Attached files
file | filename |
---|---|
8-K - Fuer International Inc. | v188653_8k.htm |
EX-2.1 - Fuer International Inc. | v188653_ex2-1.htm |
EX-4.5 - Fuer International Inc. | v188653_ex4-5.htm |
EX-2.2 - Fuer International Inc. | v188653_ex2-2.htm |
EX-10.15 - Fuer International Inc. | v188653_ex10-15.htm |
EX-10.14 - Fuer International Inc. | v188653_ex10-14.htm |
EX-10.18 - Fuer International Inc. | v188653_ex10-18.htm |
EX-10.16 - Fuer International Inc. | v188653_ex10-16.htm |
EX-10.17 - Fuer International Inc. | v188653_ex10-17.htm |
Warrant
Certificate No. 1
NEITHER
THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES ISSUABLE UPON
THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS, AND NEITHER SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) AN
EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE COMPANY RECEIVES AN OPINION OF
COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAWS.
Dated:
June 17th,
2010
|
Void
After: June 17th,
2013
|
FOREX365,
INC.
WARRANT
TO PURCHASE COMMON STOCK
Forex365,
Inc. a Nevada corporation (the “Company”), for value received
hereby issues to Allied Merit International Investment, Inc. (the “Holder”) this Warrant (the
“Warrant”) to purchase,
873,315 shares
(each such share as from time to time adjusted as hereinafter provided being a
“Warrant Share” and all
such shares being the “Warrant
Shares”) of the Company’s Common Stock (as defined below), at the
Exercise Price (as defined below), as adjusted from time to time as provided
herein, on or before June 17th, 2013 (the “Expiration Date”), all subject
to the following terms and conditions. Unless otherwise defined in
this Warrant, terms appearing in initial capitalized form shall have the meaning
ascribed to them in that certain Purchase Agreement dated as of the date hereof
(the “Effective Date”) among the Company and the purchasers signatory (the
“Purchase
Agreement”)
As used
in this Warrant, (i) “Business
Day” means any day other than Saturday, Sunday or any other day on which
commercial banks in the City of New York, New York, are authorized or required
by law or executive order to close; (ii) “Common Stock” means the common
stock of the Company, $0.001 par value per share, including any securities
issued or issuable with respect thereto or into which or for which such shares
may be exchanged for, or converted into, pursuant to any stock dividend, stock
split, stock combination, recapitalization, reclassification, reorganization or
other similar event; (iii) “Exercise Price” means $2.58
[105% of the purchase price in the $2.5 mill financing] per share of Common
Stock, subject to adjustment as provided herein; (iv) “Trading Day” means any day on
which the Common Stock is traded on the primary national or regional stock
exchange on which the Common Stock is listed, or if not so listed, the NASD OTC
Bulletin Board if quoted thereon is open for the transaction of business; and
(v) “Affiliate” means
any Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, a Person, as such
terms are used and construed in Rule 144 promulgated under the Securities Act of
1933, as amended (the “Securities Act”).
1.
|
DURATION
AND EXERCISE OF WARRANTS
|
(a)
Exercise Period. The
Holder may exercise this Warrant in whole or in part on any Business Day on or
before 5:00 P.M., Eastern Daylight Time, on the Expiration Date, at which time
this Warrant shall become void and of no value; provided, that the
Holder must give the Company notice of its intention to exercise the Warrant at
least 5 days prior to the intended date of exercise.
(b)
Exercise
Procedures.
(i) While
this Warrant remains outstanding and exercisable in accordance with Section
1(a), in addition to the manner set forth in Section l(b)(ii) below, the Holder
may exercise this Warrant in whole or in part at any time and from time to time
by:
(A)
delivery
to the Company of a duly executed copy of the Notice of Exercise attached as
Exhibit A not less than
5 days prior to the date upon which the Investor intends to exercise the
Warrant;
(B)
surrender
of this Warrant to the Secretary of the Company at its principal offices or at
such other office or agency as the Company may specify in writing to the Holder;
and
(C)
payment
of the then applicable Exercise Price per share multiplied by the number of
Warrant Shares being purchased upon exercise of the Warrant (such amount, the
“Aggregate Exercise
Price”) made in the form of cash, or by certified check, bank draft or
money order payable in lawful money of the United States of America or in the
form of a Cashless Exercise to the extent permitted in Section l(c)(ii)
below.
