NEITHER THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE NOR THE SHARES OF
COMMON STOCK OR ANY OTHER SECURITIES ISSUABLE UPON EXERCISE OF SUCH WARRANTS
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH WARRANTS
HAVE BEEN ACQUIRED, AND ANY SHARES OF COMMON STOCK OR ANY OTHER SECURITIES
ISSUABLE UPON EXERCISE OF SUCH WARRANTS ARE REQUIRED TO BE ACQUIRED, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH WARRANTS AND/OR SUCH SHARES OR OTHER
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF SUCH
WARRANTS AND SUCH SHARES OR OTHER SECURITIES TO THE EFFECT THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS.
VOID AFTER 5:00 P.M. ON September 20, 2008
Walker Financial Corporation
Warrant Certificate
175,000 Common Stock Purchase Warrants
Garden City, New York
Warrant Certificate No. 2005A-05 September 20, 2005
THIS IS TO CERTIFY THAT, for value received, Cindy Dolgin
("Warrantholder") is the registered owner of the number of Common Stock Purchase
Warrants (each, a "Warrant") set forth above, each Warrant entitling the owner
thereof to purchase from Walker Financial Corporation, a Delaware corporation
(the "Company"), one duly authorized, validly issued, fully paid and
non-assessable share (each, a "Warrant Share") of the common stock, par value
$.10 per share ("Common Stock"), of the Company, at a purchase price of $0.45
per Warrant Share (the "Purchase Price"), at any time on or after September 20,
2005(the "Commencement Date") and terminating at 5:00 p.m., New York City time,
on September 20, 2008 (the "Expiration Date"), all subject to the terms and
conditions contained in this Warrant Certificate. The number of Warrants
evidenced by this Warrant Certificate (and the number and kind of securities
which may be purchased upon exercise hereof) set forth above, and the Purchase
Price per share set forth above, are as of the date hereof. As provided herein,
the Purchase Price and the number of shares of Common Stock or other securities
which may be purchased upon the exercise of the Warrants evidenced by this
Warrant Certificate are, upon the happening of certain events, subject to
modification and adjustment.
This Warrant Certificate, together with any warrant certificate(s) issued
in replacement or substitution hereof (as provided for in this Warrant
Certificate) evidencing all or part of the Warrants evidenced hereby, are
sometimes collectively referred to herein as the "Warrant Certificates."
The rights of the registered holder of this Warrant Certificate shall be
subject to the following further terms and conditions:
1. Exercise of Warrants.
(a) The Warrants may be exercised, in whole or in part, at any time and
from time to time, during the period commencing on the Commencement Date and
terminating at the Expiration Date by surrendering this Warrant Certificate,
with the purchase form provided for herein duly executed by the Warrantholder or
by the Warrantholder's duly authorized attorney-in-fact, at the principal office
of the Company, presently located at 990 Stewart Avenue, Suite 60A, Garden City,
New York 11530, or at such other office or agency in the United States as the
Company may designate by notice in writing to the Warrantholder (in either
event, the "Company Offices") accompanied by payment in full, either in the form
of cash, bank cashier's check or certified check payable to the order of the
Company, of the Purchase Price payable in respect of the Warrants being
exercised or said Purchase Price may be payable by Warrantholder to the Company
within five (5) days upon the sale of the stock underlying each warrant that is
exercised ("Cashless Exercise"). If fewer than all of the Warrants are
exercised, the Company
shall, upon each exercise prior to the Expiration Date, execute and deliver to
the Warrantholder a new Warrant Certificate (dated as of the date hereof)
evidencing the balance of the Warrants that remain exercisable.
(b) On the day immediately following the date of a valid t 6 0 exercise of
any Warrants, the Warrantholder exercising same shall be deemed to have become
the holder of record for all purposes of the Warrant Shares to which such valid
exercise relates.
(c) As soon as practicable, but not in excess of ten days, after the
exercise of all or part of the Warrants evidenced by this Warrant Certificate,
the Company, at its expense (including the payment by it of any applicable issue
taxes), will cause to be issued in the name of and delivered to the
Warrantholder a certificate or certificates evidencing the number of duly
authorized, validly issued, fully paid and non-assessable Warrant Shares to
which the Warrantholder shall be entitled upon such exercise.
