Exhibit 4.2
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT (THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE "SECURITIES ACT") OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAW, AND THE WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT COVERING THIS WARRANT AND/OR SUCH SECURITIES.
to purchase
SHARES OF COMMON STOCK
of
EASY ENERGY, INC.
at an exercise price of $0.27 per share
VOID AFTER 5:00 p.m. (prevailing Tel Aviv time)
On the Expiration Date (as hereinafter defined)
NO. W-[ ] Date: Feb 28, 2008
Easy Energy, Inc. a Nevada corporation with its principal offices at 49
Ha'aroshet St., Karmiel 20100 Israel (the "COMPANY"), hereby grants to [
_____________________ ] (the "HOLDER"), the right to purchase, subject to
the terms and conditions hereof, up to [ ____________ ] shares of Common
Stock, par value $0.00001 per share, of the Company ("COMMON STOCK"),
exercisable at any time from time to time, on or after the date hereof (the
"EFFECTIVE DATE"), and until the Fifth (5th) anniversary of the Effective
Date (the "EXPIRATION DATE").
1. DEFINITIONS
In this Warrant the terms below shall have the following meaning, unless
otherwise specifically provided or required by the context:
1.1. "WARRANT SHARES" means the Shares of Common Stock purchasable
hereunder or any other securities which, in accordance with the
provisions hereof, may be issued by the Company in substitution
therefor.
1.2. "EXERCISE PRICE" means the price of twenty seven cents ($0.27) payable
hereunder for each Warrant Share, as adjusted in the manner set forth
hereinafter.
1.3. "WARRANTS" means this Warrant and all warrants hereafter issued in
exchange or substitution for this Warrant.
2. WARRANT PERIOD; EXERCISE OF WARRANT
2.1. This Warrant may be exercised in whole at any time, or in part from
time to time, beginning on the Effective Date until the Expiration
Date (the "WARRANT PERIOD"), by the surrender of this Warrant (with a
duly executed exercise form in the form attached hereto as EXHIBIT A),
at the principal office of the Company, set forth above, together with
proper payment of the Exercise Price multiplied by the number of
Warrant Shares for which the Warrant is being exercised. Payment for
Warrant Shares shall be made by certified or official bank check or
checks, payable to the order of the Company or by wire transfer to an
account to be designated in writing by the Company. Payments shall be
made in United States dollars.
2.2. The Holder of the Warrant, by its acceptance hereof, covenants and
agrees that this Warrant is being acquired as an investment and not
with a view to the distribution hereof and such Holder further
covenants and agrees that it will not sell, transfer, pledge, assign,
or hypothecate the Warrant or the Warrant Shares unless there is an
effective registration statement under the Securities Act of 1933
covering the Warrant or the Warrant Shares, or the Holder of the
Warrant and/or the Warrant Shares receives an opinion of counsel
satisfactory to the Company stating that such sale, transfer, pledge,
assignment, or hypothecation is exempt from the registration and
prospectus delivery requirements of the Securities Act of 1933 and the
qualification requirements under applicable law.
2.3. If this Warrant should be exercised in part, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder to purchase the remainder
of the Warrant Shares purchasable hereunder. The Company shall pay any
and all expenses, taxes and other charges that may be payable in
connection with the issuance of the Warrant Shares and the preparation
and delivery of share certificates pursuant to this Section 2 in the
name of the Holder (including without limitation, if applicable stamp
duty), and to the extent required, the execution and delivery of a new
Warrant, provided, however, that the Company shall only be required to
pay taxes which are due as a direct result of the issuance of the
Warrant Shares or other securities, properties or rights underlying
such Warrants (such as the applicable stamp duty), and will not be
required to pay any tax which may be (i) due as a result of the
specific identity of the Holder or (ii) payable in respect of any
transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder.
2.4. No fractions of Shares of Common Stock shall be issued in connection
with the exercise of this Warrant, and the number of Common Stock
issued shall be rounded up or down to the nearest whole number.
2.5. Upon the issuance of Common Stock resulting from the exercise in whole
or in part of this Warrant, the Company shall deliver to the Holder an
irrevocable letter of instructions to the Company's transfer agent to
issue as soon as is reasonably practicable to the Holder share
certificates reflecting the Warrant Shares exercised thereby, together
with any and all other documents required for the issuance of such
certificates by the transfer agent.
2.6. Cashless Exercise. If at any time after the completion of the
then-applicable holding period required by Rule 144, or any successor
provision then in effect, which would allow "tacking" of the holding
period of this Warrant and the Warrant Shares pursuant to the SEC
Manual of Publicly Available Telephone Interpretations or other
Commission rule or guidance, there is no effective Registration
Statement registering, or no current prospectus available for, the
resale of the Warrant Shares by the Holder at a time when such
Registration Statement is required to be effective pursuant to the
Registration Rights Agreement, then this Warrant may also be exercised
at such time by means of a "cashless exercise" in which the Holder
shall be entitled to receive a certificate for the number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
(A) = the VWAP on the Trading Day immediately preceding the date of
such election;
(B) = the Exercise Price of this Warrant, as adjusted; and
(X) = the number of Warrant Shares issuable upon exercise of this
Warrant in accordance with the terms of this Warrant by means of
a cash exercise rather than a cashless exercise.
Notwithstanding anything herein to the contrary, on the Expiration
Date, this Warrant shall be automatically exercised via cashless
exercise pursuant to this Section 2.6.