(ii) At any
time when a registration statement required by the Registration Rights Agreement
covering the resale of the Warrant Shares by the Holder is not available after
the first anniversary of the Effective Date, the Holder may, in its sole
discretion, exercise all or any part of the Warrant in a “cashless” or
“net-issue” exercise (a “Cashless Exercise”) by
delivering to the Company (1) the Notice of Exercise and (2) the Warrant,
pursuant to which the Holder shall surrender the right to receive upon exercise
of this Warrant, a number of Warrant Shares having a value (as determined below)
equal to the Aggregate Exercise Price, in which case, the number of Warrant
Shares to be issued to the Holder upon such exercise shall be calculated using
the following formula:
X
|
=
|
Y * (A - B)
|
A
|
with:
|
X =
|
the
number of Warrant Shares to be issued to the
Holder
|
2
|
Y
=
|
the
number of Warrant Shares with respect to which the Warrant is being
exercised
|
|
A
=
|
the
fair value per share of Common Stock on the date of exercise of this
Warrant
|
|
B
=
|
the
then-current Exercise Price of the
Warrant
|
Solely
for the purposes of this paragraph, “fair value” shall be determined either (A)
reasonably and in good faith by the Board of Directors of the Company as of the
date which the Notice of Exercise is deemed to have been sent to the Company, or
(B) as the average of the closing sales prices, as quoted on the primary
national or regional stock exchange on which the Common Stock is listed, or, if
not listed, the NASD OTC Bulletin Board if quoted thereon, on the twenty (20)
trading days immediately preceding the date on which the Notice of Exercise is
deemed to have been sent to the Company, whichever of (A) or (B) is
greater.
Notwithstanding
the foregoing provisions of this Section l(b)(ii), the Holder may not make a
Cashless Exercise if and to the extent that such exercise would require the
Company to issue a number of shares of Common Stock in excess of its authorized
but unissued shares of Common Stock, less all amounts of Common Stock that have
been reserved for issue upon the conversion of all outstanding securities
convertible into shares of Common Stock and the exercise of all outstanding
options, warrants and other rights exercisable for shares of Common Stock. If
the Company does not have the requisite amount of authorized but unissued shares
of Common Stock to permit the Holder to make a Cashless Exercise, the Company
shall use its commercially best efforts to obtain the necessary shareholder
consent to increase the authorized number of shares of Common Stock to permit
such Holder to make a Cashless Exercise pursuant to this Section
l(b)(ii).