(d) No certificates for fractional Warrant Shares shall be issued upon the
exercise of any of the Warrants but, in lieu thereof, the Company shall, upon
exercise of all the Warrants, round up any fractional Warrant Share to the
nearest whole share of Common Stock.
2. Issuance of Common Stock; Reservation of Shares. The Company covenants and
agrees that:
(a) all Warrant Shares which may be issued upon the exercise of all or
part of the Warrants will, upon issuance in accordance with the terms hereof, be
validly issued, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issue thereof;
(b) at all times prior to the Expiration Time, the Company shall keep
reserved for issuance a sufficient number of authorized shares of Common Stock
to permit the exercise in full of the Warrants evidenced by this Warrant
Certificate.
3. Adjustments of Purchase Price, Number and Character of Warrant Shares, and
Number of Warrants. The Purchase Price the number and kind of securities
purchasable upon the exercise of each Warrant shall be subject to adjustment
from time to time upon the happening of the events enumerated in this Section 3.
(a) Stock Dividends, Subdivisions and Combinations. In case the Company
shall at any time on or before the Expiration Time:
(i) pay a dividend in shares of Common Stock or make a distribution
in shares of Common Stock or such other stock to holders of all its
outstanding shares of Common Stock;
(ii) subdivide or reclassify the outstanding shares of Common Stock
into a greater number of shares;
(iii) combine the outstanding shares of Common Stock into a smaller
number of shares of Common Stock; or
(iv) issue by reclassification of its shares of Common Stock other
securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing corporation);
then the number and kind of Warrant Shares purchasable upon exercise of each
Warrant outstanding immediately prior thereto shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of shares of
Common Stock or other securities of the Company which the Warrantholder would
have owned or have been entitled to receive after the happening of any of the
events described above had such Warrant been exercised in full immediately prior
to the earlier of the happening of such event or any record date in respect
thereto. In the event of any adjustment of the number of Warrant Shares
purchasable upon the exercise of each then outstanding Warrants pursuant to this
Paragraph 3(a), the Purchase Price shall be adjusted to be the amount resulting
from dividing the
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number of shares of Common Stock (including fractional shares of Common Stock)
covered by such Warrant immediately after such adjustment into the total amount
payable upon exercise of such Warrant in full immediately prior to such
adjustment. An adjustment made pursuant to this Paragraph 3(a) shall become
effective immediately after the effective date of such event retroactive to the
record date for any such event. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) Capital Reorganizations and Other Reclassifications. In case of any
capital reorganization of the Company, or of any reclassification of the shares
of Common Stock (other than a reclassification, subdivision or combination of
shares of Common Stock referred to in Paragraph 3(a)), or in case of the
consolidation of the Company with, or the merger of the Company with, or merger
of the Company into, any other corporation (other than a reclassification of the
shares of Common Stock referred to in Paragraph 3(a) or a consolidation or
merger which does not result in any reclassification or change of the
outstanding shares of Common Stock) or of the sale of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation or
entity, each Warrant shall, after such capital reorganization, reclassification
of shares of Common Stock, consolidation, merger, or sale, be exercisable, upon
the terms and conditions specified in this Warrant Certificate, for the kind,
amount and number of shares or other securities, assets, or cash to which a
holder of the number of shares of Common Stock purchasable (at the time of such
capital reorganization, reclassification of shares of Common Stock,
consolidation, merger or sale) upon exercise of such Warrant would have been
entitled to receive upon such capital reorganization, reclassification of shares
of Common Stock, consolidation, merger, or sale; and in any such case, if
necessary, the provisions set forth in this Section 3 with respect to the rights
and interests thereafter of the Warrantholder shall be appropriately adjusted so
as to be applicable, as nearly equivalent as possible, to any shares or other
securities, assets, or cash thereafter deliverable on the exercise of the
Warrants. The Company shall not effect any such consolidation, merger, or sale,
unless prior to or simultaneously with the consummation thereof the successor
corporation or entity (if other than the Company) resulting from such
consolidation or merger or the corporation or entity purchasing such assets or
other appropriate corporation or entity shall assume, by written instrument, the
obligation to deliver to the Warrantholder such shares, securities, assets, or
cash as, in accordance with the foregoing provisions, such holders may be
entitled to purchase and the other obligations hereunder. The subdivision or
combination of shares of Common Stock at any time outstanding into a greater or
lesser number of shares shall not be deemed to be a reclassification of the
shares of Common Stock for purposes of this Paragraph 3(e).
