Attached files
| file | filename |
|---|---|
| 10-K/A - 3Power Energy Group Inc. | v180333_10ka.htm |
| EX-21 - 3Power Energy Group Inc. | v180333_ex21.htm |
| EX-32.1 - 3Power Energy Group Inc. | v180333_ex32-1.htm |
| EX-99.1 - 3Power Energy Group Inc. | v180333_ex99-1.htm |
| EX-10.15 - 3Power Energy Group Inc. | v180333_ex10-15.htm |
| EX-10.13 - 3Power Energy Group Inc. | v180333_ex10-13.htm |
| EX-31.1 - 3Power Energy Group Inc. | v180333_ex31-1.htm |
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH WARRANT OR SHARES UNDERLYING THE WARRANTS NOR
ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
(2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT
PRIME
SUN POWER INC.
COMMON
STOCK PURCHASE WARRANT “A-1”
|
Number
of Shares: 12,034,470
|
Holder:
Arimathea Limited
|
|
|
Original
Issue Date: May 22, 2008
|
||
|
Expiration
Date: May 22, 2018
|
||
|
Exercise
Price per Share: U.S. $2.32
|
Prime Sun
Power Inc., a company organized and existing under the laws of the State of
Nevada (the “Company”),
hereby certifies that, for value received, ARIMATHEA LIMITED, or its
registered assigns (the “Warrant
Holder”), is entitled, subject to the terms set forth below, to purchase
from the Company up to Twelve Million Thirty-Four Thousand Four Hundred and
Seventy (12,034,470) shares (as adjusted from time to time as provided in
Section 7, the “Warrant
Shares”) of common stock, $.0001 par value (the “Common
Stock”), of the Company at a price of two dollars and thirty-two cents
($2.32) per Warrant Share (as adjusted from time to time as provided in Section
7, the “Exercise
Price”), at such dates as set forth in Section 5 hereof and from time to
time from and after the date thereof and through and including 5:00 p.m. New
York City time on May 22, 2018 (the “Expiration
Date”), and subject to the following terms and conditions:
1. Registration
of Warrant. The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the “Warrant
Register”), in the name of the record Warrant Holder hereof from time to
time. The Company may deem and treat the registered Warrant Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof or
any distribution to the Warrant Holder, and for all other purposes, and the
Company shall not be affected by notice to the contrary.
2. Investment
Representation.
The Warrant Holder by accepting this Warrant represents that the Warrant Holder
is acquiring this Warrant for its own account or the account of an affiliate for
investment purposes and not with the view to any offering or distribution and
that the Warrant Holder will not sell or otherwise dispose of this Warrant or
the underlying Warrant Shares in violation of applicable securities laws. The
Warrant Holder acknowledges that the certificates representing any Warrant
Shares will bear a legend indicating that they have not been registered under
the United States Securities Act of 1933, as amended (the “Securities
Act”) and may not be sold by the Warrant Holder except pursuant to an
effective registration statement or pursuant to an exemption from registration
requirements of the Securities Act and in accordance with federal and state
securities laws. This Warrant was acquired by the Warrant Holder pursuant to the
exemption from the registration requirements of the Securities Act afforded by
Regulation S thereunder, and the Warrant Holder acknowledges and covenants that
this Warrant may not be exercised by or on behalf of a Person except as provided
in Regulation S). “Person” means an individual,
partnership, firm, limited liability company, trust, joint venture, association,
corporation, or any other legal entity.
3. Validity
of Warrant and Issue of Shares. The Company represents and
warrants that this Warrant has been duly authorized and validly issued and
warrants and agrees that all of the Common Stock that may be issued upon the
exercise of the rights represented by this Warrant will, when issued upon such
exercise, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof. The
Company further warrants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. Registration
of Transfers and Exchange of Warrants.
a. Subject
to compliance with the legend set forth on the face of this Warrant, the Company
shall register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant with the Form of Assignment attached
hereto duly completed and signed, to the Company at the office specified in or
pursuant to Section 13. Upon any such registration or transfer, a new warrant to
purchase Common Stock, in substantially the form of this Warrant (any such new
warrant, a “New
Warrant”), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the transferring
Warrant Holder. The acceptance of the New Warrant by the transferee thereof
shall be deemed the acceptance of such transferee of all of the rights and
obligations of a Warrant Holder of a Warrant.
b. This
Warrant is exchangeable, upon the surrender hereof by the Warrant Holder to the
office of the Company specified in or pursuant to Section 13 for one or more New
Warrants, evidencing in the aggregate the right to purchase the number of
Warrant Shares which may then be purchased hereunder. Any such New Warrant will
be dated the date of such exchange.
