EXHIBIT 10.9
ESCROW AGREEMENT
ESCROW AGREEMENT (this "AGREEMENT"), dated as of March 23, 2001, by and
among Alpha Venture Capital, Inc., a corporation organized and existing under
the laws of the Cook Islands (the "INVESTOR"), Struthers, Inc., a corporation
organized and existing under the laws of the State of Nevada (the "COMPANY") and
Dundee Securities Corporation, a corporation organized and existing under the
laws of Ontario, Canada and a member of the Investment Dealers Association, as
escrow agent (the "ESCROW AGENT").
W I T N E S S E T H:
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WHEREAS, pursuant to a Common Stock Purchase Agreement dated as of
March 23, 2001 between the Company and the Investor (the "PURCHASE AGREEMENT"),
the Company and the Investor desire to have shares (the "ESCROW SHARES") of
common stock, par value $0.001 per share, of the Company (the "COMMON STOCK")
delivered to the Escrow Agent to hold, along with immediately available funds
for the purchase of the Common Stock (the "ESCROW FUNDS"), and the Escrow Agent
has agreed to receive, hold and redeliver the Escrow Shares and the Escrow
Funds, all upon the terms and subject to the conditions hereinafter set forth.
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Upon the execution of this Agreement, the Company shall deliver to
the Escrow Agent the Warrants and 218,000,000 shares of Common Stock in such
denominations as requested by the Investor to enable the Investor to purchase
all Put Shares and Warrant Shares issuable under the Purchase Agreement. On the
first (1st) Trading Day following any Put Date, the Investor shall deliver to
the Escrow Agent the Purchase Price for such Put in immediately available funds.
2. The Escrow Agent shall promptly notify the Company in writing of
receipt of the Purchase Price for the Put Shares for the applicable Put. On the
Put Closing Date (the second (2nd) day following the Put Date), (a) the delivery
of the Purchase Price by the Investor and the certificate for such Put Shares
and the Warrants by the Company shall be deemed to constitute compliance with
the conditions precedent to the purchase and sale of the Common Stock pursuant
to the Purchase Agreement, unless otherwise notified in writing by the Investor
and the Company and (b) upon the joint written directions of the Company and the
Investor, the Escrow Agent shall release the relevant Escrow Funds to or upon
the order of the Company, and shall release the relevant Escrow Shares to the
Investor. If the Company and the Investor jointly notify the Escrow Agent that
on the relevant Put Closing Date that any conditions precedent to the
obligations of the Company or the Investor, as the case may be, under the
Purchase Agreement to be effected that date were not satisfied or waived, then
the Escrow Agent shall return the relevant Escrow Funds to the Investor and the
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relevant Escrow Shares to the Company, unless otherwise directed by the Investor
or the Company. Prior to return of any Escrow Funds to the Investor, the
Investor shall furnish such tax reporting or other information as shall be
appropriate for the Escrow Agent to comply with applicable United States laws.
The Escrow Agent shall deposit all funds received hereunder in an account
controlled by the Escrow Agent.
3. The Escrow Agent shall deposit the Purchase Price with:
Name: Dundee Securities Corporation Location: Suite 3424 Four Bentall
Centre, 1055 Dunsmuir Street, P.O. Box 49207, Vancouver, BC V7X 1K8 Account
Name: Alpha Venture Capital, Inc. / Struthers, Inc. transaction Account No.'s:
860022L and 860022M
4. (a) The certificates for any Escrow Shares delivered to the Escrow
Agent pursuant hereto shall be deposited for safekeeping with the Escrow Agent
(the "ESCROW ACCOUNT"). During the Escrow Period (hereinafter defined), none of
such Escrow Shares deposited in the Escrow Account shall become the property of
the Investor or any other entity or be subject to the debts of the Investor or
any other entity except as expressly provided herein, and the Escrow Agent shall
neither make nor permit any disbursements or deliveries from the Escrow Account
except as expressly provided herein.
(b) The Escrow Period shall begin on the date of the Purchase
Agreement and shall continue until it expires pursuant to the Purchase
Agreement. Notwithstanding the foregoing, if any Escrow Shares remain in the
Escrow Account, all such Escrow Shares then remaining in the Escrow Account
shall be forwarded to the Company's transfer agent for the Common Stock within
five (5) business days thereafter upon written request given to the Escrow Agent
by the Company.
