Attached files
EXHIBIT 3.3
UNLTD VENTURES INCORPORATED
Warrant to Purchase Series A Preferred Shares
THIS WARRANT AND THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), THE ISRAELI SECURITIES
LAW 5728 - 1968, AS AMENDED, OR ANY STATE OR FOREIGN SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH SALE, OFFER, PLEDGE OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND
OF ANY APPLICABLE SECURITIES LAWS.
No. 1
ISSUED: March 24, 2009
This is to certify that, FOR VALUE RECEIVED, Yardeni-Gelfand Trusts (2000)
Ltd. as trustee for Xenia Venture Capital Ltd., or registered assigns ("Holder")
is entitled to purchase, subject to the provisions of this Warrant, from UNLTD
Ventures Incorporated (the "Company"), 3,770,935 shares of the Series A
Preferred stock of the Company ("Preferred Shares") at a purchase price of
$0.0001 per share. The number of Preferred Shares to be received upon the
exercise of this Warrant and the price to be paid for a Preferred Share may be
adjusted from time to time as hereinafter set forth. The Preferred Shares
deliverable upon such exercise, as may be adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares"; and the exercise price of
a Preferred Share in effect at any time, and as may be adjusted from time to
time, is hereinafter sometimes referred to as the "Exercise Price."
1. Exercise of Warrant
(a) This Warrant may be exercised by the Holder at any time during the
period commencing with the date hereof and ending upon the earlier of: (i) the
Company's initial public offering of its shares, reflecting a pre-money
valuation of the Company of at least fifty million United States dollars (US
$50,000,000) with net proceeds to the Company of not less than fifteen million
United States Dollars (US $15,000,000) ("QIPO"); (ii) a merger or consolidation
of the Company with or into another company, and (iii) the sale of all or
substantially all of the Company's properties and assets or the sale of all or
substantially all of the Company's shares to another party (each of the events
in (ii) and (iii) an "M&A") (the "Exercise Period") provided, however, that the
Company shall provide written notice to the Holder of an intended QIPO or M&A
not less than 45 days prior to the intended closing of such QIPO or M&A. The
Warrant may be exercised by the Holder in whole or in part, by delivering to the
Company (a) this Warrant certificate, (b) an amount equal to the Exercise Price
multiplied by the number of Warrant Shares for which this Warrant is being
exercised (the "Purchase Price"), and (c) the Notice of Exercise attached as
Exhibit A duly completed and executed by the Holder. Upon exercise, the Holder
shall be entitled to receive from the Company a share certificate in proper form
representing the number of Warrant Shares so purchased.
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(b) The Holder may condition its exercise hereof in connection with a QIPO
or M&A on the consummation of closing of such QIPO or M&A.
2. Delivery of Share Certificates; No Fractional Shares
(a) Within 10 days after the payment of the Purchase Price following the
exercise of this Warrant (in whole or in part), the Company at its expense shall
(1) issue in the name of the Holder the number of fully paid and nonassessable
Warrant Shares to which the Holder shall be entitled upon such exercise; and (2)
register the Holder in the Company's shareholders registrar as the holder of the
Warrant Shares to which the Holder shall be entitled upon such exercise, and
deliver to the Holder: (i) a certificate or certificates thereof, and (ii) a new
Warrant of like tenor to purchase up to that number of Warrant Shares, if any,
as to which this Warrant has not been exercised.
(b) If, upon exercise of this Warrant, a fraction of a share results, the
Company will round up the number of Warrant Shares deliverable hereunder to the
next whole number of such shares.
3. Adjustments
The number and kind of securities purchasable upon the exercise of this
Warrant, and the Exercise Price therefor, shall be subject to adjustment from
time to time upon the occurrence of certain events, as follows:
(a) Reclassification. In case of any reclassification or change of the
Warrant Shares (other than as a result of a subdivision or combination), the
Company shall execute a new Warrant, providing that the holder of this Warrant
shall have the right to exercise such new Warrant, and procure upon such
exercise and payment of the same aggregate Exercise Price, in lieu of the
Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and
amount of shares, other securities, money and property receivable upon such
reclassification or change by a holder of an equivalent number of Warrant Shares
immediately prior to such reclassification or change. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 3. The provisions of this
Section 3(a) shall similarly apply to successive reclassifications or changes.