2
5.
Exercise
of Warrants.
a. This
Warrant shall vest and become exercisable upon its execution by the parties
hereto (the “Vesting
Date”).
b. Upon
surrender of this Warrant with the Form of Election to Purchase attached hereto
on Exhibit
A, duly completed and signed to the Company, at its address set forth in
Section 13, and upon payment and delivery of the Exercise Price per Warrant
Share multiplied by the number of Warrant Shares that the Warrant Holder intends
to purchase hereunder, in lawful money of the United States of America, in cash
or by certified or official bank check or checks, to the Company, all as
specified by the Warrant Holder in the Form of Election to Purchase, the Company
shall promptly (but in no event later than 7 business days after the Date of
Exercise (as defined herein)) issue or cause to be issued and cause to be
delivered to or upon the written order of the Warrant Holder and in such name or
names as the Warrant Holder may designate (subject to the restrictions on
transfer described in the legend set forth on the face of this Warrant), a
certificate for the Warrant Shares issuable upon such exercise, with such
restrictive legend as required by the Securities Act. Any person so designated
by the Warrant Holder to receive Warrant Shares shall be deemed to have become
holder of record of such Warrant Shares as of the Date of Exercise of this
Warrant.
c. A
“Date of
Exercise” means the date on which the Company shall have received (i)
this Warrant (or any New Warrant, as applicable), with the Form of Election to
Purchase attached hereto (or attached to such New Warrant) appropriately
completed and duly signed, and (ii) payment of the Exercise Price for the number
of Warrant Shares so indicated by the Warrant Holder to be
purchased.
d. This
Warrant shall be exercisable at any time after the Vesting Date and from time to
time for such number of Warrant Shares as is indicated in the attached Form of
Election To Purchase. If less than all of the Warrant Shares which may be
purchased under this Warrant are exercised at any time, the Company shall issue
or cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares for which no exercise has been
evidenced by this Warrant.
e. (i) Notwithstanding anything
contained herein to the contrary, the holder of this Warrant may, at its
election exercised in its sole discretion, exercise this Warrant in whole or in
part and, in lieu of making the cash payment otherwise contemplated to be made
to the Company upon such exercise in payment of the Aggregate Exercise Price,
elect instead to receive upon such exercise the “Net
Number” of shares of Common Stock determined according to the following
formula (a “Cashless
Exercise”):
Net
Number = (A x (B - C))/B
(ii) For
purposes of the foregoing formula:
A= the
total number shares with respect to which this Warrant is then being
exercised.
3
B= the
last reported sale price (as reported by Bloomberg) of the Common Stock on the
trading day immediately preceding the date of the Exercise Notice.
C= the
Warrant Exercise Price then in effect at the time of such exercise.
f. The
holder of this Warrant agrees not to exercise this Warrant for a period of
twelve (12) months. The holder of this Warrant also agrees not to elect a
Cashless Exercise so long as there is an effective registration statement for
the Warrant Shares.
6. Maximum
Exercise. The
Warrant Holder shall not be entitled to exercise this Warrant on a Date of
Exercise in connection with that number of shares of Common Stock which would be
in excess of the sum of (i) the number of shares of Common Stock beneficially
owned by the Warrant Holder and its affiliates on an exercise date, and (ii) the
number of shares of Common Stock issuable upon the exercise of this Warrant with
respect to which the determination of this limitation is being made on an
exercise date, which would result in beneficial ownership by the Warrant Holder
and its affiliates of more than 4.9% of the outstanding shares of Common Stock
on such date. This Section 6 may be waived or amended only with the consent of
the Holder and the consent of holders of a majority of the shares of outstanding
Common Stock of the Company. For the 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-3 thereunder.