(iii) Upon
the exercise of this Warrant in compliance with the provisions of this Section
1(b), and except as limited pursuant to the last paragraph of Section l(b)(ii),
the Company shall promptly issue and cause to be delivered to the Holder a
certificate for the Warrant Shares purchased by the Holder. Each exercise of
this Warrant shall be effective immediately prior to the close of business on
the date (the “Date of
Exercise”) which the conditions set forth in Section 1(b) have been
satisfied, as the case may be. On or before the first Business Day following the
date on which the Company has received each of the Exercise Notice and the
Aggregate Exercise Price (or notice of a Cashless Exercise in accordance with
Section l(b)(ii)) (the “Exercise Delivery Documents”),
the Company shall transmit by facsimile an acknowledgment of confirmation of
receipt of the Exercise Delivery Documents to the Holder and the Company’s
transfer agent (the “Transfer
Agent”). On or before the third Business Day following the date on which
the Company has received all of the Exercise Delivery Documents (the “Share Delivery Date”), the
Company shall (X) provide that the Transfer Agent is participating in The
Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program, upon the request of the Holder, credit such
aggregate number of shares of Common Stock to which the Holder is entitled
pursuant to such exercise to the Holder’s or its designee’s balance account with
DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the
Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Notice and Aggregate Exercise Price
referred to in Section l(b)(i)(A) above or notification to the Company of a
Cashless Exercise referred to in Section l(b)(ii), the Holder shall be deemed
for all corporate purposes to have become the holder of record of the Warrant
Shares with respect to which this Warrant has been exercised, irrespective of
the date of delivery of the certificates evidencing such Warrant Shares. If this
Warrant is submitted in connection with any exercise pursuant to Section 1(a)
and the number of Warrant Shares represented by this Warrant submitted for
exercise is greater than the actual number of Warrant Shares being acquired upon
such an exercise, then the Company shall as soon as practicable and in no event
later than three (3) Business Days after any exercise and at its own expense,
issue a new Warrant (in accordance with Section 1(b)) of like tenor representing
the right to purchase the number of Warrant Shares purchasable immediately prior
to such exercise under this Warrant, less the number of Warrant Shares with
respect to which this Warrant is exercised. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant, but rather the number of
shares of Common Stock to be issued shall be rounded up to the nearest whole
number. The Company shall pay any and all taxes which may be payable with
respect to the issuance and delivery of Warrant Shares upon exercise of this
Warrant.
3
(iv) If
the Company shall fail for any reason or for no reason to issue to the Holder,
within three (3) Business Days of receipt of the Exercise Delivery Documents, a
certificate for the number of shares of Common Stock to which the Holder is
entitled and register such shares of Common Stock on the Company’s share
register or to credit the Holder’s balance account with DTC for such number of
shares of Common Stock to which the Holder is entitled upon the Holder’s
exercise of this Warrant, and if on or after such Business Day the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of shares of Common Stock
issuable upon such exercise that the Holder anticipated receiving from the
Company (a “Buy-In”),
then the Company shall, within three (3) Business Days after the Holder’s
request and in the Holder’s discretion, either (i) pay cash to the Holder in an
amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point
the Company’s obligation to deliver such certificate (and to issue such shares
of Common Stock) shall terminate, or (ii) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing such shares of
Common Stock and pay cash to the Holder in an amount equal to the excess (if
any) of the Buy-In Price over the product of (A) such number of shares of Common
Stock, times (B) the closing bid price on the date of exercise.
(c) Partial Exercise. This Warrant shall
be exercisable, either in its entirety or, from time to time, for part only of
the number of Warrant Shares referenced by this Warrant. If this Warrant is
exercised in part, the Company shall issue, at its expense, a new Warrant, in
substantially the form of this Warrant, referencing such reduced number of
Warrant Shares which remain subject to this Warrant.
(d) Disputes. In the case of a dispute as
to the determination of the Exercise Price or the arithmetic calculation of the
Warrant Shares, the Company shall promptly issue to the Holder the number of
Warrant Shares that are not disputed and resolve such dispute in accordance with
Section 15.
4
2.
|
ISSUANCE
OF WARRANT SHARES
|
(a) The
Company covenants that all Warrant Shares will, upon issuance in accordance with
the terms of this Warrant, be (i) duly authorized, fully paid and
non-assessable, and (ii) free from all liens, charges and security interests,
with the exception of claims arising through the acts or omissions of any Holder
and except as arising from applicable Federal and state securities
laws.
(b) The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose in the name of the record holder of such Warrant from time to
time. The Company may deem and treat the registered Holder of this Warrant as
the absolute owner thereof for the purpose of any exercise thereof, any
distribution to the Holder thereof and for all other purposes.
(c) The
Company will not, by amendment of its certificate of incorporation, by-laws or
through any reorganization, 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 by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all the action as may be necessary or appropriate in order to protect
the rights of the Holder to exercise this Warrant, or against impairment of such
rights.