5. The Company shall deliver to the Escrow Agent appropriate written
notice of any extension or amendment to the Agreement.
6. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, the Investor and
the Escrow Agent.
7. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as the Escrow Agent while
acting in good faith, and any act done or omitted by the Escrow Agent pursuant
to the written advice of the Escrow Agent's attorneys-at-law shall be conclusive
evidence of such good faith provided that such acts do not constitute gross
negligence or willful misconduct on the part of the Escrow Agent.
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8. The Escrow Agent is hereby expressly authorized to disregard any and
all written warnings given by any of the parties hereto or by any other person
or corporation, excepting only joint written notices or directions of the
Company and Investor or orders or process of courts of law and is hereby
expressly authorized to comply with and obey such joint written notices or
orders, judgments or decrees of any court. In case the Escrow Agent obeys or
complies with any such joint written notice or order, judgment or decree, the
Escrow Agent shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been entered
without jurisdiction.
9. The Escrow Agent shall not be liable in any respect on account of
the identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Purchase Agreement or any documents or
papers deposited or called for hereunder.
10. In connection with any dispute or conflict that arises between the
Investor and the Company pursuant to this Agreement, the Escrow Agent shall be
entitled to employ such legal counsel and other experts as the Escrow Agent may
deem necessary to advise the Escrow Agent in connection with the Escrow Agent's
duties hereunder, may rely upon the written advice of such counsel, and may pay
such counsel reasonable compensation therefore, which compensation shall be
equally reimbursed by the Investor and the Company.
11. The Escrow Agent's responsibilities as escrow agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the Company and
the Investor; provided that the Escrow Shares and Escrow Funds in control of the
Escrow Agent are delivered prior to the date of the Escrow Agent's resignation
to a substitute escrow agent selected by the Investor or in accordance with the
joint written directions from the Company and the Investor. In the event of any
such resignation, the Investor and the Company shall appoint a mutually
agreeable successor Escrow Agent.
12. If the Escrow Agent reasonably requires other or further
instruments in connection with this Agreement or obligations in respect hereto,
the necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise between
the Company and the Investor with respect to the delivery and/or ownership or
right of possession of the documents, the Escrow Shares or the Escrow Funds held
by the Escrow Agent hereunder, the Escrow Agent shall retain the documents,
Escrow Shares or the Escrow Funds held by it for a period of thirty (30) days so
that the Investor and the Company may settle such dispute by a mutual written
agreement. If no mutual written agreement is agreed upon between the Investor
and the Company during such thirty (30) day period, the Escrow Agent is
authorized and directed in the Escrow Agent's sole discretion (a) to retain in
the Escrow Agent's possession without liability to anyone all or any part of
said documents, the Escrow Shares or the Escrow Funds until such disputes shall
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have been settled either by mutual written agreement of the Investor and the
Escrow Agent or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings or (b) to deliver the Escrow Shares, the Escrow
Funds and any other property and documents held by the Escrow Agent hereunder to
a state or federal court having competent subject matter jurisdiction and
located in the City of New York and State of New York in accordance with the
applicable procedure therefore.
14. The Company and the Investor agree jointly and severally to
indemnify and hold harmless the Escrow Agent and its officers, directors,
employees and agents from any and all claims, liabilities, costs or expenses in
any way arising from or relating to the duties or performance of the Escrow
Agent hereunder other than any such claim, liability, cost or expense to the
extent the same shall (a) have been tax obligations in connection with Escrow
Agent's fee hereunder, or (b) have been determined by final, unappealable
judgment or a judgment from which the time to appeal has been expired of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Escrow Agent. It is understood and agreed that this
indemnification shall survive the termination or discharge of this agreement or
the resignation of the Escrow Agent.
15. Any notice to the Investor or the Company required or permitted
hereunder shall be given in the manner provided in the Section headed "Notices"
in the Purchase Agreement, the terms of which are incorporated herein by
reference. Any notice to the Escrow Agent shall be addressed to Dundee
Securities Corporation, Suite 3424 Four Bentall Centre, 1055 Dunsmuir Street,
P.O. Box 49207, Vancouver, BC V7X 1K8, Attention: Chris Dabbs, Fax No.: (604)
642-0388.