7. Adjustment
of Exercise Price and Number of Shares. The character of the shares of
stock or other securities at the time issuable upon exercise of this Warrant and
the Exercise Price therefore, are subject to adjustment upon the occurrence of
the following events, and all such adjustments shall be cumulative, provided
however, that no adjustment of the number of shares of Common Stock or other
securities shall occur unless and until such cumulative adjustment shall equal
twenty percent (20%) of the number of shares of Common Stock or other securities
at the time issuable upon exercise of this Warrant:
a. Adjustment for Stock Splits, Stock
Dividends, Recapitalizations, Etc. The Exercise Price of this Warrant and
the number of shares of Common Stock or other securities at the time issuable
upon exercise of this Warrant shall be appropriately adjusted to reflect any
stock dividend, stock split, combination of shares, reclassification,
recapitalization, consolidation or other similar event affecting the number of
outstanding shares of stock or securities.
b. Adjustment for Reorganization,
Consolidation, Merger, Etc. In case of any consolidation or merger of the
Company with or into any other corporation, entity or person, or any other
corporate reorganization, in which the Company shall not be the continuing or
surviving entity of such consolidation, merger or reorganization (any such
transaction being hereinafter referred to as a "Reorganization"), then, in each
case, the holder of this Warrant, on exercise hereof, as determined at the sole
discretion of such holder, at any time after the consummation or effective date
of such Reorganization (the "Effective
Date"), shall receive, in lieu of the shares of stock or other securities
at any time issuable upon the exercise of the Warrant issuable on such exercise
prior to the Effective Date, the stock and other securities and property
(including cash) to which such holder would have been entitled upon the
Effective Date if such holder had exercised this Warrant immediately prior
thereto (all subject to further adjustment as provided in this
Warrant).
4
c. Certificate as to Adjustments.
In case of any adjustment or readjustment in the price or kind of securities
issuable on the exercise of this Warrant, the Company will promptly give written
notice thereof to the holder of this Warrant in the form of a certificate,
certified and confirmed by the Board of Directors of the Company, setting forth
such adjustment or readjustment and showing in reasonable detail the facts upon
which such adjustment or readjustment is based.
d. The Company sells, grants or issues
any shares, options, warrants, or any instrument convertible into shares or
equity in any form below the exercise price per share of the Warrant. In
the event the Company sells, grants or issues any shares, options, warrants, or
any instrument convertible into shares or equity in any form below the current
exercise price per share of the Warrant, other than Excluded Securities, then
the current exercise price per share for the Warrant shall be reduced to such
lower price per share. Such reduction shall be made at the time such transaction
is executed. “Excluded
Securities” means Company shares reserved for employee and consultant
stock options and compensatory equity incentive programs, stock grants made in
connection with debt or equity financing, and stock, options, warrants,
convertible instruments and any other securities issued in connection with the
mergers and acquisitions of companies or assets.
8. Fractional
Shares. The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. The number of full Warrant Shares that
shall be issuable upon the exercise of this Warrant shall be computed on the
basis of the aggregate number of Warrants Shares purchasable on exercise of this
Warrant so presented. If any fraction of a Warrant Share would, except for the
provisions of this Section 8, be issuable on the exercise of this Warrant, the
Company shall, at its option, (i) pay an amount in cash equal to the Exercise
Price multiplied by such fraction or (ii) round the number of Warrant Shares
issuable, up to the next whole number.
9. Sale or
Merger of the Company.
Upon a Change in Control, the restrictions contained in Section 6 shall
immediately be released and the Warrant Holder will have the right to exercise
this Warrant concurrently with such Change in Control event or any and all Term.
For purposes of this Warrant, the term “Change in
Control” shall mean a consolidation or merger of the Company with or into
another company or entity in which the Company is not the surviving entity or
the sale of all or substantially all of the assets of the Company to another
company or entity not controlled by the then existing stockholders of the
Company in a transaction or series of transactions.
10. Notice of
Intent to Sell or Merge the Company. The Company will give
Warrant Holder ten (10) business days notice before the event of a sale of all
or substantially all of the assets of the Company or the merger or consolidation
of the Company in a transaction in which the Company is not the surviving
entity.