4. Definition of Common Stock.. The Common Stock issuable upon exercise of the
Warrants shall be the Common Stock as constituted on the date hereof except as
otherwise provided in Section 3.
5. Replacement of Securities.. If this Warrant Certificate shall be lost,
stolen, mutilated or destroyed, the Company shall, on such terms as to indemnity
or otherwise as the Company may in its discretion reasonably impose, issue a new
certificate of like tenor or date representing in the aggregate the right to
subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder. Any such new certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at
any time enforceable by anyone.
6. Registration. This Warrant Certificate, as well as all other warrant
certificates representing Warrants shall be numbered and shall be registered in
a register (the "Warrant Register") maintained at the Company Offices as they
are issued. The Warrant Register shall list the name, address and Social
Security or other Federal Identification Number, if any, of all Warrantholders.
The Company shall be entitled to treat the Warrantholder as set forth in the
Warrant Register as the owner in fact of the Warrants as set forth therein for
all purposes and shall not be bound to recognize any equitable or other claim to
or interest in such Warrants on the part of any other person, and shall not be
liable for any registration of transfer of Warrants that are registered or to be
registered in the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing a breach of
trust in requesting such registration of transfer, or with such knowledge of
such facts that its participation therein amounts to bad faith.
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7. Transfer. NEITHER THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE NOR
THE SHARES OF COMMON STOCK OR ANY OTHER SECURITIES ISSUABLE UPON EXERCISE OF
SUCH WARRANTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SUCH WARRANTS HAVE BEEN ACQUIRED, AND ANY SHARES OF COMMON STOCK OR ANY OTHER
SECURITIES ISSUABLE UPON EXERCISE OF SUCH WARRANTS ARE REQUIRED TO BE ACQUIRED,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH WARRANTS AND/OR SUCH SHARES OR OTHER
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF SUCH
WARRANTS AND SUCH SHARES OR OTHER SECURITIES TO THE EFFECT THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS.
8. Exchange of Warrant Certificates. This Warrant Certificate may be exchanged
for another certificate or certificates entitling the Warrantholder thereof to
purchase a like aggregate number of Warrant Shares as this Warrant Certificate
entitles such Warrantholder to purchase. A Warrantholder desiring to so exchange
this Warrant Certificate shall make such request in writing delivered to the
Company, and shall surrender this Warrant Certificate therewith. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new
certificate or certificates, as the case may be, as so requested.
9. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed given when delivered in person, against written receipt
therefor, or two days after being sent, by registered or certified mail, postage
prepaid, return receipt requested, and, if to the Warrantholder, at such address
as is shown on the Warrant Register or as may otherwise may have been furnished
to the Company in writing in accordance with this Section 9 by the Warrantholder
and, if to the Company, at the Company Offices or such other address as the
Company shall give notice thereof to the Warrantholder in accordance with this
Section 9.
