Attached files
| file | filename |
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| S-1 - NUGEN HOLDINGS, INC. | v178215_s1.htm |
| EX-5.1 - NUGEN HOLDINGS, INC. | v178215_ex5-1.htm |
| EX-23.1 - NUGEN HOLDINGS, INC. | v178215_ex23-1.htm |
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WARRANT
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March
24, 2010
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360,000
Shares
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WARRANT TO PURCHASE COMMON
STOCK
VOID
AFTER 5:30 P.M., EASTERN
TIME
ON THE EXPIRATION DATE
THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.
FOR VALUE
RECEIVED, NuGen Holdings, Inc., a Delaware corporation (the “Company”), hereby
agrees to sell upon the terms and on the conditions hereinafter set forth, but
no later than 5:30 p.m., Eastern Time, on the Expiration Date (as hereinafter
defined) to Uzi HaLevy (the “Holder”), under the
terms as hereinafter set forth, three hundred and sixty thousand (360,000) fully paid and
non-assessable shares of the Company’s Common Stock (the “Warrant Stock”), at a
purchase price of .one tenth of one cent ($0.001) per share (the “Warrant Price”),
pursuant to this warrant (this “Warrant”). The number
of shares of Warrant Stock to be so issued and Warrant Price are subject to
adjustment in certain events as hereinafter set forth.
1. Exercise of
Warrant.
a. The
Holder may exercise this Warrant according to its terms by (i) surrendering this
Warrant, properly endorsed, to the Company at the address set forth in Section
10, (ii) the subscription form attached hereto having then been duly executed by
the Holder (the “Form
of Exercise”), and (iii) payment of the purchase price being made to the
Company for the number of shares of the Warrant Stock specified in the
subscription form, or as otherwise provided in this Warrant, prior to 5:30 p.m.,
Eastern Time, on March 16, 2011 (the “Expiration Date”).
Such exercise shall be effected by the surrender of the Warrant, together with a
duly executed copy of the Form of Exercise, to Company at its principal office
and the payment to the Company of an amount equal to the aggregate Warrant Price
for the number of shares of Warrant Stock being purchased in cash, certified
check or wire transfer.
b. This
Warrant may be exercised in whole or in part so long as any exercise in part
hereof would not involve the issuance of fractional shares of Warrant Stock. If
exercised in part, the Company shall deliver to the Holder a new Warrant,
identical in form, in the name of the Holder, evidencing the right to purchase
the number of shares of Warrant Stock as to which this Warrant has not been
exercised, which new Warrant shall be signed by the Chairman, Chief Executive
Officer or President and the Secretary or Assistant Secretary of the Company.
The term Warrant as used herein shall include any subsequent Warrant issued as
provided herein.
c. No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. The Company shall pay cash in lieu of fractions
with respect to the Warrants based upon the fair market value of such fractional
shares of Common Stock (which shall be the closing price of such shares on the
exchange or market on which the Common Stock is then traded) at the time of
exercise of this Warrant.
d. In
the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the Warrant Stock so purchased, registered in
the name of the Holder, shall be delivered to the Holder within a reasonable
time after such rights shall have been so exercised. The person or entity in
whose name any certificate for the Warrant Stock is issued upon exercise of the
rights represented by this Warrant shall for all purposes be deemed to have
become the holder of record of such shares immediately prior to the close of
business on the date on which the Warrant was surrendered and payment of the
Warrant Price and any applicable taxes was made, irrespective of the date of
delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the opening
of business on the next succeeding date on which the stock transfer books are
open. The Company shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of shares of Common
Stock on exercise of this Warrant.
2. Disposition of Warrant Stock
and Warrant.
a. The
Holder hereby acknowledges that this Warrant and any Warrant Stock purchased
pursuant hereto are, as of the date hereof, not registered: (i) under the
Securities Act of 1933, as amended (the “Act”), on the ground
that the issuance of this Warrant is exempt from registration under Section 4(2)
of the Act as not involving any public offering or (ii) under any applicable
state securities law because the issuance of this Warrant does not involve any
public offering; and that the Company’s reliance on the Section 4(2) exemption
of the Act and under applicable state securities laws is predicated in part on
the representations hereby made to the Company by the Holder that it is
acquiring this Warrant and will acquire the Warrant Stock for investment for its
own account, with no present intention of dividing its participation with others
or reselling or otherwise distributing the same, subject, nevertheless, to any
requirement of law that the disposition of its property shall at all times be
within its control.