3.
|
ADJUSTMENTS
OF EXERCISE PRICE, NUMBER AND TYPE OF WARRANT
SHARES
|
(a) The
Exercise Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3(a); provided, that notwithstanding the
provisions of this Section 3, the Company shall not be required to make any
adjustment if and to the extent that such adjustment would require the Company
to issue a number of shares of Common Stock in excess of its authorized but
unissued shares of Common Stock, less all amounts of Common Stock that have been
reserved for issue upon the conversion of all outstanding securities convertible
into shares of Common Stock and the exercise of all outstanding options,
warrants and other rights exercisable for shares of Common Stock. If the Company
does not have the requisite amount of authorized but unissued shares of Common
Stock to make any adjustment, the Company shall use its commercially best
efforts to obtain the necessary shareholder consent to increase the authorized
number of shares of Common Stock to permit such Holder to make a Cashless
Exercise pursuant to this Section 3(a).
(i) Subdivision or Combination of Stock.
In case the Company shall at any time subdivide (whether by way of stock
dividend, stock split or otherwise) its outstanding shares of Common Stock into
a greater number of shares, the Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced and the Warrant Shares shall
be proportionately increased, and conversely, in case the outstanding shares of
Common Stock of the Company shall be combined (whether by way of stock
combination, reverse stock split or otherwise) into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased and the number of Warrant Shares shall be
proportionately decreased. The Exercise Price and the Warrant Shares, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described in this Section 3(a)(i).
5
(ii) Dividends in Stock, Property,
Reclassification. If at any time, or from time to time, the holders of
Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received or become entitled to
receive, without payment therefore:
(A) any
shares of stock or other securities which are at any time directly or indirectly
convertible into or exchangeable for Common Stock, or any rights or options to
subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution, or
(B) additional
stock or other securities or property (including cash) by way of spin-off,
split-up, reclassification, combination of shares or similar corporate
rearrangement, (other than shares of Common Stock issued as a stock split or
adjustments in respect of which shall be covered by the terms of Section 3(a)(i)
above), then and in each such case, the Exercise Price and the number of Warrant
Shares to be obtained upon exercise of this Warrant shall be adjusted
proportionately, and the Holder hereof shall, upon the exercise of this Warrant,
be entitled to receive, in addition to the number of shares of Common Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including cash
in the cases referred to in clause (ii) above) which such Holder would hold on
the date of such exercise had he been the holder of record of such Common Stock
as of the date on which holders of Common Stock received or became entitled to
receive such shares or all other additional stock and other securities and
property. The Exercise Price and the Warrant Shares, as so adjusted, shall be
readjusted in the same manner upon the happening of any successive event or
events described in this Section 3(a)(ii).
(iii) Reorganization, Reclassification,
Consolidation, Merger or Sale. If any recapitalization, reclassification
or reorganization of the capital stock of the Company, or any consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of its assets or other transaction shall be effected in such a
way that holders of Common Stock shall be entitled to receive stock, securities,
or other assets or property (an “Organic Change”), then, as a
condition of such Organic Change, lawful and adequate provisions shall be made
by the Company whereby the Holder hereof shall thereafter have the right to
purchase and receive (in lieu of the shares of the Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented by this Warrant) such shares of stock, securities or other
assets or property as may be issued or payable with respect to or in exchange
for a number of outstanding shares of such Common Stock equal to the number of
shares of such stock immediately theretofore purchasable and receivable assuming
the full exercise of the rights represented by this Warrant. In the event of any
Organic Change, appropriate provision shall be made by the Company with respect
to the rights and interests of the Holder of this Warrant to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the Exercise Price and of the number of shares purchasable and receivable upon
the exercise of this Warrant) shall thereafter be applicable, in relation to any
shares of stock, securities or assets thereafter deliverable upon the exercise
hereof. The Company will not effect any such consolidation, merger or sale
unless, prior to the consummation thereof, the successor corporation (if other
than the Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument reasonably
satisfactory in form and substance to the Holders executed and mailed or
delivered to the registered Holder hereof at the last address of such Holder
appearing on the books of the Company, the obligation to deliver to such Holder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Holder may be entitled to purchase. If there is an Organic
Change, then the Company shall cause to be mailed to the Holder at its last
address as it shall appear on the books and records of the Company, at least 15
calendar days before the effective date of the Organic Change, a notice stating
the date on which such Organic Change is expected to become effective or close,
and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares for securities, cash, or other
property delivered upon such Organic Change; provided, that the failure to mail
such notice or any defect therein or in the mailing thereof shall not affect the
validity of the corporate action required to be specified in such notice. The
Holder is entitled to exercise this Warrant during the 15-day period commencing
on the date of such notice to the effective date of the event triggering such
notice. In any event, the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall be deemed to assume such obligation to deliver to such Holder such
shares of stock, securities or assets even in the absence of a written
instrument assuming such obligation to the extent such assumption occurs by
operation of law.
