EXHIBIT 4.12
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN A SECURITIES SUBSCRIPTION
AGREEMENT DATED AS OF DECEMBER __, 2002, NEITHER THIS WARRANT NOR ANY
OF SUCH SHARES MAY BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT
OR, AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE, CUSTOMARY FOR
OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 OR
REGULATION S UNDER SUCH ACT.
Right to Purchase 1,000,000 Shares of
Common Stock, $.001 par value per
share
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Mercator Momentum Fund or its
registered assigns, is entitled to purchase from Famous Fixins, Inc., a New York
corporation (the "Company"), at any time or from time to time during the period
specified in Paragraph 2 hereof, one million (1,000,000) fully paid and
nonassessable shares of the Company's Common Stock, $0.001 par value per share
(the "Common Stock"), AT AN EXERCISE PRICE PER SHARE EQUAL TO $0.01 (THE
"EXERCISE PRICE"). The term "Warrant Shares," as used herein, refers to the
shares of Common Stock purchasable hereunder. The Warrant Shares and the
Exercise Price are subject to adjustment as provided in Paragraph 4 hereof. The
term "Warrants" means this Warrant and the other warrants issued pursuant to
that certain Securities Purchase Agreement, dated December 27, 2002, by and
among the Company and the Buyers listed on the execution page thereof (the
"Securities Purchase Agreement"), including any additional warrants issuable
pursuant to Section 4(l) thereof.
This Warrant is subject to the following terms, provisions, and
conditions:
MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
EXERCISE OF WARRANT. SUBJECT TO THE PROVISIONS HEREOF, THIS
WARRANT MAY BE EXERCISED BY THE HOLDER HEREOF, IN WHOLE OR IN PART, BY THE
SURRENDER OF THIS WARRANT, TOGETHER WITH A COMPLETED EXERCISE AGREEMENT IN THE
FORM ATTACHED HERETO (THE "EXERCISE AGREEMENT"), TO THE COMPANY DURING NORMAL
BUSINESS HOURS ON ANY BUSINESS DAY AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICES
(OR SUCH OTHER OFFICE OR AGENCY OF THE COMPANY AS IT MAY DESIGNATE BY NOTICE TO
THE HOLDER HEREOF), AND UPON (I) PAYMENT TO THE COMPANY IN CASH, BY CERTIFIED OR
OFFICIAL BANK CHECK OR BY WIRE TRANSFER FOR THE ACCOUNT OF THE COMPANY OF THE
EXERCISE PRICE FOR THE WARRANT SHARES SPECIFIED IN THE EXERCISE AGREEMENT OR
(II) IF THE RESALE OF THE WARRANT SHARES BY THE HOLDER IS NOT THEN REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), DELIVERY TO THE COMPANY OF A WRITTEN
NOTICE OF AN ELECTION TO EFFECT A "CASHLESS EXERCISE" (AS DEFINED IN SECTION
11(C) BELOW) FOR THE WARRANT SHARES SPECIFIED IN THE EXERCISE AGREEMENT. THE
WARRANT SHARES SO PURCHASED SHALL BE DEEMED TO BE ISSUED TO THE HOLDER HEREOF OR
SUCH HOLDER'S DESIGNEE, AS THE RECORD OWNER OF SUCH SHARES, AS OF THE CLOSE OF
BUSINESS ON THE DATE ON WHICH THIS WARRANT SHALL HAVE BEEN SURRENDERED, THE
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COMPLETED EXERCISE AGREEMENT SHALL HAVE BEEN DELIVERED, AND PAYMENT SHALL HAVE
BEEN MADE FOR SUCH SHARES AS SET FORTH ABOVE. CERTIFICATES FOR THE WARRANT
SHARES SO PURCHASED, REPRESENTING THE AGGREGATE NUMBER OF SHARES SPECIFIED IN
THE EXERCISE AGREEMENT, SHALL BE DELIVERED TO THE HOLDER HEREOF WITHIN A
REASONABLE TIME, NOT EXCEEDING THREE (3) BUSINESS DAYS, AFTER THIS WARRANT SHALL
HAVE BEEN SO EXERCISED. THE CERTIFICATES SO DELIVERED SHALL BE IN SUCH
DENOMINATIONS AS MAY BE REQUESTED BY THE HOLDER HEREOF AND SHALL BE REGISTERED
IN THE NAME OF SUCH HOLDER OR SUCH OTHER NAME AS SHALL BE DESIGNATED BY SUCH
HOLDER. IF THIS WARRANT SHALL HAVE BEEN EXERCISED ONLY IN PART, THEN, UNLESS
THIS WARRANT HAS EXPIRED, THE COMPANY SHALL, AT ITS EXPENSE, AT THE TIME OF
DELIVERY OF SUCH CERTIFICATES, DELIVER TO THE HOLDER A NEW WARRANT REPRESENTING
THE NUMBER OF SHARES WITH RESPECT TO WHICH THIS WARRANT SHALL NOT THEN HAVE BEEN
EXERCISED. IN ADDITION TO ALL OTHER AVAILABLE REMEDIES AT LAW OR IN EQUITY, IF
THE COMPANY FAILS TO DELIVER CERTIFICATES FOR THE WARRANT SHARES WITHIN THREE
(3) BUSINESS DAYS AFTER THIS WARRANT IS EXERCISED, THEN THE COMPANY SHALL PAY TO
THE HOLDER IN CASH A PENALTY (THE "PENALTY") EQUAL TO 2% OF THE NUMBER OF
WARRANT SHARES THAT THE HOLDER IS ENTITLED TO MULTIPLIED BY THE MARKET PRICE (AS
HEREINAFTER DEFINED) FOR EACH DAY THAT THE COMPANY FAILS TO DELIVER CERTIFICATES
FOR THE WARRANT SHARES. FOR EXAMPLE, IF THE HOLDER IS ENTITLED TO 100,000
WARRANT SHARES AND THE MARKET PRICE IS $2.00, THEN THE COMPANY SHALL PAY TO THE
HOLDER $4,000 FOR EACH DAY THAT THE COMPANY FAILS TO DELIVER CERTIFICATES FOR
THE WARRANT SHARES. THE PENALTY SHALL BE PAID TO THE HOLDER BY THE FIFTH DAY OF
THE MONTH FOLLOWING THE MONTH IN WHICH IT HAS ACCRUED.