The
Holder hereby agrees that it will not sell or transfer all or any part of this
Warrant and/or Warrant Stock unless and until it shall first have given notice
to the Company describing such sale or transfer and furnished to the Company
either (i) an opinion, reasonably satisfactory to counsel for the Company, of
counsel (skilled in securities matters, selected by the Holder and reasonably
satisfactory to the Company) to the effect that the proposed sale or transfer
may be made without registration under the Act and without registration or
qualification under any state law, or (ii) an interpretative letter from the
Securities and Exchange Commission to the effect that no enforcement action will
be recommended if the proposed sale or transfer is made without registration
under the Act.
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b. If,
at the time of issuance of the shares issuable upon exercise of this Warrant, no
registration statement is in effect with respect to such shares under applicable
provisions of the Act, the Company may at its election require that the Holder
provide the Company with written reconfirmation of the Holder’s investment
intent and that any stock certificate delivered to the Holder of a surrendered
Warrant shall bear legends reading substantially as follows:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF
THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.”
In
addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate “stop transfer”
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.
3. Reservation of
Shares. The Company hereby agrees that at all times there shall be
reserved for issuance upon the exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance upon exercise of this
Warrant. The Company further agrees that all shares which may be issued upon the
exercise of the rights represented by this Warrant will be duly authorized and
will, upon issuance and against payment of the exercise price, be validly
issued, fully paid and non-assessable, free from all taxes, liens, charges and
preemptive rights with respect to the issuance thereof, other than taxes, if
any, in respect of any transfer occurring contemporaneously with such issuance
and other than transfer restrictions imposed by federal and state securities
laws.
4. Exchange, Transfer or
Assignment of Warrant. This Warrant is exchangeable, without expense, at
the option of the Holder, upon presentation and surrender hereof to the Company
or at the office of its stock transfer agent, if any, for other Warrants of
different denominations, entitling the Holder or Holders thereof to purchase in
the aggregate the same number of shares of Common Stock purchasable hereunder.
Upon surrender of this Warrant to the Company or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto duly executed
and funds sufficient to pay any transfer tax, the Company shall, without charge,
execute and deliver a new Warrant in the name of the assignee named in such
instrument of assignment and this Warrant shall promptly be canceled. This
Warrant may be divided or combined with other Warrants that carry the same
rights upon presentation hereof at the office of the Company or at the office of
its stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Warrants are to be issued and signed by the
Holder hereof.
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5. Loss, Theft, Destruction or
Mutilation. Upon receipt by the Company of evidence satisfactory to it,
in the exercise of its reasonable discretion, of the ownership and the loss,
theft, destruction or mutilation of this Warrant and, in the case of loss, theft
or destruction, of indemnity reasonably satisfactory to the Company and, in the
case of mutilation, upon surrender and cancellation thereof, the Company will
execute and deliver in lieu thereof, without expense to the Holder, a new
Warrant of like tenor dated the date hereof.
6. Warrant Holder Not a
Stockholder. The Holder of this Warrant, as such, shall not be entitled
by reason of this Warrant to any rights whatsoever as a stockholder of the
Company.
7. Notices. Any notice
required or contemplated by this Warrant shall be deemed to have been duly given
if transmitted by registered or certified mail, return receipt requested, or
nationally recognized overnight delivery service, to the Company at its
principal executive offices, or to the Holder at the name and address set forth
in the Warrant Register maintained by the Company.
8. Choice of Law. THIS
WARRANT IS ISSUED UNDER AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
9. Jurisdiction and
Venue. The parties hereby irrevocably consent to the in personam
jurisdiction and venue of the courts of the State of New York and of any federal
court located in such State in connection with any action or proceeding arising
out of or relating to this Warrant. EACH PARTY HERETO WAIVES TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS WARRANT.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its
behalf, in its corporate name and by its duly authorized officer, as of this
24th
day of March, 2010.
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By:
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/s/ Alan Pritzker | |
| Name: | Alan Pritzker | ||
| Title: | Chief Financial Officer and Secretary | ||
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FORM OF
EXERCISE
(to be
executed by the registered holder hereof)
The
undersigned hereby exercises the right to purchase _________ shares of common
stock (“Common
Stock”), of __________ evidenced by the within Warrant Certificate for a
Warrant Price of $______ per share and herewith makes payment of the purchase
price in full of (i) $__________ in cash. Kindly issue certificates for shares
of Common Stock (and for the unexercised balance of the Warrants evidenced by
the within Warrant Certificate, if any) in accordance with the instructions
given below.
Dated:____________________
, 20___ .
______________________________
Instructions
for registration of stock
_____________________________
Name
(Please Print)
Social
Security or other identifying Number:
Address:__________________________________
City/State
and Zip Code
Instructions
for registration of certificate representing
the
unexercised balance of Warrants (if any)
_____________________________
Name
(Please Print)
Social
Security or other identifying Number: ___________
Address:____________________________________
City, State and Zip Code
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