5
11. Issuance
of Substitute Warrant. In the event of a merger,
consolidation, recapitalization or reorganization of the Company or a
reclassification of Company shares of stock, which results in an adjustment to
the number of shares subject to this Warrant and/or the Exercise Price
hereunder, the Company agrees to issue to the Warrant Holder a substitute
Warrant reflecting the adjusted number of shares and/or Exercise Price upon the
surrender of this Warrant to the Company.
12. Registration
of Shares.
(a) Inclusion on Registration
Statement. If the Company proposes to file a registration
statement under the Securities Act with respect to an offering for its own
account of any class of its equity securities (other than a registration
statement relating solely to employee benefit plans or filed in connection
with an exchange offer, a transaction to which Rule 145 (or any successor
provision) under the Securities Act applies or an offering of securities
solely to the Company's existing shareholders), then the Company shall in
each case give written notice of such proposed filing to the Warrant Holder
as soon as practicable (but no later than 20 business days) before the
anticipated filing date, and such notice shall offer the Warrant Holder
the opportunity to register such number of shares of Common Stock as the
Warrant Holder may request. The Warrant Holder shall so advise
the Company in writing within 10 business days after the date on which the
Company's notice is so given, setting forth the number of shares of Common
Stock for which registration is requested. If the Company's offering
is to be an underwritten offering, the Company shall, subject to the further
provisions of this Agreement, use its reasonable best efforts to cause the
managing underwriter or underwriters to permit the Warrant Holder to
be included in the registration for such offering to include such Common
Stock in such offering on the same terms and conditions as any similar
securities of the Company included therein. The right of the Warrant
Holder to registration pursuant to this Section 12 in connection with an
underwritten offering by the Company shall, unless the Company otherwise
assents, be conditioned upon the Warrant Holder's participation as a seller
in such underwritten offering and its execution of an underwriting
agreement with the managing underwriter or underwriters selected by the
Company. Notwithstanding the foregoing, if the managing underwriter
or underwriters of such offering deliver a written opinion to the Company
that either because of (a) the kind of securities that the Company, the
Warrant Holders and any other persons or entities intend to include in such
offering or (b) the size of the offering that the Company, the Warrant
Holders and any other persons or entities intend to make, the success of
the offering would be materially and adversely affected by inclusion of the
Common Stock requested to be included, then (i) in the event that the
size of the offering is the basis of such managing underwriter's opinion,
the number of shares of Common Stock to be registered and offered for the
accounts of holders shall be reduced pro rata on the basis of the number of
securities requested by such holders to be registered and offered 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 or
underwriters (provided that if securities are being registered and offered
for the account of other persons or entities in addition to the Company,
such reduction shall not be proportionally greater than any similar
reductions imposed on such other persons or entities) and (ii) in the event
that the combination of securities to be offered is the basis of
such managing underwriters opinion, (x) the Common Stock to be included in
such registration and offering shall be reduced as described in clause (i)
above or (y) if such actions would, in the reasonable judgment of the
managing underwriter, be insufficient to substantially eliminate the
adverse effect that inclusion of the Common Stock requested to be included
would have on such offering, such Common Stock will be excluded entirely
from such registration and offering. Any Common Stock excluded from
an underwriting shall, if applicable, be withdrawn from registration and
shall not, without the consent of the Company, be transferred in a public
distribution prior to the earlier of ninety (90) days (or such other
shorter period of time as the managing underwriter may require) after the
effective date of the registration statement or ninety (90) days after the
date the holders of such stock are notified of such
exclusion.
6
(b) Requirement of filing a Registration
Statement. At any time after the date hereof, the Warrant
Holder shall have the right to require the Company to prepare and file one
registration statement with the U.S. Securities and Exchange Commission, which
shall cover all of the shares of the Common Stock underlying this
Warrant. The Company shall:
(i) prepare
and file with the Securities and Exchange Commission a registration
statement on any form for which the Company then qualifies and which counsel for
the Company shall deem appropriate and which form shall be available
for the sale or distribution of such Common Stock in accordance with the
intended method of distribution thereof, and use its reasonable best
efforts to cause such registration statement to become effective;
and
(ii) prepare
and file with the Securities and Exchange Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
for a period of not less than ninety (90) days or such shorter period as
shall terminate when the distribution of all Common Stock covered by
such registration statement shall have terminated and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Warrant
Holder.
