclassifications,
combinations or exchanges of shares, reorganizations, liquidations,
consolidation, acquisition of the Company (whether through merger or acquisition
of substantially all the assets or stock of the Company), or the like, the
number, class and type of shares available under this Warrant in the aggregate
and the Exercise Price shall be correspondingly adjusted to give the Holder
of
this Warrant, on exercise for the same aggregate Exercise Price, the total
number, class, and type of shares or other property as the Holder would have
owned had this Warrant been exercised prior to the event and had the Holder
continued to hold such shares until the event requiring
adjustment. The form of this Warrant need not be changed because of
any adjustment in the number of Exercise Shares subject to this
Warrant.
(B) If
at any
time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise
of
this Warrant) pursuant to a dividend or distribution declared by the Company
(other than a dividend or distribution covered in Section 4(a) above),
shall have received or become entitled to receive, without payment
therefor,
(I) Common
Stock or any shares of stock or other securities which are at any time directly
or indirectly convertible into or exchangeable for Common Stock, or any rights
or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution; or
(II) any
cash
paid or payable, then and in each such case, the Holder hereof will, upon the
exercise of this Warrant, be entitled to receive, in addition to the number
of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of stock and other securities
and
property (including cash in the cases referred to in this clause (II)) which
such Holder would hold on the date of such exercise had such Holder been the
holder of record of such Common Stock as of the date on which holders of Common
Stock received or became entitled to receive such shares or all other additional
stock and other securities and property.
(C) If
at any
time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise
of
this Warrant) pursuant to a dividend or distribution declared by the Company
(other than a dividend or distribution covered in Section 4(A) or
4(B) above), shall have received or become entitled to receive,
without
payment therefor, Common Stock or additional stock or other securities or
property (including cash) by way of spinoff, split-up or similar corporate
rearrangement (a “Spin Distribution”), then and in each such
case:
(I) any
Exercise Price in effect immediately prior to the close of business on the
record date fixed for the Spin Distribution shall be reduced, effective as
of
the close of business on such record date, to a price determined by multiplying
such Exercise Price by a fraction of which (i) the numerator shall be the
Closing Bid Price of the shares of Common Stock on the Trading Day immediately
preceding the record date minus the value of the Spin Distribution (as
determined in good faith by the Company's Board of Directors) applicable to
one
share of Common Stock, and (ii) the denominator shall be the Closing Bid Price
of the shares of Common Stock on the Trading Day on such record date;
and
(II) the
number of Exercise Shares shall be increased to a number of shares equal to
the
number of shares of Common Stock obtainable immediately prior to the close
of
business on the record date fixed for the determination of holders of shares
of
Common Stock entitled to receive the Spin Distribution multiplied by the
reciprocal of the fraction set forth in the immediately preceding paragraph
(a);
provided that in the event that the dividend or distribution is of shares
of common stock ("Other Shares of Common Stock") of a company
whose common shares are traded on an Eligible Market, then the Holder may elect
to receive, in lieu of an increase in the number of Exercise Shares, a warrant
to purchase Other Shares of Common Stock the terms of which shall be identical
to those of this Warrant, except that such warrant shall be exercisable into
the
number of shares of Other Shares of Common Stock that would have been payable
to
the Holder pursuant to the dividend or distribution had the Holder exercised
this Warrant immediately prior to the record date for such dividend or
distribution and with an aggregate exercise price equal to the product of the
amount by which the Exercise Price of this Warrant was decreased with respect
to
the dividend or distribution pursuant to the terms of the immediately preceding
paragraph (I) and the number of Exercise Shares calculated in accordance with
the first part of this paragraph (II).
(D) Upon
the
occurrence of each adjustment pursuant to this Section 4, the Company at
its expense will promptly compute such adjustment in accordance with the terms
of this Warrant and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or
type
of Exercise Shares or other securities issuable upon exercise of this Warrant
(as applicable), describing the transactions giving rise to such adjustments
and
showing in detail the facts upon which such adjustment is based. The
Company will promptly deliver a copy of each such certificate to the Holder
and
to the Transfer Agent.
(E) The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate
by
the Board of Directors of the Company.
5. FRACTIONAL
SHARES. No fractional shares shall be issued upon the exercise of
this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant
may
be aggregated for purposes of determining whether the exercise would result
in
the issuance of any fractional share. If, after aggregation, the
exercise would result in the issuance of a fractional share, the Company shall,
in lieu of issuance of any fractional share, pay the Holder otherwise entitled
to such fraction a sum in cash equal to the product resulting from multiplying
the Weighted Average Price of an Exercise Share on the Exercise Date by such
fraction.
6. FUNDAMENTAL
TRANSACTIONS.