6
(b) Certificate as to Adjustments. Upon
the occurrence of each adjustment or readjustment pursuant to this Section 3,
the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each Holder of
this Warrant a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based.
The Company shall promptly furnish or cause to be furnished to such Holder a
like certificate setting forth: (i) such adjustments and readjustments; and (ii)
the number of shares and the amount, if any, of other property which at the time
would be received upon the exercise of the Warrant.
(c) Certain Events. If any event occurs as
to which the other provisions of this Section 3 are not strictly applicable but
the lack of any adjustment would not fairly protect the purchase rights of the
Holder under this Warrant in accordance with the basic intent and principles of
such provisions, or if strictly applicable would not fairly protect the purchase
rights of the Holder under this Warrant in accordance with the basic intent and
principles of such provisions, then the Company’s Board of Directors will, in
good faith, make an appropriate adjustment to protect the rights of the Holder;
provided, that no such
adjustment pursuant to this Section 3(c) will increase the Exercise Price or
decrease the number of Warrant Shares as otherwise determined pursuant to this
Section 3.
7
(d) Adjustment of Exercise Price Upon Issuance of
Additional Shares of Common Stock. In the event the Company shall at any
time prior to the [eighteenth] month anniversary of the Effective Date issue
Additional Shares of Common Stock, as defined below, without consideration or
for a consideration per share less than the Exercise Price in effect immediately
prior to such issue, then the Exercise Price shall be reduced, concurrently with
such issue, to a price (calculated to the nearest cent) determined by
multiplying such Exercise Price by a fraction, (A) the numerator of which shall
be (1) the number of shares of Common Stock outstanding immediately prior to
such issue plus (2) the number of shares of Common Stock which the aggregate
consideration received or to be received by the Company for the total number of
Additional Shares of Common Stock so issued would purchase at such Exercise
Price; and (B) the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued; provided that, (i) for the purpose of
this Section 3(d), all shares of Common Stock issuable upon conversion or
exchange of convertible securities outstanding immediately prior to such issue
shall be deemed to be outstanding, and (ii) the number of shares of Common Stock
deemed issuable upon conversion or exchange of such outstanding convertible
securities shall be determined without giving effect to any adjustments to the
conversion or exchange price or conversion or exchange rate of such convertible
securities resulting from the issuance of Additional Shares of Common Stock that
is the subject of this calculation. For purposes of this Warrant, “Additional
Shares of Common Stock” shall mean all shares of Common Stock issued by the
Company after the Effective Date (including without limitation any shares of
Common Stock issuable upon conversion or exchange of any convertible securities
or upon exercise of any option or warrant, on an as-converted basis), other
than: (i) shares of Common Stock issued or issuable upon conversion or exchange
of any convertible securities or exercise of any options outstanding on the
Effective Date; (ii) shares of Common Stock issued or issuable by reason of a
dividend, stock split, split-up or other distribution on shares of Common Stock
that is covered by Sections 3(a)(i) through 3(a)(iii) above; or (iii) shares of
Common Stock (or options with respect thereto) issued or issuable to employees
or directors of, or consultants to, the Company or any of its subsidiaries
pursuant to a plan, agreement or arrangement approved by the Board of Directors
of the Company. The provisions of this Section 3(d) shall not operate
to increase the Exercise Price.