16. By signing this Agreement, the Escrow Agent becomes a party hereto
only for the purpose of this Agreement and the Escrow Agent does not become a
party to the Purchase Agreement. The Company and the Investor have become
parties hereto by their execution and delivery of the Purchase Agreement, as
provided therein.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns and
shall be governed by the laws of the State of New York without giving effect to
principles governing the conflicts of laws. A facsimile transmission of this
instrument signed by the Escrow Agent shall be legal and binding on all parties
hereto.
18. The rights and obligations of any party hereto are not assignable
without the written consent of the other parties hereto. This Agreement
constitutes the entire agreement amongst the parties with respect to the subject
matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
STRUTHERS, INC.
BY:___________________________
Name:
Title:
ALPHA VENTURE CAPITAL, INC.
By: __________________________
Name:
Title:
DUNDEE SECURITIES CORPORATION
By: __________________________
Name:
Title:
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THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
STRUTHERS, INC.
COMMON STOCK PURCHASE WARRANT A
1. ISSUANCE. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by STRUTHERS, INC., a
Nevada corporation (the "Company"), ALPHA VENTURE CAPITAL, INC., or registered
assigns (the "Holder") is hereby granted the right to purchase at any time
commencing March 23, 2001 until 5:00 P.M., New York City time, on March 23, 2006
(the "Expiration Date"), ___________ fully paid and nonassessable shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock") at an
initial exercise price per share of an amount equal to $_____ [the lesser of (a)
ninety percent (90%) of the average of the five (5) closing bid prices following
January 3, 2001 or (b) ninety percent (90%) of the average of the five (5)
closing bid prices following the effective date of the Registration Statement]
(the "Exercise Price"), subject to further adjustment as set forth in Section 6
hereof.
2. EXERCISE OF WARRANTS.
(a) This Warrant is exercisable in whole or in part at the
Exercise Price per share of Common Stock payable hereunder, payable in cash or
by certified or official bank check, or by "cashless exercise," by means of
tendering this Warrant to the Company to receive a number of shares of Common
Stock equal to the difference between the Market Value of the shares of Common
Stock issuable upon exercise of this Warrant and the product of the number of
shares issuable upon exercise and the Exercise Price, divided by the Market
Value Per Share. For example, if Holder receives a warrant to purchase 1,500,000
shares of Common Stock at an Exercise Price of $1.00 and decides to use the
"cashless exercise" method to exercise its option to purchase all 1,500,000
shares at a time when the Company's Common Stock has a Market Value Per Share of
$10.00, Holder would receive 1,350,000 shares of Common Stock upon exercise.
Upon surrender of this Warrant with the annexed Notice of Exercise Form duly
executed, together with payment of the Exercise Price for the shares of Common
Stock purchased, the Holder shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased. For the purposes of
this Section 2, "Market Value" shall be an amount equal to the average closing
bid price of a share of Common Stock for the ten (10) days preceding the
Company's receipt of the Notice of Exercise Form duly executed multiplied by the
number of shares of Common Stock to be issued upon surrender of this Warrant,
and "Market Value Per Share" shall be an amount equal to the average closing bid
price of a share of Common Stock for the ten (10) days preceding the Company's
receipt of the duly executed Notice of Exercise Form.
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(b) For purposes of Rule 144 promulgated under the Securities
Act, it is intended, understood and acknowledged that the Warrant Shares issued
in a cashless exercise transaction shall be deemed to have been acquired by the
Holder and the holding period for the Warrant Shares shall be deemed to have
been commenced on the issue date.
3. RESERVATION OF SHARES. The Company hereby agrees that at
all times during the term of this Warrant there shall be reserved for issuance
upon exercise of this Warrant such number of shares of its Common Stock as shall
be required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. PROTECTION AGAINST DILUTION.