10. Registration Rights.
(a) Defined Terms. As used in this Section 10, terms defined elsewhere
herein shall have their assigned meanings and each of the following terms shall
have the following meanings (such definitions to be applicable to both the
plural and singular of the terms defined):
(i) Registerable Securities. The term "Registerable Securities"
shall mean any of the Warrant Shares issuable upon exercise of any of the
Warrants or any shares of Common Stock or other securities received in
connection with any stock split, stock dividend, merger, reorganization,
recapitalization, reclassification or other distribution payable or
issuable upon shares of Common Stock. For the purposes of this Section 10,
securities will cease to be Registerable Securities when (A) a
registration statement under the Securities Act covering such Registerable
Securities has been declared effective and (1) such Registerable
Securities have been disposed of pursuant to such effective registration
statement or (2) such registration statement has remained effective for
270 consecutive days, (B) such Registerable Securities are distributed to
the public pursuant to the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act, including, without
limitation, Rules 144 and 144A promulgated under the Securities Act or (C)
such Registerable Securities have been otherwise transferred and the
Company, in accordance with applicable law and regulations, has delivered
new certificates or other evidences of ownership for such securities which
are not subject to any stop transfer order or other restriction on
transfer.
(ii) Rightsholders. The term "Rightsholders" shall include the
Warrantholder, all successors and assigns of the Warrantholders and all
transferees of Registerable Securities where such transfer affirmatively
includes the transfer and assignment of the rights of the
transferor-Warrantholder under this Warrant Certificate with respect to
the transferred Registerable Securities and such transferee
4
agrees in writing to assume all of the transferor-Warrantholder's
agreements, obligations and liabilities under this Section 10 with respect
to the transferred Registerable Securities.
(iii) Interpretations of Terms. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Section 10 shall
refer to this Section 10 as a whole and not to any particular provision of
this Section 10, and subsection, paragraph, clause, schedule and exhibit
references are to this Section 10 unless otherwise specified.
(b) Piggy-Back Registration..
(i) If, at any time on or after the Commencement Date and until the
Expiration Date, the Company proposes to file a registration statement
under the Securities Act with respect to an offering by the Company or any
other party of any class of equity security similar to any Registerable
Securities (other than a registration statement on Form S-4 or S-8 or any
successor form or a registration statement filed solely in connection with
an exchange offer, a business combination transaction or an offering of
securities solely to the existing stockholders or employees of the
Company), then the Company, on each such occasion, shall give written
notice (each, a "Company Piggy-Back Notice") of such proposed filing to
all of the Rightsholders owning Registerable Securities at least fifteen
days before the anticipated filing date of such registration statement,
and such Company Piggy-Back Notice also shall be required to offer to such
Rightsholders the opportunity to register such aggregate number of
Registerable Securities as each such Rightsholder may request. Each such
Rightsholder shall have the right, exercisable for the five days
immediately following the giving of a Company Piggy-Back Notice, to
request, by written notice (each, a "Holder Notice") to the Company, the
inclusion of all or any portion of the Registerable Securities of such
Rightsholders in such registration statement. The Company shall use
reasonable efforts to cause the managing underwriter(s) of a proposed
underwritten offering to permit the inclusion of the Registerable
Securities which were the subject of all Holder Notices in such
underwritten offering on the same terms and conditions as any similar
securities of the Company included therein. Notwithstanding anything to
the contrary contained in this Subparagraph 10(b)(i), if the managing
underwriter(s) of such underwritten offering or any proposed underwritten
offering delivers a written opinion to the Rightsholders of Registerable
Securities which were the subject of all Holder Notices that the total
amount and kind of securities which they, the Company and any other person
intend to include in such offering is such as to materially and adversely
affect the success of such offering, then the amount of securities to be
offered for the accounts of such Rightsholders and persons other than the
Company shall be eliminated or reduced pro rata (based on the amount of
securities owned by such Rightsholders and other persons which carry
registration rights) to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by
such managing underwriter(s) in the managing underwriter's written
opinion.
(ii) Number of Piggy-Back Registrations; Expenses. The obligations
of the Company under this Paragraph 10(b) shall be unlimited with respect
to each Rightsholder. Subject to the provisions of Paragraph 10(d) hereof,
the Company will pay all Registration Expenses in connection with any
registration of Registerable Securities effected pursuant to this
Paragraph 10(b), but the Company shall not be responsible for the payment
of any underwriter's discount, commission or selling concession in
connection therewith.