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3. RESERVATION OF SHARES
The Company covenants that: (i) at all times during the Warrant Period it
shall have in reserve, and will keep available solely for issuance or
delivery upon exercise of the Warrant, such number of Shares of Common
Stock as shall be issuable upon the exercise hereof, and (b) upon exercise
of the Warrant and payment of the Exercise Price hereunder, the Warrant
Shares issuable upon such exercise will be validly issued, fully paid, non
assessable, free and clear from any lien, encumbrance, pledge or any other
third party right and not subject to any preemptive rights.
4. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES
4.1. Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding Shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination.
4.2. Stock Dividends and Distributions. In case the Company shall pay a
dividend on, or make a distribution of, Shares of Common Stock or of
the Company's share capital convertible into Shares of Common Stock,
the Exercise Price shall forthwith be adjusted, from and after the
date of determination of stockholders entitled to receive such
dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of
determination by a fraction (i) the numerator of which shall be the
total number of shares of Common Stock outstanding immediately prior
to such dividend or distribution, and (ii) the denominator of which
shall be the total number of shares of Common Stock outstanding
immediately after such dividend or distribution. An adjustment
pursuant to this Section 4.3 shall be made as of the record date for
the subject stock dividend or distribution.
4.3. Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of Sections 4.1 and 4.2, the
number of Common Stock issuable upon the exercise of each Warrant
shall be adjusted to the nearest full amount 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 the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
4.4. No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made if the amount of said adjustment shall be
less than 1 cent ($0.01) per each Share of Common Stock, provided,
however, that in such case any adjustment that would otherwise be
required then to be made shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at
least 1 cent ($0.01) per each Share of Common Stock.
4.5. Merger or Consolidation. In case of any consolidation of the Company
with or merger of the Company with, or merger of the Company into
(other than a merger which does not result in any reclassification or
change of the outstanding Shares of Common Stock), the Company shall
cause the corporation formed by such consolidation or merger or
surviving such merger to execute and deliver to the Holder a new
warrant agreement in exchange for this Warrant, providing that the
Holder of the Warrant then outstanding or to be outstanding shall have
the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of such Warrant, the kind and amount of shares
of stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of Shares of Common
Stock of the Company for which such Warrant might have been exercised
immediately prior to such consolidation or merger. Such supplemental
warrant agreement shall provide for adjustments, which shall be
identical to the adjustments provided in this Section 4. The
provisions of this Section 4.5 shall similarly apply to successive
consolidations or mergers.
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5. NOTICES TO WARRANT HOLDERS
Nothing contained in this Warrant shall be construed as conferring upon the
Holder the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the
Expiration Date, any of the following events shall occur:
5.1. the Company shall take a record of the holders of its Shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company;
5.2. the Company shall offer to all the holders of its Shares of Common
Stock any additional shares of the share capital of the Company or
securities convertible into or exchangeable for shares of the share
capital of the Company, or any option, right or warrant to subscribe
therefor; or
5.3. a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give to the
Holder written notice of such event at least fifteen (15) days prior to the
date fixed as a record date or the date of closing the transfer books for
the determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale.
6. TRANSFERABILITY
6.1. The Holder may, sell, transfer, assign, encumber, pledge or otherwise
dispose or undertake to dispose of the Warrant.
6.2. Unless registered, the Warrant Shares issued upon exercise of the
Warrants shall be subject to a stop transfer order and the certificate
or certificates evidencing such Warrant Shares shall bear legend
substantially similar to the following:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES
UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES SATISFACTORY TO EASY
ENERGY, INC., THAT REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT."
7. LOSS, ETC. OF WARRANT
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant, if mutilated, and upon
reimbursement of the Company's reasonable direct expenses, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor
and denomination.
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8. HEADINGS
The headings of this Warrant have been inserted as a matter of convenience
and shall not affect the construction hereof.
9. NOTICES
Unless otherwise provided, any notice required or permitted under this
Warrant shall be given in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or seven (7) days after
deposit with the Post Authority, for dispatch by registered or certified
mail, postage prepaid and addressed to the Holder at the address set forth
in the Company's books and to the Company at the address of its principal
offices set forth above, or when given by telecopier or other form of rapid
written communication, provided that confirming copies are sent by such
airmail.
10. GOVERNING LAW
This Warrant shall be governed by and construed and enforced in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable New York principles of conflicts of law).
Any dispute arising out of or in connection with this Warrant is hereby
submitted to the sole and exclusive jurisdiction of the competent courts
located in New York, New York.
11. ENTIRE AGREEMENT; AMENDMENT AND WAIVER
This Warrant and the Exhibit hereto constitute the full and entire
understanding and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Warrant may be amended and the
observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with
the written consent of both the Holder and the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed as of the
date first written above.
Easy Energy, Inc.
By:
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Name: Guy Ofir
Title: CEO
Agreed and Accepted:
[ ---------------- ]
By:
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Name:
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Title:
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EXHIBIT A
Warrant Exercise Form
_________________, 200_
Easy Energy Inc.
49 Ha'aroshet St.,
Karmiel 20100 Israel
Dear Sirs,
Re: EXERCISE OF WARRANT
1. The undersigned hereby irrevocably elects to exercise the attached Warrant
No. W-[ ] to the extent of ___________________ Common Stock of Easy Energy,
Inc., all in accordance with Section 2.1 of the Warrant.
2. Payment to the Company of the total Exercise Price for such shares has been
made simultaneously with the delivery of this exercise of the Warrant.
3. The undersigned requests that certificates for such Common Stock be
registered in the name of ____________________ whose address is
____________________ and that such certificates be delivered to whose
address is _____________________________.
[ ]
By:
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Name:
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Title:
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