13. Notice. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
given (i) on the date they are delivered if delivered in person; (ii) on the
date initially received if delivered by facsimile transmission followed by
registered or certified mail confirmation; (iii) on the date delivered by an
overnight courier service; or (iv) on the third business day after it is mailed
by registered or certified mail, return receipt requested with postage and other
fees prepaid as follows:
If to the
Company:
Prime Sun
Power Inc.
14 Wall
Street,
20th
Floor,
New York,
NY 10005
212-618-1306
7
If to the Warrant
Holder:
Arimathea
Limited
c/o
Wilton Group
22 Athol
Street
Douglas
Isle of
Man IM1 1JA
14. Miscellaneous.
a. This
Warrant shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Warrant may be amended
only by a writing signed by the Company and the Warrant Holder.
b. Nothing
in this Warrant shall be construed to give to any person or corporation other
than the Company and the Warrant Holder any legal or equitable right, remedy or
cause of action under this Warrant; this Warrant shall be for the sole and
exclusive benefit of the Company and the Warrant Holder.
c. THE
PARTIES HERETO AGREE THAT THIS WARRANT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. ALL
PARTIES HERETO, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, WAIVE AND FOREVER RELINQUISH THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THIS WARRANT, ANY CONDUCT, ACT OR OMISSION OF ANY OTHER PARTY
HERETO. THE COMPANY AND THE WARRANT HOLDER EACH HEREBY IRREVOCABLY
CONSENT TO THE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN THE CITY
AND STATE OF NEW YORK IN THE BOROUGH OF MANHATTAN FOR ALL PURPOSES IN CONNECTION
WITH ANY ACTION OR PROCEEDING WHICH ARISES OUT OF OR RELATES TO THIS WARRANT
AGREE THAT ANY ACTION INSTITUTED UNDER THIS WARRANT SHALL BE BROUGHT ONLY IN
SUCH COURTS.
d. The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e. In
case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceablilty of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonably
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
8
f. The
Warrant Holder shall not, by virtue hereof, be entitled to any voting or other
rights of a shareholder of the Company, either at law or equity, and the rights
of the Warrant Holder are limited to those expressed in this
Warrant.
[SIGNATURES
ON FOLLOWING PAGE]
9
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by the
authorized officer as of the date first above stated and agreed by the Warrant
Holder.
|
PRIME
SUN POWER INC., a Nevada corporation
|
||
|
By:
|
/s/ Barbara Salz
|
|
|
Name:
|
Barbara
Salz
|
|
|
Title:
|
Corporate
Secretary
|
|
| WARRANT HOLDER: | ||
| ARIMATHEA LIMITED | ||
|
By:
|
|
|
|
Name:
|
||
|
Title:
|
||
10
EXHIBIT
A
FORM
OF ELECTION TO PURCHASE
(To be
executed by the Warrant Holder to exercise the right to purchase shares of
Common Stock under the foregoing Warrant)
To: Prime Sun Power Inc.:
In
accordance with the Warrant enclosed with this Form of Election to Purchase, the
undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock (“Common
Stock”), $.0001 par value, of Prime Sun Power Inc., and encloses the
Warrant and $2.32 for each Warrant Share being purchased or an aggregate of
$________________ in cash or certified or official bank check or checks, which
sum represents the aggregate Exercise Price (as defined in the Warrant) together
with any applicable taxes payable by the undersigned pursuant to the
Warrant.
The
undersigned requests that certificates for the shares of Common Stock issuable
upon this exercise be issued in the name of:
|
(Please
print name and address)
|
|
(Please
insert Social Security or Tax
Identification
Number)
|
If the
number of shares of Common Stock issuable upon this exercise shall not be all of
the shares of Common Stock which the undersigned is entitled to purchase in
accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
|
(Please
print name and
address)
|
11
|
Dated:
_______________
|
Name
of Warrant
Holder:
|
|
(Print)
|
|
|
(By:)
|
|
|
(Name:)
|
|
|
(Title:)
|
|
|
Signature
must conform in all respects to name of Warrant Holder as specified on the
face of the
Warrant
|
|
12