6.1 Upon
any
Fundamental Transaction while this Warrant is outstanding, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each
Exercise Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, upon exercise of this
Warrant (disregarding any limitation on exercise contained herein solely for
the
purpose of such determination), the number of shares of Common Stock of the
Successor Entity, and any additional consideration (the “Alternate
Consideration”) receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder
of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event (disregarding any limitation on exercise
contained herein solely for the purpose of such determination). For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to
the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction. To the extent necessary to effectuate the foregoing
provisions, any Successor Entity shall issue to the Holder a new warrant
consistent with the foregoing provisions and evidencing the Holder’s right to
exercise such warrant into Alternate Consideration. The terms of any
agreement pursuant to which a Fundamental Transaction is effected shall include
terms requiring any such successor or surviving entity to comply with the
provisions of this Section 6 and ensuring that this Warrant (or any such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
6.2 Notwithstanding
the foregoing:
(A) in
the
event of any Fundamental Transaction other than a Public Stock Transaction,
at
the request of the Holder delivered at any time before the 90th day after such
Fundamental Transaction, the Company (or the Successor Entity) shall purchase
this Warrant from the Holder by paying to the Holder, within five (5) Business
Days after such request (or, if later, on the effective date of the Fundamental
Transaction), cash in an amount equal to the Black Scholes Value of the
remaining unexercised portion of this Warrant on the date of such Fundamental
Transaction; and
(B) in
the
event of any Partial Cash Transaction, at the request of the Holder delivered
at
any time before the 90th day after such Partial Cash Transaction, the Company
(or the Successor Entity) shall purchase from the Holder a portion of this
Warrant equal to the Cash Percentage by paying to the Holder, within five (5)
Business Days after such request (or, if later, on the effective date of the
Partial Cash Transaction), cash in an amount equal to the Cash Percentage of
the
Black Scholes Value of the remaining unexercised portion of this Warrant on
the
date of such Partial Cash Transaction.
7. NO
STOCKHOLDER RIGHTS. Other than as provided in Section 3.3
or otherwise herein, this Warrant in and of itself shall not entitle the Holder
to any voting rights or other rights as a stockholder of the
Company. 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 7, 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, unless in each case such information is publicly
available via EDGAR.
8. TRANSFER
OF WARRANT. Subject to applicable laws and the restriction on
transfer set forth in the Stock Purchase Agreement, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall
sign an investment letter in form and substance reasonably satisfactory to
the
Company and its counsel.
9. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company may, on such terms as to indemnity
or otherwise as it may reasonably impose (which shall, in the case of a
mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as this Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of
the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
10. NOTICES,
ETC. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to
the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next Business
Day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit with
a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to
the Company at the address listed on the signature page hereto and to Holder
at
the applicable address set forth on the applicable signature page to
the Stock Purchase Agreement or at such other address as the Company or Holder
may designate by ten (10) days advance written notice to the other parties
hereto.
11. ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement
to
all of the terms and conditions contained herein.
12. DISPUTE
RESOLUTION. In the case of a dispute as to the determination of
the Exercise Price with respect to some or all of this Warrant or the arithmetic
calculation of the Exercise Shares, the Company shall submit the disputed
determinations or arithmetic calculations via facsimile within two (2) Business
Days of receipt of the Notice of Exercise giving rise to such dispute, as the
case may be, to the Holder. If the Holder and the Company are unable
to agree upon such determination or calculation of the Exercise Price or the
Exercise Shares within three (3) Business Days of such disputed determination
or
arithmetic calculation being submitted to the Holder, then the Company shall,
within two (2) Business Days submit via facsimile the disputed determination
of
the Exercise Price to an independent, reputable investment bank selected by
the
Company and approved by the Holder. The Company shall cause at its
expense the investment bank or the accountant, as the case may be, to perform
the determinations or calculations and notify the Company and the Holder of
the
results no later than ten (10) Business Days from the time it receives the
disputed determinations or calculations. Such investment bank's or
accountant's determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
13. 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.
14. REMEDIES,
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 (to the extent that such actual damages exceed the amount of prior
payments hereunder by the Company in respect of such failure). 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.
15. AMENDMENT
OR WAIVER. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and the
Holder. Any term of all of the Company Warrants may be amended or
waived (either generally or in a particular instance and either retroactively
or
prospectively) with the written consent of the Company and holders of Company
Warrants representing at least two-thirds of the number of shares of Common
Stock then subject to outstanding Company Warrants. Notwithstanding
the foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Holder only in a
manner which applies to all Company Warrants in the same fashion and (b) the
number of Exercise Shares subject to this Warrant and the Exercise Price of
this
Warrant may not be amended, and the right to exercise this Warrant may not
be
waived, without the written consent of the Holder. No amendment shall
be effective to the extent that it applies to less than all of the holders
of
the Company Warrants then outstanding. No consideration (other than
the reimbursement of legal fees) shall be offered or paid to any Person to
amend
or consent to a waiver or modification of any provision of any the Company
Warrants unless the same consideration also is offered to all holders of Company
Warrants. The Company shall give prompt written notice to the Holder
of any amendment hereof or waiver hereunder that was effected without the
Holder’s written consent. No waivers of any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to
be,
or construed as, a further or continuing waiver of any such term, condition
or
provision.