(b) Share Splits and Combinations. In the event that the Company shall at
any time subdivide the Warrant Shares, the number of Warrant Shares issuable
upon exercise of this Warrant immediately prior to such subdivision shall be
proportionately increased, and in the event that the Company shall at any time
combine the Warrant Shares, the number of Warrant Shares issuable upon exercise
of this Warrant immediately prior to such combination shall be proportionately
decreased, effective at the close of business on the date of such subdivision or
combination, as the case may be.
(c) Adjustments for Certain Dividends and Distributions. In the event the
Company at any time or from time to time makes, or fixes a record date for the
determination of holders of the Warrant Shares entitled to receive, a dividend
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or other distribution payable in securities of the Company, then in each such
event provision shall be made so that the Holder shall receive upon exercise of
this Warrant, in addition to the number receivable thereupon of Warrant Shares,
the amount of securities of the Company that the Holder would have received had
this Warrant been exercised immediately prior to such event (or the record date
for such event) and had the Holder thereafter, during the period from the date
of such event to and including the date of exercise, retained such securities
receivable by it as aforesaid during such period, subject to all other
adjustments called for during such period under this Section.
(d) Reorganization. If at any time there is a capital reorganization of
the Company's shares (other than a recapitalization, subdivision, combination or
reclassification provided for elsewhere in this section), then, as a part of
such reorganization, provision shall be made so that the Holder shall thereafter
be entitled to receive upon exercise of this Warrant, the number of shares or
other securities or property of the Company to which a holder of Warrant Shares
would have been entitled on such capital reorganization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 3(d) and with respect to the rights of the Holder after the
reorganization to the end that the provisions of this Section 3(d) (including
adjustment of the number of shares issuable upon exercise of this Warrant) shall
be applicable after that event and be as nearly equivalent to the provisions
hereof as may be practicable.
(e) Other Transactions. In the event that the Company shall issue shares
to its shareholders as a result of a split-off, spin-off or the like, then the
Company shall only complete such issuance or other action if, as part thereof,
allowance is made to protect the economic interest of the Holder either by
increasing the number of Warrant Shares or by procuring that the Holder shall be
entitled, on economically proportionate terms, to acquire additional shares of
the spun-off or split-off entities.
(f) General Protection. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder, but
will at all times in good faith assist in the carrying out of all the provisions
hereof and in taking of all such actions and making all such adjustments as may
be necessary or appropriate in order to protect the rights of the Holder as set
forth herein against impairment.
4. Notice of Adjustments
(a) Upon the occurrence of each adjustment or readjustment pursuant to
Section 3, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and provide notice to the
Holder signed by the Company's Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment or readjustment, the
amount of the adjustment or readjustment, the method by which such adjustment or
readjustment was calculated, and the number and class of Warrant Shares which
may be purchased after giving effect to such adjustment or readjustment.
(b) If at any time the Company shall offer for subscription pro rata to the
holders of its common stock (or other stock or securities at the time receivable
upon the exercise of this Warrant) any additional shares of any class, other
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rights or any equity security of any kind, or there shall be any public
offering, capital reorganization or reclassification of the capital shares of
the Company, or consolidation or merger of the Company with, or sale of all or
substantially all of its assets to another company or there shall be a voluntary
or involuntary dissolution, liquidation or winding up of the Company, or other
transaction described in Section 3, then, in any one or more of said cases, the
Company shall give the Holder prior written notice, by registered or certified
mail, postage prepaid, of the date on which (i) a record shall be taken for such
subscription rights or (ii) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up or other
transaction shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of record of shares of common stock (or other
stock or securities at the time receivable upon the exercise of this Warrant)
shall participate in such subscription rights, or shall be entitled to exchange
their securities for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, etc. as the case may be. Such written notice shall be
given at least ten (10) days prior to the action in question and not less than
ten (10) days prior to the record date in respect thereto.
5. Representations, Warranties, and Covenants of the Company
The Company represents, warrants, and covenants to the Holders as follows:
(a) The Company represents that all corporate actions on the part of the
Company, its officers, directors and shareholders necessary for the sale and
issuance of this Warrant and the Warrant Shares and the performance of the
Company's obligations hereunder were taken prior to and are effective as of the
effective date of this Warrant.
(b) The execution and delivery of this Warrant are not, and the issuance of
the Warrant Shares upon exercise of this Warrant in accordance with the terms
hereof will not be, inconsistent with the Company's Certificate of
Incorporation, do not contravene any material law, governmental rule or
regulation, judgment or order applicable to the Company, and, except for
consents that have already been obtained by the Company, do not and will not
conflict with or contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound.