6.1 ADJUSTMENT MECHANISM. If an adjustment of the Exercise
Price is required pursuant to this Section 6, the Holder shall be entitled to
purchase such number of additional shares of Common Stock as will cause (i) the
total number of shares of Common Stock Holder is entitled to purchase pursuant
to this Warrant, multiplied by (ii) the adjusted purchase price per share (the
"Adjusted Exercise Price"), to equal (iii) the total number of shares of Common
Stock Holder is entitled to purchase before adjustment multiplied by the
Exercise Price before adjustment. For example, if Holder receives a warrant to
purchase 1,500,000 shares of Common Stock at an Exercise Price of $1.00, and the
Adjusted Exercise Price is $0.50, Holder will be entitled to receive 3,000,000
shares of Common Stock.
6.2 CAPITAL ADJUSTMENTS. In case of any stock split or reverse
stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original purchase price had been fairly
allocated to the stock resulting from such capital adjustment; and in other
respects the provisions of this Section shall be applied in a fair, equitable
and reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof.
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6.3 ADJUSTMENT FOR SPIN OFF. If, for any reason, prior to the
exercise of this Warrant in full, the Company spins off or otherwise divests
itself of a part of its business or operations or disposes all or of a part of
its assets in a transaction (the "Spin Off") in which the Company does not
receive compensation for such business, operations or assets, but causes
securities of another entity (the "Spin Off Securities") to be issued to
security holders of the Company, then the Company shall cause (i) to be reserved
Spin Off Securities equal to the number thereof which would have been issued if
Holder had exercised its right to purchase all of the remaining Common Stock
available to Holder under this Warrant as of the close of business on the
trading day immediately before the record date (the "Outstanding Warrants") for
determining the amount of the number of Spin Off Securities to be issued to
security holders of the Company (the "Reserved Spin Off Shares"), and (ii) to be
issued to the Holder upon exercise of all or any of the Outstanding Warrants,
such amount of the Reserved Spin Off Shares equal to (x) the Reserved Spin Off
Shares multiplied by (y) a fraction, of which (I) the numerator is the amount of
the Outstanding Warrants then being exercised, and (II) the denominator is the
Outstanding Warrants.
7. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid, return receipt requested. Any such
notice shall be deemed given when so delivered personally, telegraphed, telexed
or sent by facsimile transmission, or, if mailed, two days after the date of
deposit in the United States mails, as follows:
If to the Company:
Struthers, Inc.
1866-B Raoul Wallenberg Blvd.
Charleston, South Carolina 29407
Attention: Douglas W. Beatty, President
Telephone No.: (843) 763-1755
Facsimile No.: (843) 763-1990
If to the Holder:
Alpha Venture Capital, Inc.
Avarua Rarotonga
Cook Islands
Fax No. (242) 356-4147
Attention: Mr. Barry Herman, Director
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Any party may designate another address or person for receipt of notices
hereunder by notice given to the other parties in accordance with this Section.
8. LIQUIDATED DAMAGES. If the Company fails to cause its
transfer agent to deliver to the Holder unlegended certificates representing the
Warrant Shares within ten (10) business days after the Date of Exercise, the
Company shall pay to such Holder, in cash, as liquidated damages and not as a
penalty, $1,000 for each day after such tenth (10th) business day until such
certificates are delivered. Nothing herein shall limit the Holder's right to
pursue actual damages for the Company's failure to deliver certificates
representing shares of Common Stock upon exercise within the period specified
herein and the Holder shall have the right to pursue all remedies available to
it at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief. The exercise of any such rights shall not
prohibit the Holder from seeking to enforce damages pursuant to any other
Section hereof or under applicable law.
9. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the parties
hereto with respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein.
10. GOVERNING LAW. This Warrant shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
11. COUNTERPARTS. This Warrant may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
12. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Warrant as of the day of , 2001.
STRUTHERS, INC.
By: ______________________________
ATTEST:
- -------------------------------
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NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant Certificate dated as of ______________, to purchase
__________shares of the Common Stock, par value $0.001 per share, of Struthers,
Inc. and tenders herewith payment in accordance with Section 1 of said Common
Stock Purchase Warrant.
Please deliver the stock certificate to:
Dated:______________________
By:_________________________
CASH: $ _____________________
CASHLESS EXERCISE: _____________
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THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
STRUTHERS, INC.