Notwithstanding anything in this Warrant to the contrary, in
no event shall the holder of this Warrant be entitled to exercise a number of
Warrants (or portions thereof) in excess of the number of Warrants (or portions
thereof) upon exercise of which the sum of (i) the number of shares of Common
Stock beneficially owned by the holder and its affiliates (other than shares of
Common Stock which may be deemed beneficially owned through the ownership of the
unexercised Warrants and the unexercised or unconverted portion of any other
securities of the Company (including the Debentures (as defined in the
Securities Purchase Agreement)) subject to a limitation on conversion or
exercise analogous to the limitation contained herein) and (ii) the number of
shares of Common Stock issuable upon exercise of the Warrants (or portions
thereof) with respect to which the determination described herein is being made,
would result in beneficial ownership by the holder and its affiliates of more
than 4.9% of the outstanding shares of Common Stock. For purposes of the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13D-G thereunder, except as otherwise provided in clause
(i) of the preceding sentence. The holder of this Warrant may waive the
limitations set forth herein by sixty-one (61) days written notice to the
Company. Notwithstanding anything to the contrary contained herein, the
limitation on exercise of this Warrant set forth herein may not be amended
without (i) the written consent of the holder hereof and the Company and (ii)
the approval of a majority of shareholders of the Company.
MANDATORY EXERCISE RIGHT. THE COMPANY SHALL BE ENTITLED, ON
ANY DAY (THE "CALCULATION DATE") ON WHICH THE CLOSING PRICE (AS DEFINED BELOW)
OF THE COMMON STOCK FOR THIRTY (30) CONSECUTIVE TRADING DAYS (AS DEFINED BELOW)
IS EQUAL TO OR GREATER THAN $3.00, TO DELIVER A WRITTEN NOTICE (THE "MANDATORY
EXERCISE NOTICE") TO THE HOLDER REQUIRING SUCH HOLDER TO EXERCISE THIS WARRANT
IN ACCORDANCE WITH SECTION 1 HEREOF AT ANY TIME DURING A THIRTY (30) TRADING DAY
PERIOD FOLLOWING THE DATE OF SUCH MANDATORY EXERCISE NOTICE (THE "EXERCISE
DATE"); PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE SUCH RIGHT IF AND ONLY IF
(X) FOR A PERIOD OF THIRTY (30) CONSECUTIVE TRADING DAYS PRIOR TO THE
CALCULATION DATE AND (Y) AT ALL TIMES DURING SUCH THIRTY (30) CONSECUTIVE
TRADING DAY PERIOD AND CONTINUING THROUGH THE EXERCISE DATE, THE WARRANT SHARES
ISSUABLE UPON EXERCISE OF THE WARRANTS ARE (I) AUTHORIZED AND RESERVED FOR
ISSUANCE, (II) REGISTERED FOR RESALE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, BY THE HOLDER OF THIS WARRANT (OR MAY OTHERWISE BE RESOLD PUBLICLY
WITHOUT RESTRICTION) AND SALES OF THE WARRANT SHARES MAY BE MADE CONTINUOUSLY
THEREUNDER DURING SUCH TIME PERIODS, AND (III) LISTED FOR TRADING ON EACH
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PRINCIPAL EXCHANGE OR MARKET ON WHICH THE SHARES OF COMMON STOCK OF THE COMPANY
WERE THEN TRADED; AND PROVIDED, FURTHER, THAT THE HOLDER SHALL BE REQUIRED TO
EXERCISE ONLY THAT PORTION OF THIS WARRANT THAT IS EQUAL TO TEN PERCENT (10%) OF
THE AVERAGE TRADING VOLUME OF THE COMMON STOCK OVER THE THIRTY (30) CONSECUTIVE
TRADING DAYS IMMEDIATELY PRECEDING THE CALCULATION DATE. THE COMPANY MAY NOT
DELIVER MORE THAN ONE MANDATORY EXERCISE NOTICE DURING ANY THIRTY (30) TRADING
DAY PERIOD. NOTHING IN THIS SECTION 2(B) SHALL PROHIBIT EXERCISE OF THE WARRANT
OTHERWISE PERMITTED PURSUANT TO THE TERMS OF THIS WARRANT DURING THE PENDENCY OF
ANY MANDATORY EXERCISE NOTICE. "TRADING DAY" SHALL MEAN ANY DAY ON WHICH THE
COMMON STOCK IS TRADED FOR ANY PERIOD ON THE OVER-THE-COUNTER BULLETIN BOARD
(THE "OTCBB"), OR ON THE PRINCIPAL SECURITIES EXCHANGE OR OTHER SECURITIES
MARKET ON WHICH THE COMMON STOCK IS THEN BEING TRADED. "CLOSING PRICE," AS OF
ANY DATE, (I) MEANS THE LAST REPORTED SALE PRICE FOR THE SHARES OF COMMON STOCK
ON THE OTCBB AS REPORTED BY BLOOMBERG FINANCIAL MARKETS OR OTHER SIMILAR
RELIABLE REPORTING SERVICE AS DESIGNATED BY THE HOLDER ("BLOOMBERG"), OR (II) IF
THE OTCBB IS NOT THE PRINCIPAL TRADING MARKET FOR THE SHARES OF COMMON STOCK,
THE LAST REPORTED SALE PRICE ON THE PRINCIPAL TRADING MARKET FOR THE COMMON
STOCK AS REPORTED BY BLOOMBERG, OR (III) IF THE LAST REPORTED SALE PRICE CANNOT
BE DETERMINED AS OF SUCH DATE ON ANY OF THE FOREGOING BASES, THE CLOSING PRICE
SHALL BE THE FAIR MARKET VALUE AS REASONABLY DETERMINED IN GOOD FAITH BY THE
BOARD OF DIRECTORS OF THE COMPANY OR, AT THE OPTION OF A MAJORITY-IN-INTEREST OF
THE HOLDERS OF THE OUTSTANDING WARRANTS, BY AN INDEPENDENT INVESTMENT BANK OF
NATIONALLY RECOGNIZED STANDING IN THE VALUATION OF BUSINESSES SIMILAR TO THE
BUSINESS OF THE CORPORATION.