(iii) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything contained to the contrary in this Paragraph
10(b), the Company shall have the absolute right, whether before or after
the giving of a Company Piggy-Back Notice or Holder Notice, to determine
not to file a registration statement to which the Rightsholders shall have
the right to include their Registerable Securities therein pursuant to
this Paragraph 10(b), to withdraw such registration statement or to delay
or suspend pursuing the effectiveness of such registration statement. In
the event of such a determination after the giving of a Company Piggy-Back
Notice, the Company shall give notice of such determination to all
Rightsholders and, thereupon, (A) in the case of a determination not to
register or to withdraw such registration statement, the Company shall be
relieved of its obligation under this Paragraph 10(b) to register any of
the Registerable Securities in connection with such registration and (B)
in the case of a
5
determination to delay the registration, the Company shall be permitted to
delay or suspend the registration of Registerable Securities pursuant to
this Paragraph 10(b) for the same period as the delay in the registration
of such other securities. No registration effected under this Paragraph
10(b) shall relieve the Company of its obligation to effect any
registration upon demand otherwise granted to a Rightsholder under any
other agreement with the Company.
(iv) Obligations of Rightsholders. In connection with any
registration of Registerable Securities of a Rightsholder pursuant to
Paragraph 10(b) hereof:
(A) The Company may require that each Rightsholder whose
Registerable Securities are included in such registration statement
furnish to the Company such information regarding the distribution
of such Registerable Securities and such Rightsholder as the Company
may from time to time reasonably request in writing.
(c) Registration Expenses. All expenses incident to the performance of or
compliance with this Agreement by the Company, including, without limitation,
all registration and filing fees of the Commission, National Association of
Securities Dealers, Inc. and other agencies, fees and expenses of Compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registerable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing, if any, of the
Registerable Securities on any securities exchange and fees and disbursements of
counsel for the Company and the Company's independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incidental to such performance), Securities Act or other
liability insurance (if the Company elects to obtain such insurance), the fees
and expenses of any special experts retained by the Company in connection with
such registration and the fees and expenses of any other person retained by the
Company (but not including any underwriting discounts or commissions
attributable to the sale of Registerable Securities or other out -of-pocket
expenses of the Rightsholders, or the agents who act on their behalf, unless
reimbursement is specifically approved by the Company) will be borne by the
Company. All such expenses are herein referred to as "Registration Expenses."
(d) Indemnification: Contribution.
(i) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Rightsholder, its
officers and directors and each person who controls such Rightsholder (within
the meaning of the Securities Act), if any, and any agent thereof against all
losses, claims, damages, liabilities and expenses incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
(including reasonable attorney's fees and expenses of investigation) arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus or preliminary prospectus or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, except insofar as the same arise out of or are based upon, any such
untrue statement or omission based upon information with respect to such
Rightsholder furnished in writing to the Company by such Rightsholder expressly
for use therein.
(ii) Indemnification by Rightsholder. In connection with any
registration statement in which a Rightsholder is participating, each such
Rightsholder will be required to furnish to the Company in writing such
information with respect to such Rightsholder as the Company reasonably requests
for use in connection with any such registration statement or prospectus, and
each Rightsholder agrees to the extent it is such a holder of Registerable
Securities included in such registration statement, and each other such holder
of Registerable Securities included in such Registration Statement will be
required to agree, to indemnify, to the full extent permitted by law, the
Company, the directors and officers of the Company and each person who controls
the Company (within the meaning of the Securities Act) and any agent thereof,
6
against any losses, claims, damages, liabilities and expenses (including
reasonable attorney's fees and expenses of investigation incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
arising out of or based upon any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact necessary,
to make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they are made) not misleading, to the extent, but only
to the extent, that such untrue statement or omission is based upon information
relating to such Rightsholder or other holder furnished in writing to the
Company expressly for use therein.