4.
|
TRANSFERS
AND EXCHANGES OF WARRANT AND WARRANT
SHARES
|
(a) Registration of Transfers and
Exchanges. Subject to Section 4(c), upon the Holder’s surrender of this
Warrant, with a duly executed copy of the Assignment Notice attached as Exhibit B, to the Secretary of
the Company at its principal offices or at such other office or agency as the
Company may specify in writing to the Holder, the Company shall register the
transfer of all or any portion of this Warrant. Upon such registration of
transfer the Company shall issue a new Warrant, in substantially the form of
this Warrant, evidencing the acquisition rights transferred to the transferee
and a new Warrant, in similar form, evidencing the remaining acquisition rights
not transferred, to the Holder requesting the transfer.
(b) Warrant Exchangeable for Different
Denominations. The Holder may exchange this Warrant for a new Warrant or
Warrants, in substantially the form of this Warrant, evidencing in the aggregate
the right to purchase the number of Warrant Shares which may then be purchased
hereunder, each of such new Warrants to be dated the date of such exchange and
to represent the right to purchase such number of Warrant Shares as shall be
designated by the Holder. The Holder shall surrender this Warrant with duly
executed instructions regarding such re-certification of this Warrant to the
Secretary of the Company at its principal offices or at such other office or
agency as the Company may specify in writing to the Holder.
(c) Restrictions on Transfers. This
Warrant may not be transferred at any time without (i) registration under the
Securities Act or (ii) an exemption from such registration and a written opinion
of legal counsel addressed to the Company that the proposed transfer of the
Warrant may be effected without registration under the Securities Act, which
opinion will be in form and from counsel reasonably satisfactory to the
Company.
8
(d) Permitted Transfers and Assignments.
Notwithstanding any provision to the contrary in this Section 4, the Holder may
transfer, with or without consideration, this Warrant or any of the Warrant
Shares (or a portion thereof) to the Holder’s Affiliates without obtaining the
opinion from counsel that may be required by Section 4(c)(ii), provided, that the Holder delivers to
the Company and its counsel certification, documentation, and other assurances
reasonably required by the Company’s counsel to enable the Company’s counsel to
render an opinion to the Company’s Transfer Agent that such transfer does not
violate applicable securities laws.
5.
|
MUTILATED
OR MISSING WARRANT CERTIFICATE
|
If this
Warrant is mutilated, lost, stolen or destroyed, upon request by the Holder, the
Company will, at its expense, issue, in exchange for and upon cancellation of
the mutilated Warrant, or in substitution for the lost, stolen or destroyed
Warrant, a new Warrant, in substantially the form of this Warrant, representing
the right to acquire the equivalent number of Warrant Shares, provided, that, as a prerequisite to
the issuance of a substitute Warrant, the Company may require satisfactory
evidence of loss, theft or destruction as well as an indemnity from the Holder
of a lost, stolen or destroyed Warrant.
6.
|
PAYMENT
OF TAXES
|
The
Company will pay all transfer and stock issuance taxes attributable to the
preparation, issuance and delivery of this Warrant and the Warrant Shares (and
replacement Warrants) including, without limitation, all documentary and stamp
taxes; provided, however, that the Company shall not be required to pay any tax
in respect of the transfer of this Warrant, or the issuance or delivery of
certificates for Warrant Shares or other securities in respect of the Warrant
Shares to any person or entity other than to the Holder or its
transferee.