PERIOD OF EXERCISE. This Warrant is exercisable at any time or from
time to time on or after the date on which this Warrant is issued and delivered
pursuant to the terms of the Securities Purchase Agreement and before 6:00 p.m.,
New York, New York time on the fifth (5th) anniversary of the date of issuance
(the "Exercise Period").
CERTAIN AGREEMENTS OF THE COMPANY. The Company hereby covenants and agrees as
follows:
SHARES TO BE FULLY PAID. ALL WARRANT SHARES WILL, UPON
ISSUANCE IN ACCORDANCE WITH THE TERMS OF THIS WARRANT, BE VALIDLY ISSUED, FULLY
PAID, AND NONASSESSABLE AND FREE FROM ALL TAXES, LIENS, AND CHARGES WITH RESPECT
TO THE ISSUE THEREOF.
RESERVATION OF SHARES. DURING THE EXERCISE PERIOD, THE COMPANY
SHALL AT ALL TIMES HAVE AUTHORIZED, AND RESERVED FOR THE PURPOSE OF ISSUANCE
UPON EXERCISE OF THIS WARRANT, A SUFFICIENT NUMBER OF SHARES OF COMMON STOCK TO
PROVIDE FOR THE EXERCISE OF THIS WARRANT.
LISTING. THE COMPANY SHALL PROMPTLY SECURE THE LISTING OF THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANT UPON EACH NATIONAL
SECURITIES EXCHANGE OR AUTOMATED QUOTATION SYSTEM, IF ANY, UPON WHICH SHARES OF
COMMON STOCK ARE THEN LISTED (SUBJECT TO OFFICIAL NOTICE OF ISSUANCE UPON
EXERCISE OF THIS WARRANT) AND SHALL MAINTAIN, SO LONG AS ANY OTHER SHARES OF
COMMON STOCK SHALL BE SO LISTED, SUCH LISTING OF ALL SHARES OF COMMON STOCK FROM
TIME TO TIME ISSUABLE UPON THE EXERCISE OF THIS WARRANT; AND THE COMPANY SHALL
SO LIST ON EACH NATIONAL SECURITIES EXCHANGE OR AUTOMATED QUOTATION SYSTEM, AS
THE CASE MAY BE, AND SHALL MAINTAIN SUCH LISTING OF, ANY OTHER SHARES OF CAPITAL
STOCK OF THE COMPANY ISSUABLE UPON THE EXERCISE OF THIS WARRANT IF AND SO LONG
AS ANY SHARES OF THE SAME CLASS SHALL BE LISTED ON SUCH NATIONAL SECURITIES
EXCHANGE OR AUTOMATED QUOTATION SYSTEM.
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CERTAIN ACTIONS PROHIBITED. THE COMPANY WILL NOT, BY AMENDMENT
OF ITS CHARTER 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 BY IT HEREUNDER, 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 REASONABLY BE REQUESTED BY THE HOLDER OF THIS
WARRANT IN ORDER TO PROTECT THE EXERCISE PRIVILEGE OF THE HOLDER OF THIS WARRANT
AGAINST DILUTION OR OTHER IMPAIRMENT, CONSISTENT WITH THE TENOR AND PURPOSE OF
THIS WARRANT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY (I)
WILL 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, AND (II)
WILL 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.
SUCCESSORS AND ASSIGNS. THIS WARRANT WILL BE BINDING UPON ANY
ENTITY SUCCEEDING TO THE COMPANY BY MERGER, CONSOLIDATION, OR ACQUISITION OF ALL
OR SUBSTANTIALLY ALL THE COMPANY'S ASSETS.
ANTIDILUTION PROVISIONS. During the Exercise Period, the Exercise Price
and the number of Warrant Shares shall be subject to adjustment from time to
time as provided in this Paragraph 4.
In the event that any adjustment of the Exercise Price as required
herein results in a fraction of a cent, such Exercise Price shall be rounded up
to the nearest cent.
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES UPON
ISSUANCE OF COMMON STOCK. EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPHS 4(C) AND
4(E) HEREOF, IF AND WHENEVER ON OR AFTER THE DATE OF ISSUANCE OF THIS WARRANT,
THE COMPANY ISSUES OR SELLS, OR IN ACCORDANCE WITH PARAGRAPH 4(B) HEREOF IS
DEEMED TO HAVE ISSUED OR SOLD, ANY SHARES OF COMMON STOCK FOR NO CONSIDERATION
OR FOR A CONSIDERATION PER SHARE (BEFORE DEDUCTION OF REASONABLE EXPENSES OR
COMMISSIONS OR UNDERWRITING DISCOUNTS OR ALLOWANCES IN CONNECTION THEREWITH)
LESS THAN THE MARKET PRICE ON THE DATE OF ISSUANCE (A "DILUTIVE ISSUANCE"), THEN
IMMEDIATELY UPON THE DILUTIVE ISSUANCE, THE EXERCISE PRICE WILL BE REDUCED TO A
PRICE DETERMINED BY MULTIPLYING THE EXERCISE PRICE IN EFFECT IMMEDIATELY PRIOR
TO THE DILUTIVE ISSUANCE BY A FRACTION, (I) THE NUMERATOR OF WHICH IS AN AMOUNT
EQUAL TO THE SUM OF (X) THE NUMBER OF SHARES OF COMMON STOCK ACTUALLY
OUTSTANDING IMMEDIATELY PRIOR TO THE DILUTIVE ISSUANCE, PLUS (Y) THE QUOTIENT OF
THE AGGREGATE CONSIDERATION, CALCULATED AS SET FORTH IN PARAGRAPH 4(B) HEREOF,
RECEIVED BY THE COMPANY UPON SUCH DILUTIVE ISSUANCE DIVIDED BY THE MARKET PRICE
IN EFFECT IMMEDIATELY PRIOR TO THE DILUTIVE ISSUANCE, AND (II) THE DENOMINATOR
OF WHICH IS THE TOTAL NUMBER OF SHARES OF COMMON STOCK DEEMED OUTSTANDING (AS
DEFINED BELOW) IMMEDIATELY AFTER THE DILUTIVE ISSUANCE.
EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. FOR PURPOSES OF
DETERMINING THE ADJUSTED EXERCISE PRICE UNDER PARAGRAPH 4(A) HEREOF, THE
FOLLOWING WILL BE APPLICABLE:
ISSUANCE OF RIGHTS OR OPTIONS. If the Company in any manner issues or
grants any warrants, rights or options, whether or not immediately exercisable,
to subscribe for or to purchase Common Stock or other securities convertible
into or exchangeable for Common Stock ("Convertible Securities") (such warrants,
rights and options to purchase Common Stock or Convertible Securities are
hereinafter referred to as "Options") and the price per share for which Common
Stock is issuable upon the exercise of such Options is less than the Market
Price on the date of issuance or grant of such Options, then the maximum total
number of shares of Common Stock issuable upon the exercise of all such Options
will, as of the date of the issuance or grant of such Options, be deemed to be
outstanding and to have been issued and sold by the Company for such price per
share. For purposes of the preceding sentence, the "price per share for which
Common Stock is issuable upon the exercise of such Options" is determined by
dividing (i) the total amount, if any, received or receivable by the Company as
consideration for the issuance or granting of all such Options, plus the minimum
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aggregate amount of additional consideration, if any, payable to the Company
upon the exercise of all such Options, plus, in the case of Convertible
Securities issuable upon the exercise of such Options, the minimum aggregate
amount of additional consideration payable upon the conversion or exchange
thereof at the time such Convertible Securities first become convertible or
exchangeable, by (ii) the maximum total number of shares of Common Stock
issuable upon the exercise of all such Options (assuming full conversion of
Convertible Securities, if applicable). No further adjustment to the Exercise
Price will be made upon the actual issuance of such Common Stock upon the
exercise of such Options or upon the conversion or exchange of Convertible
Securities issuable upon exercise of such Options.
ISSUANCE OF CONVERTIBLE SECURITIES. If the Company in any manner issues or
sells any Convertible Securities, whether or not immediately convertible (other
than where the same are issuable upon the exercise of Options) and the price per
share for which Common Stock is issuable upon such conversion or exchange is
less than the Market Price on the date of issuance, then the maximum total
number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities will, as of the date of the issuance of such
Convertible Securities, be deemed to be outstanding and to have been issued and
sold by the Company for such price per share. For the purposes of the preceding
sentence, the "price per share for which Common Stock is issuable upon such
conversion or exchange" is determined by dividing (i) the total amount, if any,
received or receivable by the Company as consideration for the issuance or sale
of all such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the conversion or
exchange thereof at the time such Convertible Securities first become
convertible or exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the conversion or exchange of all such Convertible
Securities. No further adjustment to the Exercise Price will be made upon the
actual issuance of such Common Stock upon conversion or exchange of such
Convertible Securities.
CHANGE IN OPTION PRICE OR CONVERSION RATE. If there is a change at any time
in (i) the amount of additional consideration payable to the Company upon the
exercise of any Options; (ii) the amount of additional consideration, if any,
payable to the Company upon the conversion or exchange of any Convertible
Securities; or (iii) the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock (other than under or by reason
of provisions designed to protect against dilution), the Exercise Price in
effect at the time of such change will be readjusted to the Exercise Price which
would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional consideration
or changed conversion rate, as the case may be, at the time initially granted,
issued or sold.
TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE SECURITIES. If, in
any case, the total number of shares of Common Stock issuable upon exercise of
any Option or upon conversion or exchange of any Convertible Securities is not,
in fact, issued and the rights to exercise such Option or to convert or exchange
such Convertible Securities shall have expired or terminated, the Exercise Price
then in effect will be readjusted to the Exercise Price which would have been in
effect at the time of such expiration or termination had such Option or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual number of shares
of Common Stock issued upon exercise or conversion thereof), never been issued.
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CALCULATION OF CONSIDERATION RECEIVED. If any Common Stock, Options or
Convertible Securities are issued, granted or sold for cash, the consideration
received therefore for purposes of this Warrant will be the amount received by
the Company therefore, before deduction of reasonable commissions, underwriting
discounts or allowances or other reasonable expenses paid or incurred by the
Company in connection with such issuance, grant or sale. In case any Common
Stock, Options or Convertible Securities are issued or sold for a consideration
part or all of which shall be other than cash, the amount of the consideration
other than cash received by the Company will be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Company will be the Market
Price thereof as of the date of receipt. In case any Common Stock, Options or
Convertible Securities are issued in connection with any acquisition, merger or
consolidation in which the Company is the surviving corporation, the amount of
consideration therefore will be deemed to be the fair value of such portion of
the net assets and business of the non-surviving corporation as is attributable
to such Common Stock, Options or Convertible Securities, as the case may be. The
fair value of any consideration other than cash or securities will be determined
in good faith by the Board of Directors of the Company.
EXCEPTIONS TO ADJUSTMENT OF EXERCISE PRICE. No adjustment to the Exercise
Price will be made (i) upon the exercise of any warrants, options or convertible
securities granted, issued and outstanding on the date of issuance of this
Warrant; (ii) upon the grant or exercise of any stock or options which may
hereafter be granted or exercised under any employee benefit plan, stock option
plan or restricted stock plan of the Company now existing or to be implemented
in the future, so long as the issuance of such stock or options is approved by a
majority of the independent members of the Board of Directors of the Company or
a majority of the members of a committee of independent directors established
for such purpose; or (iii) upon the exercise of the Warrants.
SUBDIVISION OR COMBINATION OF COMMON STOCK. IF THE COMPANY AT
ANY TIME SUBDIVIDES (BY ANY STOCK SPLIT, STOCK DIVIDEND, RECAPITALIZATION,
REORGANIZATION, RECLASSIFICATION OR OTHERWISE) THE SHARES OF COMMON STOCK
ACQUIRABLE HEREUNDER INTO A GREATER NUMBER OF SHARES, THEN, AFTER THE DATE OF
RECORD FOR EFFECTING SUCH SUBDIVISION, THE EXERCISE PRICE IN EFFECT IMMEDIATELY
PRIOR TO SUCH SUBDIVISION WILL BE PROPORTIONATELY REDUCED. IF THE COMPANY AT ANY
TIME COMBINES (BY REVERSE STOCK SPLIT, RECAPITALIZATION, REORGANIZATION,
RECLASSIFICATION OR OTHERWISE) THE SHARES OF COMMON STOCK ACQUIRABLE HEREUNDER
INTO A SMALLER NUMBER OF SHARES, THEN, AFTER THE DATE OF RECORD FOR EFFECTING
SUCH COMBINATION, THE EXERCISE PRICE IN EFFECT IMMEDIATELY PRIOR TO SUCH
COMBINATION WILL BE PROPORTIONATELY INCREASED.