(c) The Company represents and covenants that at all times during the
Exercise Period there shall be reserved for issuance and delivery upon exercise
of this Warrant such number of Warrant Shares as is necessary for exercise in
full of this Warrant and, from time to time, it will take all steps necessary to
amend its Certificate of Incorporation to provide sufficient reserves of Warrant
Shares. All Warrant Shares issued pursuant to the exercise of this Warrant will,
upon their issuance, be validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except
restrictions arising (a) under applicable securities laws, (b) not by or through
the Company, or (c) by agreement between the Company and the Holder or its
successors.
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6. Rights of Shareholders
(a) No holder of this Warrant shall be entitled, as a Warrant holder, to
vote or receive dividends or be deemed the holder of the Warrant Shares or any
other securities of the Company which may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of shares, reclassification of shares, change of par
value, consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until this
Warrant shall have been exercised and the Warrant Shares purchasable upon the
exercise hereof shall have become deliverable, as provided herein.
(b) Notwithstanding the provisions of Section 6(a) hereof, the Warrant
Shares shall be deemed to have been issued in full to the Holder for the purpose
of calculating the Holder's pro-rata share of the Company's issued and
outstanding share capital under any rights offering by the Company.
7. Notices
All notices and other communications required or permitted hereunder shall
be in writing and shall be telecopied, emailed or mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger.
Notices to the Company shall be sent to the principal office of the Company (or
at such other place as the Company shall notify the Holder hereof in writing).
Notices to the Holder shall be sent to the address of the Holder in the Books of
the Company (or at such other place as the Holder shall notify the Company in
writing).
Any notice sent in accordance with this Section 7 shall be effective (a)
if mailed, seven (7) business days after mailing, (b) if sent by messenger, upon
delivery, and (c) if sent via telecopier or email, upon transmission and
electronic confirmation of receipt or, if transmitted and received on a
non-business day, on the first business day following transmission and
electronic confirmation of receipt (provided, however, that any notice of change
of address shall only be valid upon receipt).
8. Transfer to Comply with the Securities Act of 1933
The Company may cause the following legend or one similar thereto to be
set forth on each certificate representing Warrant Shares or any other security
issued or issuable upon exercise of this Warrant, unless counsel for the Company
is of the opinion as to any such certificate that such legend is unnecessary:
The shares represented by this Certificate have not been registered
under the Securities Act of l933 (the "Act") and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold, or otherwise transferred
except pursuant to an effective registration statement under the Act
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or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company.
9. Loss, Theft, Destruction or Mutilation of Warrant
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant or share certificate,
and in case of loss, theft or destruction, of indemnity, or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such Warrant
or share certificate, if mutilated, the Company will make and deliver a new
Warrant or share certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or share certificate.
10. Miscellaneous
10.1 Amendments and Waivers
Any term of this Warrant may be amended and the observance of any term may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only with the written consent of the Company and the Holder.
Any amendment or waiver effected in accordance with this Section 10.1 shall be
binding on the Holder, each future Holder and the Company.
10.2 Governing Law; Jurisdiction; Venue
This Warrant shall be governed by and construed under the laws of
Delaware, without regard to principles of conflict of laws. The Chancery Court
of Delaware shall have exclusive jurisdiction on all matters pertaining to this
Warrant.
10.3 Successors and Assigns; Transfer
The terms and conditions of this Warrant shall inure to the benefit of and
be binding on the respective successors and assigns of the parties. This Warrant
may be transferred or assigned without the consent of the Company or other third
parties pursuant to an Assignment in the form of Exhibit B hereto, provided that
such assignment shall be subject to and the approval of the Company's directors.
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first
written above.
UNLTD VENTURES INCORPORATED
By: /s/ Sheldon Kales
-------------------------------
Print Name: Sheldon Kales
----------------------
Its: President
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EXHIBIT A
NOTICE OF EXERCISE
To: UNLTD Ventures Incorporated
The undersigned hereby irrevocably elects to purchase ____ Series A Preferred
Shares of UNLTD Ventures Incorporated issuable upon the exercise of the attached
Warrant and requests that certificates for such shares be issued in the name of
the undersigned and delivered to the address of the undersigned, at the address
stated below and, if such number of shares shall not be all the shares that may
be purchased pursuant to the attached Warrant, that a new Warrant evidencing the
right to purchase the balance of such shares be registered in the name of, and
delivered to, the undersigned at the address stated below.
Payment enclosed in the amount of $___________.
Dated: ________________
Name of Holder of Warrant: _______________________________________________
(please print)
Address: ________________________________________________________________
Signature: ______________________________________________________________