COMMON STOCK PURCHASE WARRANT B
1. ISSUANCE. In consideration of good and valuable
consideration, the receipt of which is hereby acknowledged by STRUTHERS, INC., a
Nevada corporation (the "Company"), ALPHA VENTURE CAPITAL, INC., or registered
assigns (the "Holder") is hereby granted the right to purchase at any time
commencing March 23, 2001 until 5:00 P.M., New York City time, on March 23, 2006
(the "Expiration Date"), ___________ fully paid and nonassessable shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock") at an
initial exercise price per share of an amount equal to $_____ [the lesser of (a)
one hundred percent (100%) of the average of the closing bid prices for the five
(5) trading days immediately preceding the date of issuance of this Warrant or
(b) one hundred percent (100%) of the average of the closing bid prices of the
five (5) trading days immediately preceding the date that the Holder may
exercise such portion of the Warrant in accordance with Section 2(b) of this
Warrant] (the "Exercise Price"), subject to further adjustment as set forth in
Section 6 hereof.
2. EXERCISE OF WARRANTS.
(a) This Warrant is exercisable as set forth in clause (b) of
this Section 2 at the Exercise Price per share of Common Stock payable
hereunder, payable in cash or by certified or official bank check, or by
"cashless exercise," by means of tendering this Warrant to the Company to
receive a number of shares of Common Stock equal to the difference between the
Market Value of the shares of Common Stock issuable upon exercise of this
Warrant and the product of the number of shares issuable upon exercise and the
Exercise Price, divided by the Market Value Per Share. For example, if Holder
receives a warrant to purchase 1,500,000 shares of Common Stock at an Exercise
Price of $1.00 and decides to use the "cashless exercise" method to exercise its
option to purchase all 1,500,000 shares at a time when the Company's Common
Stock has a Market Value Per Share of $10.00, Holder would receive 1,350,000
shares of Common Stock upon exercise. Upon surrender of this Warrant with the
annexed Notice of Exercise Form duly executed, together with payment of the
Exercise Price for the shares of Common Stock purchased, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased. For the purposes of this Section 2, "Market Value" shall be an
amount equal to the average closing bid price of a share of Common Stock for the
ten (10) days preceding the Company's receipt of the Notice of Exercise Form
duly executed multiplied by the number of shares of Common Stock to be issued
upon surrender of this Warrant, and "Market Value Per Share" shall be an amount
equal to the average closing bid price of a share of Common Stock for the ten
(10) days preceding the Company's receipt of the duly executed Notice of
Exercise Form.
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(b) Commencing thirty days after the date the registration
statement registering the Warrant Shares has been declared effective by the SEC
(the "Effective Date") and provided that the Company has requested a Put, the
Holder of this Warrant may purchase up to 10% of the Warrant Shares (subject to
adjustment as hereinafter provided) covered by this Warrant and, at the end of
each thirty day period thereafter, provided that the Company has requested a
Put, the Holder may purchase an additional 10% of the Warrant Shares. The
Holder's right to purchase the Warrant Shares pursuant to this clause shall be
cumulative.
(c) For purposes of Rule 144 promulgated under the Securities
Act, it is intended, understood and acknowledged that the Warrant Shares issued
in a cashless exercise transaction shall be deemed to have been acquired by the
Holder and the holding period for the Warrant Shares shall be deemed to have
been commenced on the issue date.
3. RESERVATION OF SHARES. The Company hereby agrees that at
all times during the term of this Warrant there shall be reserved for issuance
upon exercise of this Warrant such number of shares of its Common Stock as shall
be required for issuance upon exercise of this Warrant (the "Warrant Shares").
4. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company
of evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, destroyed or
mutilated Warrant shall thereupon become void.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. PROTECTION AGAINST DILUTION.
6.1 ADJUSTMENT MECHANISM. If an adjustment of the Exercise
Price is required pursuant to this Section 6, the Holder shall be entitled to
purchase such number of additional shares of Common Stock as will cause (i) the
total number of shares of Common Stock Holder is entitled to purchase pursuant
to this Warrant, multiplied by (ii) the adjusted purchase price per share (the
"Adjusted Exercise Price"), to equal (iii) the total number of shares of Common
Stock Holder is entitled to purchase before adjustment multiplied by the
Exercise Price before adjustment. For example, if Holder receives a warrant to
purchase 1,500,000 shares of Common Stock at an Exercise Price of $1.00, and the
Adjusted Exercise Price is $0.50, Holder will be entitled to receive 3,000,000
shares of Common Stock.