ADJUSTMENT IN NUMBER OF SHARES. UPON EACH ADJUSTMENT OF THE
EXERCISE PRICE PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH 4, THE NUMBER OF
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT SHALL BE ADJUSTED
BY MULTIPLYING A NUMBER EQUAL TO THE EXERCISE PRICE IN EFFECT IMMEDIATELY PRIOR
TO SUCH ADJUSTMENT BY THE NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS WARRANT IMMEDIATELY PRIOR TO SUCH ADJUSTMENT AND DIVIDING THE
PRODUCT SO OBTAINED BY THE ADJUSTED EXERCISE PRICE.
CONSOLIDATION, MERGER OR SALE. IN CASE OF ANY CONSOLIDATION OF
THE COMPANY WITH, OR MERGER OF THE COMPANY INTO ANY OTHER CORPORATION, OR IN
CASE OF ANY SALE OR CONVEYANCE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE
COMPANY OTHER THAN IN CONNECTION WITH A PLAN OF COMPLETE LIQUIDATION OF THE
COMPANY, THEN AS A CONDITION OF SUCH CONSOLIDATION, MERGER OR SALE OR
CONVEYANCE, ADEQUATE PROVISION WILL BE MADE WHEREBY THE HOLDER OF THIS WARRANT
WILL HAVE THE RIGHT TO ACQUIRE AND RECEIVE UPON EXERCISE OF THIS WARRANT IN LIEU
OF THE SHARES OF COMMON STOCK IMMEDIATELY THERETOFORE ACQUIRABLE UPON THE
EXERCISE OF THIS WARRANT, SUCH SHARES OF STOCK, SECURITIES OR ASSETS AS MAY BE
ISSUED OR PAYABLE WITH RESPECT TO OR IN EXCHANGE FOR THE NUMBER OF SHARES OF
COMMON STOCK IMMEDIATELY THERETOFORE ACQUIRABLE AND RECEIVABLE UPON EXERCISE OF
THIS WARRANT HAD SUCH CONSOLIDATION, MERGER OR SALE OR CONVEYANCE NOT TAKEN
PLACE. IN ANY SUCH CASE, THE COMPANY WILL MAKE APPROPRIATE PROVISION TO INSURE
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THAT THE PROVISIONS OF THIS PARAGRAPH 4 HEREOF WILL THEREAFTER BE APPLICABLE AS
NEARLY AS MAY BE IN RELATION TO ANY SHARES OF STOCK OR SECURITIES THEREAFTER
DELIVERABLE UPON THE EXERCISE OF THIS WARRANT. THE COMPANY WILL NOT EFFECT ANY
CONSOLIDATION, MERGER OR SALE OR CONVEYANCE UNLESS PRIOR TO THE CONSUMMATION
THEREOF, THE SUCCESSOR CORPORATION (IF OTHER THAN THE COMPANY) ASSUMES BY
WRITTEN INSTRUMENT THE OBLIGATIONS UNDER THIS PARAGRAPH 4 AND THE OBLIGATIONS TO
DELIVER TO THE HOLDER OF THIS WARRANT SUCH SHARES OF STOCK, SECURITIES OR ASSETS
AS, IN ACCORDANCE WITH THE FOREGOING PROVISIONS, THE HOLDER MAY BE ENTITLED TO
ACQUIRE.
DISTRIBUTION OF ASSETS. IN CASE THE COMPANY SHALL DECLARE OR
MAKE ANY DISTRIBUTION OF ITS ASSETS (INCLUDING CASH) TO HOLDERS OF COMMON STOCK
AS A PARTIAL LIQUIDATING DIVIDEND, BY WAY OF RETURN OF CAPITAL OR OTHERWISE,
THEN, AFTER THE DATE OF RECORD FOR DETERMINING SHAREHOLDERS ENTITLED TO SUCH
DISTRIBUTION, BUT PRIOR TO THE DATE OF DISTRIBUTION, THE HOLDER OF THIS WARRANT
SHALL BE ENTITLED UPON EXERCISE OF THIS WARRANT FOR THE PURCHASE OF ANY OR ALL
OF THE SHARES OF COMMON STOCK SUBJECT HERETO, TO RECEIVE THE AMOUNT OF SUCH
ASSETS WHICH WOULD HAVE BEEN PAYABLE TO THE HOLDER HAD SUCH HOLDER BEEN THE
HOLDER OF SUCH SHARES OF COMMON STOCK ON THE RECORD DATE FOR THE DETERMINATION
OF SHAREHOLDERS ENTITLED TO SUCH DISTRIBUTION.
NOTICE OF ADJUSTMENT. UPON THE OCCURRENCE OF ANY EVENT WHICH
REQUIRES ANY ADJUSTMENT OF THE EXERCISE PRICE, THEN, AND IN EACH SUCH CASE, THE
COMPANY SHALL GIVE NOTICE THEREOF TO THE HOLDER OF THIS WARRANT, WHICH NOTICE
SHALL STATE THE EXERCISE PRICE RESULTING FROM SUCH ADJUSTMENT AND THE INCREASE
OR DECREASE IN THE NUMBER OF WARRANT SHARES PURCHASABLE AT SUCH PRICE UPON
EXERCISE, SETTING FORTH IN REASONABLE DETAIL THE METHOD OF CALCULATION AND THE
FACTS UPON WHICH SUCH CALCULATION IS BASED. THE CHIEF FINANCIAL OFFICER OF THE
COMPANY SHALL CERTIFY SUCH CALCULATION.
MINIMUM ADJUSTMENT OF EXERCISE PRICE. NO ADJUSTMENT OF THE
EXERCISE PRICE SHALL BE MADE IN AN AMOUNT OF LESS THAN 1% OF THE EXERCISE PRICE
IN EFFECT AT THE TIME SUCH ADJUSTMENT IS OTHERWISE REQUIRED TO BE MADE, BUT ANY
SUCH LESSER ADJUSTMENT SHALL BE CARRIED FORWARD AND SHALL BE MADE AT THE TIME
AND TOGETHER WITH THE NEXT SUBSEQUENT ADJUSTMENT WHICH, TOGETHER WITH ANY
ADJUSTMENTS SO CARRIED FORWARD, SHALL AMOUNT TO NOT LESS THAN 1% OF SUCH
EXERCISE PRICE.