(iii) Conduct of Indemnification Proceedings. Promptly after receipt
by an indemnified party under this Paragraph 10(e) of written notice of the
commencement of any action, proceeding, suit or investigation or threat thereof
made in writing for which such indemnified party may claim indemnification or
contribution pursuant to this Agreement, such indemnified party shall notify in
writing the indemnifying party of such commencement or threat; but the omission
so to notify the indemnifying party shall not relieve the indemnifying party
from any liability which the indemnifying party may have to any indemnified
party (A) hereunder, unless the indemnifying party is actually prejudiced
thereby, or (B) otherwise than under this Paragraph 10(e). In case any such
action, suit or proceeding shall be brought against any indemnified party, and
the indemnified party shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and the
indemnifying party shall assume the defense thereof, with counsel reasonably
satisfactory to the indemnified party, and the obligation to pay all expenses
relating thereto. The indemnified party shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (A) the indemnifying party has agreed to pay such
fees and expenses, (B) the indemnifying party shall have failed to assume the
defense of such action, suit or proceeding or to employ counsel reasonably
satisfactory to the indemnified party therein or to pay all expenses relating
thereto or (C) the named parties to any such action or proceeding (including any
impleaded parties) include both the indemnified party and the indemnifying party
and the indemnified party shall have been advised by counsel that there may be
one or more legal defenses available to the indemnified party which are
different from or additional to those available to the indemnifying party and
which may result in a conflict between the indemnifying party and such
indemnified party (in which case, if the indemnified party notifies the
indemnifying party in writing that the indemnified party elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified party; it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for the indemnified party, which firm
shall be designated in writing by the indemnified party).
(iv) Contribution. If the indemnification provided for in this
Paragraph 10(e) from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other or (B) if the allocation provided by clause (A)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits received by the indemnifying party on
the one hand and the indemnified party on the other but also the relative fault
of the indemnifying party and indemnified party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and the
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages. liabilities
and expenses referred to above shall be deemed to include, subject to the
7
limitation set forth in Subparagraph 10(e)(v), any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Subparagraph 10(e)(iv) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in clauses (A) and (B) of the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(v) Limitation. Anything to the contrary contained in this Paragraph
10(e) or in Paragraph 10(f) notwithstanding, no holder of Registerable
Securities shall be liable for indemnification and contribution payments
aggregating an amount in excess of the maximum amount received by such holder in
connection with any sale of Registerable Securities as contemplated herein.
(f) Participation in Underwritten Registration. No Rightsholder may
participate in any underwritten registration hereunder unless such Rightsholder
(i) agrees to sell such holder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and to comply with Regulation M under the Exchange Act and
(ii) completes and executes all questionnaires, appropriate and limited powers
of attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangement;
provided, that all such documents shall be consistent with the provisions of
Paragraph 10(d).
11. Miscellaneous.
This Warrant Certificate and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This certificate is deemed to have been delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State. The headings in this Warrant Certificate are for purposes of
reference only, and shall not limit or otherwise affect any of the terms hereof.
11. Expiration.
Unless as hereinafter provided, the right to exercise these Warrants shall
expire at the Expiration Date.
Dated: September 20, 2005
Walker Financial Corporation
By:
-------------------------------------
Mitchell Segal, President
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EXERCISE FORM
Dated:_______________, ____
TO: Walker Financial Corporation
The undersigned hereby irrevocably elects to exercise the Warrants
evidenced by this Warrant Certificate, to the extent of purchasing
_________________ shares of Common Stock, and hereby makes payment of
_____________ in payment of the actual Purchase Price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
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(Please type or print in block letters)
Taxpayer
Identification
Number:
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Address:
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Signature:
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(Signature must conform in all respects to the name of
the Warrantholder as set forth on the face of this
Warrant Certificate.)
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ASSIGNMENT FORM
FOR VALUE RECEIVED,
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(Please type or print in block letters)
hereby sells, assigns and transfers unto:
Name:
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(Please type or print in block letters)
Taxpayer
Identification
Number:
----------------------------------------------------------
Address:
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this Warrant Certificate and the Warrants represented by this Warrant
Certificate to the extent of ________________ Warrants and does hereby
irrevocably constitute and appoint ___________________________ Attorney-in-Fact,
to transfer the same on the books of the Company with full power of substitution
in the premises.
Dated:
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Signature:
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(Signature must conform in all respects to the name of
the Warrantholder as set forth on the face of this
Warrant Certificate.)
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