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6.2 CAPITAL ADJUSTMENTS. In case of any stock split or reverse
stock split, stock dividend, reclassification of the Common Stock,
recapitalization, merger or consolidation, or like capital adjustment affecting
the Common Stock of the Company, the provisions of this Section 6 shall be
applied as if such capital adjustment event had occurred immediately prior to
the date of this Warrant and the original purchase price had been fairly
allocated to the stock resulting from such capital adjustment; and in other
respects the provisions of this Section shall be applied in a fair, equitable
and reasonable manner so as to give effect, as nearly as may be, to the purposes
hereof.
6.3 ADJUSTMENT FOR SPIN OFF. If, for any reason, prior to the
exercise of this Warrant in full, the Company spins off or otherwise divests
itself of a part of its business or operations or disposes all or of a part of
its assets in a transaction (the "Spin Off") in which the Company does not
receive compensation for such business, operations or assets, but causes
securities of another entity (the "Spin Off Securities") to be issued to
security holders of the Company, then the Company shall cause (i) to be reserved
Spin Off Securities equal to the number thereof which would have been issued if
Holder had exercised its right to purchase all of the remaining Common Stock
available to Holder under this Warrant as of the close of business on the
trading day immediately before the record date (the "Outstanding Warrants") for
determining the amount of the number of Spin Off Securities to be issued to
security holders of the Company (the "Reserved Spin Off Shares"), and (ii) to be
issued to the Holder upon exercise of all or any of the Outstanding Warrants,
such amount of the Reserved Spin Off Shares equal to (x) the Reserved Spin Off
Shares multiplied by (y) a fraction, of which (I) the numerator is the amount of
the Outstanding Warrants then being exercised, and (II) the denominator is the
Outstanding Warrants.
7. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid, return receipt requested. Any such
notice shall be deemed given when so delivered personally, telegraphed, telexed
or sent by facsimile transmission, or, if mailed, two days after the date of
deposit in the United States mails, as follows:
If to the Company:
Struthers, Inc.
1866-B Raoul Wallenberg Blvd.
Charleston, South Carolina 29407
Attention: Douglas W. Beatty, President
Telephone No.: (843) 763-1755
Facsimile No.: (843) 763-1990
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If to the Holder:
Alpha Venture Capital, Inc.
Avarua Rarotonga
Cook Islands
Fax No. (242) 356-4147
Attention: Mr. Barry Herman, Director
Any party may designate another address or person for receipt of notices
hereunder by notice given to the other parties in accordance with this Section.
8. LIQUIDATED DAMAGES. If the Company fails to cause its
transfer agent to deliver to the Holder unlegended certificates representing the
Warrant Shares within ten (10) business days after the Date of Exercise, the
Company shall pay to such Holder, in cash, as liquidated damages and not as a
penalty, $1,000 for each day after such tenth (10th) business day until such
certificates are delivered. Nothing herein shall limit the Holder's right to
pursue actual damages for the Company's failure to deliver certificates
representing shares of Common Stock upon exercise within the period specified
herein and the Holder shall have the right to pursue all remedies available to
it at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief. The exercise of any such rights shall not
prohibit the Holder from seeking to enforce damages pursuant to any other
Section hereof or under applicable law.
9. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This Warrant
may be amended or supplemented only by an instrument in writing signed by the
parties hereto. This Warrant contains the full understanding of the parties
hereto with respect to the subject matter hereof and thereof and there are no
representations, warranties, agreements or understandings other than expressly
contained herein.
10. GOVERNING LAW. This Warrant shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
11. COUNTERPARTS. This Warrant may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
12. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Warrant are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Warrant as of the day of , 2001.
ATTEST: STRUTHERS, INC.
_____________________________ By: _______________________
NOTICE OF EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant Certificate dated as of ______________, to purchase
__________shares of the Common Stock, par value $0.001 per share, of Struthers,
Inc. and tenders herewith payment in accordance with Section 1 of said Common
Stock Purchase Warrant.
Please deliver the stock certificate to:
Dated:______________________
By:_________________________
CASH: $ _____________________
CASHLESS EXERCISE: _____________
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