16. SEVERABILITY. If
any provision of this Agreement 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 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 Agreement so long as this Agreement
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).
17. COMPLIANCE
WITH SECURITIES LAWS. By acceptance of this
Warrant, the Holder hereby represents, warrants and covenants that any shares
of
stock purchased upon exercise of this Warrant shall be acquired not with a
view
to, or for sale in connection with, any distribution thereof; that Holder has
had such opportunity as Holder has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit Holder
to evaluate the merits and risks of its investment in the Company; that Holder
is able to bear the economic risk of holding this Warrant or the Exercise Shares
for an indefinite period; that Holder is an “accredited investor” as such term
is defined in Rule 501 of Regulation D promulgated under the Securities Act
of
1933, as amended (the “Act”); that Holder understands that
shares of Warrant Stock will not be registered under the Act (unless otherwise
required pursuant to exercise by Holder of the registration rights, if any,
previously granted to Holder) and will be “restricted securities” within the
meaning of Rule 144 promulgated under the Act and that the exemption from
registration under Rule 144 will not be available for at least six months from
the date of exercise of this Warrant, subject to any special treatment by the
SEC for exercise of this Warrant pursuant to Section 2.1; and that all
stock certificates representing Exercise Shares may have affixed thereto a
legend substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B)
AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS
SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. THESE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
CHI-1633921v1 |
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly
authorized officer as of February 15, 2008.
EMCORE
CORPORATION
|
By:
|
Name:
Title:
|
1600
Eubank Road SE
Albuquerque,
NM 87123
|
Facsimile
No.:
Telephone
No.:
|
CHI-1633921v1 |
EXERCISE
NOTICE
TO
BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE COMMON STOCK
|
EMCORE
CORPORATION
|
|
Attn:
[_______________________]
|
|
Fax: [_______________________]
|
The
undersigned holder hereby exercises the right to purchase _________________
of
the shares of Common Stock (“Exercise Shares”) of EMCORE CORPORATION, a
Delaware corporation (the “Company”), evidenced by the attached
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 _________________ Exercise
Shares; and/or
|
|
____________
|
a
“Cashless Exercise” with respect to _______________ Exercise
Shares.
|
2. Payment
of Exercise Price. In the event that the holder has elected a
Cash Exercise with respect to some or all of the Exercise 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. Representation. The
Holder hereby represents, warrants and covenants that the Exercise Shares are
being acquired not with a view to, or for sale in connection with, any
distribution thereof; that the undersigned is able to bear the economic risk
of
holding such Exercise Shares for an indefinite period; that Holder is an
“accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the
“Act”); that Holder understands that such shares will not be
registered under the Act (except as required pursuant to the Registration Rights
Agreement) and will be “restricted securities” within the meaning of Rule 144
promulgated under the Act and that the exemption from registration under Rule
144 will not be available for at least six months from the date of exercise
of
this Warrant, subject to any special treatment by the SEC for exercise of this
Warrant pursuant to Section 2.2; and that all stock certificates
representing such shares may have affixed thereto a legend substantially in
the
following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT, OR (B)
AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS
SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. THESE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
4. Issuance
of Certificate.
Please
issue the certificate for shares
of Common Stock in the name of, and pay any cash for any fractional share
to:
--------------------------------------------------------------------------------
Print
or
type name
--------------------------------------------------------------------------------
Social
Security or other Identifying Number
--------------------------------------------------------------------------------
Street
Address
--------------------------------------------------------------------------------
City
State Zip Code
Please
credit the shares of Common
Stock in accordance with the following DWAC instructions, and pay
any cash for
any fractional share to the address printed above:
Financial
Institution:
Contact
Person:
Phone:
Fax:
Email:
DTC
#:
If
such
number of shares shall not be all the shares purchasable upon the exercise
of
the Warrants evidenced by this Warrant, a new warrant certificate for the
balance of such Warrants remaining unexercised shall be registered in the name
of and delivered to:
Please
insert social security or other identifying
number: ----------------------
----------------------------------------------------------------------------------------------------
(Please
print name and address)
----------------------------------------------------------------------------------------------------
Dated:
(Date)
|
(Signature)
|
(Print
name)
|
CHI-1633921v1 |
ACKNOWLEDGMENT
The
Company hereby acknowledges this
Exercise Notice and hereby directs American Stock Transfer & Trust Company
to issue the above indicated number of shares of Common Stock in accordance
with
the Transfer Agent Instructions dated February [____], 2008 from the Company
and
acknowledged and agreed to by American Stock Transfer & Trust
Company.
EMCORE
CORPORATION
By:
Name:
Title:
CHI-1633921v1 |
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
Name:
|
|
(Please
Print)
|
|
Address:
|
|
(Please
Print)
|
|
Dated: ___________________,
20___
|
|
Holder’s
Signature:
|
|
Holder’s
Address:
|
NOTE: The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
CHI-1633921v1 |