NO FRACTIONAL SHARES. NO FRACTIONAL SHARES OF COMMON STOCK ARE
TO BE ISSUED UPON THE EXERCISE OF THIS WARRANT, BUT THE COMPANY SHALL PAY A CASH
ADJUSTMENT IN RESPECT OF ANY FRACTIONAL SHARE WHICH WOULD OTHERWISE BE ISSUABLE
IN AN AMOUNT EQUAL TO THE SAME FRACTION OF THE MARKET PRICE OF A SHARE OF COMMON
STOCK ON THE DATE OF SUCH EXERCISE.
OTHER NOTICES. IN CASE AT ANY TIME:
-------------
the Company shall declare any dividend upon the Common Stock payable in
shares of stock of any class or make any other distribution (including dividends
or distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
the Company shall offer for subscription pro rata to the holders of the
Common Stock any additional shares of stock of any class or other rights;
there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into, or sale of all or substantially all its assets to, another
corporation or entity; or
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there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, in each such case, the Company shall give to the holder of this Warrant
(a) notice of the date on which the books of the Company shall close or a record
shall be taken for determining the holders of Common Stock entitled to receive
any such dividend, distribution, or subscription rights or for determining the
holders of Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation thereof by the
Company) when the same shall take place. Such notice shall also specify the date
on which the holders of Common Stock shall be entitled to receive such dividend,
distribution, or subscription rights or to exchange their Common Stock for stock
or other securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least 30 days
prior to the record date or the date on which the Company's books are closed in
respect thereto. Failure to give any such notice or any defect therein shall not
affect the validity of the proceedings referred to in clauses (i), (ii), (iii)
and (iv) above.
CERTAIN EVENTS. IF ANY EVENT OCCURS OF THE TYPE CONTEMPLATED
BY THE ADJUSTMENT PROVISIONS OF THIS PARAGRAPH 4 BUT NOT EXPRESSLY PROVIDED FOR
BY SUCH PROVISIONS, THE COMPANY WILL GIVE NOTICE OF SUCH EVENT AS PROVIDED IN
PARAGRAPH 4(G) HEREOF, AND THE COMPANY'S BOARD OF DIRECTORS WILL MAKE AN
APPROPRIATE ADJUSTMENT IN THE EXERCISE PRICE AND THE NUMBER OF SHARES OF COMMON
STOCK ACQUIRABLE UPON EXERCISE OF THIS WARRANT SO THAT THE RIGHTS OF THE HOLDER
SHALL BE NEITHER ENHANCED NOR DIMINISHED BY SUCH EVENT.
CERTAIN DEFINITIONS.
"COMMON STOCK DEEMED OUTSTANDING" shall mean the
number of shares of Common Stock actually outstanding (not
including shares of Common Stock held in the treasury of the Company), plus (x)
pursuant to Paragraph 4(b)(i) hereof, the maximum total number of shares of
Common Stock issuable upon the exercise of Options, as of the date of such
issuance or grant of such Options, if any, and (y) pursuant to Paragraph
4(b)(ii) hereof, the maximum total number of shares of Common Stock issuable
upon conversion or exchange of Convertible Securities, as of the date of
issuance of such Convertible Securities, if any.
"MARKET PRICE," as of any date, (i) means the average
of the last reported sale prices for the shares of
Common Stock on the OTCBB for the five (5) Trading Days immediately preceding
such date as reported by Bloomberg, or (ii) if the OTCBB is not the principal
trading market for the shares of Common Stock, the average of the last reported
sale prices on the principal trading market for the Common Stock during the same
period as reported by Bloomberg, or (iii) if market value cannot be calculated
as of such date on any of the foregoing bases, the Market Price shall be the
fair market value as reasonably determined in good faith by (a) the Board of
Directors of the Company or, at the option of a majority-in-interest of the
holders of the outstanding Warrants by (b) an independent investment bank of
nationally recognized standing in the valuation of businesses similar to the
business of the corporation. The manner of determining the Market Price of the
Common Stock set forth in the foregoing definition shall apply with respect to
any other security in respect of which a determination as to market value must
be made hereunder.
"COMMON STOCK," for purposes of this Paragraph 4,
includes the Common Stock, par value $0.001 per share,
and any additional class of stock of the Company having no preference as to
dividends or distributions on liquidation, provided that the shares purchasable
pursuant to this Warrant shall include only shares of Common Stock, par value
76
$0.001 per share, in respect of which this Warrant is exercisable, or shares
resulting from any subdivision or combination of such Common Stock, or in the
case of any reorganization, reclassification, consolidation, merger, or sale of
the character referred to in Paragraph 4(e) hereof, the stock or other
securities or property provided for in such Paragraph.
ISSUE TAX. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of this Warrant.
NO RIGHTS OR LIABILITIES AS A SHAREHOLDER. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
TRANSFER, EXCHANGE, AND REPLACEMENT OF WARRANT.
RESTRICTION ON TRANSFER. THIS WARRANT AND THE RIGHTS GRANTED
TO THE HOLDER HEREOF ARE TRANSFERABLE, IN WHOLE OR IN PART, UPON SURRENDER OF
THIS WARRANT, TOGETHER WITH A PROPERLY EXECUTED ASSIGNMENT IN THE FORM ATTACHED
HERETO, AT THE OFFICE OR AGENCY OF THE COMPANY REFERRED TO IN PARAGRAPH 7(E)
BELOW, PROVIDED, HOWEVER, THAT ANY TRANSFER OR ASSIGNMENT SHALL BE SUBJECT TO
THE CONDITIONS SET FORTH IN PARAGRAPH 7(F) HEREOF AND TO THE APPLICABLE
PROVISIONS OF THE SECURITIES PURCHASE AGREEMENT. UNTIL DUE PRESENTMENT FOR
REGISTRATION OF TRANSFER ON THE BOOKS OF THE COMPANY, THE COMPANY MAY TREAT THE
REGISTERED HOLDER HEREOF AS THE OWNER AND HOLDER HEREOF FOR ALL PURPOSES, AND
THE COMPANY SHALL NOT BE AFFECTED BY ANY NOTICE TO THE CONTRARY. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE REGISTRATION RIGHTS DESCRIBED IN
PARAGRAPH 8 ARE ASSIGNABLE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THAT
CERTAIN REGISTRATION RIGHTS AGREEMENT OF EVEN DATE HEREWITH BY AND AMONG THE
COMPANY AND THE OTHER SIGNATORIES THERETO (THE "REGISTRATION RIGHTS AGREEMENT").
WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. THIS WARRANT
IS EXCHANGEABLE, UPON THE SURRENDER HEREOF BY THE HOLDER HEREOF AT THE OFFICE OR
AGENCY OF THE COMPANY REFERRED TO IN PARAGRAPH 7(E) BELOW, FOR NEW WARRANTS OF
LIKE TENOR REPRESENTING IN THE AGGREGATE THE RIGHT TO PURCHASE THE NUMBER OF
SHARES OF COMMON STOCK WHICH MAY BE PURCHASED HEREUNDER, EACH OF SUCH NEW
WARRANTS TO REPRESENT THE RIGHT TO PURCHASE SUCH NUMBER OF SHARES AS SHALL BE
DESIGNATED BY THE HOLDER HEREOF AT THE TIME OF SUCH SURRENDER.
REPLACEMENT OF WARRANT. UPON RECEIPT OF EVIDENCE REASONABLY
SATISFACTORY TO THE COMPANY OF THE LOSS, THEFT, DESTRUCTION, OR MUTILATION OF
THIS WARRANT AND, IN THE CASE OF ANY SUCH LOSS, THEFT, OR DESTRUCTION, UPON
DELIVERY OF AN INDEMNITY AGREEMENT REASONABLY SATISFACTORY IN FORM AND AMOUNT TO
THE COMPANY, OR, IN THE CASE OF ANY SUCH MUTILATION, UPON SURRENDER AND
CANCELLATION OF THIS WARRANT, THE COMPANY, AT ITS EXPENSE, WILL EXECUTE AND
DELIVER, IN LIEU THEREOF, A NEW WARRANT OF LIKE TENOR.
CANCELLATION; PAYMENT OF EXPENSES. UPON THE SURRENDER OF THIS
WARRANT IN CONNECTION WITH ANY TRANSFER, EXCHANGE, OR REPLACEMENT AS PROVIDED IN
THIS PARAGRAPH 7, THIS WARRANT SHALL BE PROMPTLY CANCELED BY THE COMPANY. THE
COMPANY SHALL PAY ALL TAXES (OTHER THAN SECURITIES TRANSFER TAXES) AND ALL OTHER
EXPENSES (OTHER THAN LEGAL EXPENSES, IF ANY, INCURRED BY THE HOLDER OR
TRANSFEREES) AND CHARGES PAYABLE IN CONNECTION WITH THE PREPARATION, EXECUTION,
AND DELIVERY OF WARRANTS PURSUANT TO THIS PARAGRAPH 7.
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REGISTER. THE COMPANY SHALL MAINTAIN, AT ITS PRINCIPAL
EXECUTIVE OFFICES (OR SUCH OTHER OFFICE OR AGENCY OF THE COMPANY AS IT MAY
DESIGNATE BY NOTICE TO THE HOLDER HEREOF), A REGISTER FOR THIS WARRANT, IN WHICH
THE COMPANY SHALL RECORD THE NAME AND ADDRESS OF THE PERSON IN WHOSE NAME THIS
WARRANT HAS BEEN ISSUED, AS WELL AS THE NAME AND ADDRESS OF EACH TRANSFEREE AND
EACH PRIOR OWNER OF THIS WARRANT.
EXERCISE OR TRANSFER WITHOUT REGISTRATION. IF, AT THE TIME OF
THE SURRENDER OF THIS WARRANT IN CONNECTION WITH ANY EXERCISE, TRANSFER, OR
EXCHANGE OF THIS WARRANT, THIS WARRANT (OR, IN THE CASE OF ANY EXERCISE, THE
WARRANT SHARES ISSUABLE HEREUNDER), SHALL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND UNDER APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS, THE COMPANY MAY REQUIRE, AS A CONDITION OF ALLOWING
SUCH EXERCISE, TRANSFER, OR EXCHANGE, (I) THAT THE HOLDER OR TRANSFEREE OF THIS
WARRANT, AS THE CASE MAY BE, FURNISH TO THE COMPANY A WRITTEN OPINION OF
COUNSEL, WHICH OPINION AND COUNSEL ARE ACCEPTABLE TO THE COMPANY, TO THE EFFECT
THAT SUCH EXERCISE, TRANSFER, OR EXCHANGE MAY BE MADE WITHOUT REGISTRATION UNDER
SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, (II) THAT THE
HOLDER OR TRANSFEREE EXECUTE AND DELIVER TO THE COMPANY AN INVESTMENT LETTER IN
FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY AND (III) THAT THE TRANSFEREE BE AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A) PROMULGATED UNDER THE SECURITIES
ACT; PROVIDED THAT NO SUCH OPINION, LETTER OR STATUS AS AN "ACCREDITED INVESTOR"
SHALL BE REQUIRED IN CONNECTION WITH A TRANSFER PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT. THE FIRST HOLDER OF THIS WARRANT, BY TAKING AND HOLDING THE
SAME, REPRESENTS TO THE COMPANY THAT SUCH HOLDER IS ACQUIRING THIS WARRANT FOR
INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF.
REGISTRATION RIGHTS. The initial holder of this Warrant (and certain
assignees thereof) is entitled to the benefit of such registration rights in
respect of the Warrant Shares as are set forth in Section 2 of the Registration
Rights Agreement.
NOTICES. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the holder of this Warrant shall
be in writing, and shall be personally delivered, or shall be sent by certified
or registered mail or by recognized overnight mail courier, postage prepaid and
addressed, to such holder at the address shown for such holder on the books of
the Company, or at such other address as shall have been furnished to the
Company by notice from such holder. All notices, requests, and other
communications required or permitted to be given or delivered hereunder to the
Company shall be in writing, and shall be personally delivered, or shall be sent
by certified or registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to the office of the Company at 1325 Howard Avenue, Suite
#422, Burlingame, California 94010, Attention: President and Chief Operating
Officer, or at such other address as shall have been furnished to the holder of
this Warrant by notice from the Company. Any such notice, request, or other
communication may be sent by facsimile, but shall in such case be subsequently
confirmed by a writing personally delivered or sent by certified or registered
mail or by recognized overnight mail courier as provided above. All notices,
requests, and other communications shall be deemed to have been given either at
the time of the receipt thereof by the person entitled to receive such notice at
the address of such person for purposes of this Paragraph 9, or, if mailed by
registered or certified mail or with a recognized overnight mail courier upon
deposit with the United States Post Office or such overnight mail courier, if
postage is prepaid and the mailing is properly addressed, as the case may be.
GOVERNING LAW. THIS WARRANT SHALL BE ENFORCED, GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN LOS
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ANGELES, CALIFORNIA WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS WARRANT, THE
AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS WARRANT SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING
ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
MISCELLANEOUS.
AMENDMENTS. AN INSTRUMENT IN WRITING SIGNED BY THE COMPANY AND
THE HOLDER HEREOF HEREOF MAY ONLY AMEND THIS WARRANT AND ANY PROVISION.
DESCRIPTIVE HEADINGS. THE DESCRIPTIVE HEADINGS OF THE SEVERAL
PARAGRAPHS OF THIS WARRANT ARE INSERTED FOR PURPOSES OF REFERENCE ONLY, AND
SHALL NOT AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS HEREOF.
CASHLESS EXERCISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS WARRANT, IF THE RESALE OF THE WARRANT SHARES BY THE HOLDER IS
NOT THEN REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, THIS WARRANT MAY BE EXERCISED BY PRESENTATION AND SURRENDER OF
THIS WARRANT TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES WITH A WRITTEN
NOTICE OF THE HOLDER'S INTENTION TO EFFECT A CASHLESS EXERCISE, INCLUDING A
CALCULATION OF THE NUMBER OF SHARES OF COMMON STOCK TO BE ISSUED UPON SUCH
EXERCISE IN ACCORDANCE WITH THE TERMS HEREOF (A "CASHLESS EXERCISE"). IN THE
EVENT OF A CASHLESS EXERCISE, IN LIEU OF PAYING THE EXERCISE PRICE IN CASH, THE
HOLDER SHALL SURRENDER THIS WARRANT FOR THAT NUMBER OF SHARES OF COMMON STOCK
DETERMINED BY MULTIPLYING THE NUMBER OF WARRANT SHARES TO WHICH IT WOULD
OTHERWISE BE ENTITLED BY A FRACTION, THE NUMERATOR OF WHICH SHALL BE THE
DIFFERENCE BETWEEN THE THEN CURRENT MARKET PRICE PER SHARE OF THE COMMON STOCK
AND THE EXERCISE PRICE, AND THE DENOMINATOR OF WHICH SHALL BE THE THEN CURRENT
MARKET PRICE PER SHARE OF COMMON STOCK. FOR EXAMPLE, IF THE HOLDER IS EXERCISING
100,000 WARRANTS WITH A PER WARRANT EXERCISE PRICE OF $0.75 PER SHARE THROUGH A
CASHLESS EXERCISE WHEN THE COMMON STOCK'S CURRENT MARKET PRICE PER SHARE IS
$2.00 PER SHARE, THEN UPON SUCH CASHLESS EXERCISE THE HOLDER WILL RECEIVE 62,500
SHARES OF COMMON STOCK.
REMEDIES. THE COMPANY ACKNOWLEDGES THAT A BREACH BY IT OF ITS
OBLIGATIONS HEREUNDER WILL CAUSE IRREPARABLE HARM TO THE HOLDER, BY VITIATING
THE INTENT AND PURPOSE OF THE TRANSACTION CONTEMPLATED HEREBY. ACCORDINGLY, THE
COMPANY ACKNOWLEDGES THAT THE REMEDY AT LAW FOR A BREACH OF ITS OBLIGATIONS
UNDER THIS WARRANT WILL BE INADEQUATE AND AGREES, IN THE EVENT OF A BREACH OR
THREATENED BREACH BY THE COMPANY OF THE PROVISIONS OF THIS WARRANT, THAT THE
HOLDER SHALL BE ENTITLED, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES AT LAW OR
IN EQUITY, AND IN ADDITION TO THE PENALTIES ASSESSABLE HEREIN, TO AN INJUNCTION
OR INJUNCTIONS RESTRAINING, PREVENTING OR CURING ANY BREACH OF THIS WARRANT AND
TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS THEREOF, WITHOUT THE NECESSITY
OF SHOWING ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER SECURITY BEING REQUIRED.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
FAMOUS FIXINS, INC.
/s/ Michael Rudolph
By: _______________________________
Michael Rudolph
Chief Executive Officer
Dated as of December 27, 2002
FORM OF EXERCISE AGREEMENT
Dated: ________ __, 200_
To: Famous Fixins, Inc.
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby agrees to purchase ________ shares of Common Stock covered by
such Warrant, and makes payment herewith in full therefore at the price per
share provided by such Warrant in cash or by certified or official bank check in
the amount of, or, if the resale of such Common Stock by the undersigned is not
currently registered pursuant to an effective registration statement under the
Securities Act of 1933, as amended, by surrender of securities issued by the
Company (including a portion of the Warrant) having a market value (in the case
of a portion of this Warrant, determined in accordance with Section 11(c) of the
Warrant) equal to $_________. Please issue a certificate or certificates for
such shares of Common Stock in the name of and pay any cash for any fractional
share to:
Name: ______________________________
Signature:
Address:____________________________
-----------------------------
Note: The above signature should correspond exactly with the
name on the face of the within Warrant, if applicable.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth herein
below, to:
NAME OF ASSIGNEE ADDRESS NO OF SHARES
, and hereby irrevocably constitutes and appoints
___________________________________ as agent and attorney-in-fact to transfer
said Warrant on the books of the within-named corporation, with full power of
substitution in the premises.
Dated: ________ __, 200_
In the presence of: ______________________________
Name:______________________________
Signature:_________________________
Title of Signing Officer or Agent (if any):
------------------------
Address: ______________________________
------------------------
Note: The above signature should correspond exactly with the name on
the face of the within Warrant, if applicable.
82