7.
|
FRACTIONAL
WARRANT SHARES
|
No
fractional Warrant Shares shall be issued upon exercise of this Warrant. The
Company, in lieu of issuing any fractional Warrant Share, shall round up the
number of Warrant Shares issuable to nearest whole share.
8.
|
NO
STOCK RIGHTS AND LEGEND
|
No holder
of this Warrant, as such, shall be entitled to vote or be deemed the holder of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained herein be construed to confer upon
the holder of this Warrant, as such, the rights of a stockholder of the Company
or the right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or give or withhold consent to any
corporate action or to receive notice of meetings or other actions affecting
stockholders (except as provided herein), or to receive dividends or
subscription rights or otherwise (except as provide herein).
9
Each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant Certificate, and each certificate for Warrant Shares issued to any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS,
AND NEITHER SUCH SECURITIES 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 ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.”
9.
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REGISTRATION
UNDER THE SECURITIES ACT OF 1933
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The
Company agrees to register the Warrant Shares for resale under the Securities
Act on the terms and subject to the conditions set forth in the Registration
Rights Agreement between the Company and each of the Investors party to the
Subscription Agreement, pursuant to which this Warrant was issued.
10.
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NOTICES
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All
notices, consents, waivers, and other communications under this Warrant must be
in writing and will be deemed given to a party when (a) delivered to the
appropriate address by hand or by nationally recognized overnight courier
service (costs prepaid); (b) sent by facsimile or e-mail with confirmation of
transmission by the transmitting equipment; (c) received or rejected by the
addressee, if sent by certified mail, return receipt requested, if to the
registered Holder hereof; or (d) seven days after the placement of the notice
into the mails (first class postage prepaid), to the Holder at the address,
facsimile number, or e-mail address furnished by the registered Holder to the
Company in accordance with the Subscription Agreement, or if to the Company, to
it at 1070 Flynn Road, Camarillo, California 93012, Attention: Chief Financial
Officer (or to such other address, facsimile number, or e-mail address as the
Holder or the Company as a party may designate by notice the other
party).
11.
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SEVERABILITY
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If a
court of competent jurisdiction holds any provision of this Warrant invalid or
unenforceable, the other provisions of this Warrant will remain in full force
and effect. Any provision of this Warrant held invalid or unenforceable only in
part or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
10
12.
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BINDING
EFFECT
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This
Warrant shall be binding upon and inure to the sole and exclusive benefit of the
Company, its successors and assigns, the registered Holder or Holders from time
to time of this Warrant and the Warrant Shares.
13.
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SURVIVAL
OF RIGHTS AND DUTIES
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This
Warrant shall terminate and be of no further force and effect on the earlier of
5:00 P.M., Eastern Daylight Time, on the Expiration Date or the date on which
this Warrant has been exercised.
14.
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GOVERNING
LAW
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This
Warrant will be governed by and construed under the laws of the State of New
York without regard to conflicts of laws principles that would require the
application of any other law.
15.
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DISPUTE
RESOLUTION
|
In the
case of a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall submit the
disputed determinations or arithmetic calculations via facsimile within two
Business Days of receipt of the Exercise Notice giving rise to such dispute, as
the case may be, to the Holder. If the Holder and the Company are unable to
agree upon such determination or calculation of the Exercise Price or the
Warrant Shares within three Business Days of such disputed determination or
arithmetic calculation being submitted to the Holder, then the Company shall,
within two Business Days submit via facsimile (a) the disputed determination of
the Exercise Price to an independent, reputable investment bank selected by the
Company and approved by the Holder or (b) the disputed arithmetic calculation of
the Warrant Shares to the Company’s independent, outside accountant. The Company
shall cause at its expense the investment bank or the accountant, as the case
may be, to perform the determinations or calculations and notify the Company and
the Holder of the results no later than ten (10) Business Days from the time it
receives the disputed determinations or calculations. Such investment bank’s or
accountant’s determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
16.
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NOTICES
OF RECORD DATE
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Upon (a)
any establishment by the Company of a record date of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or right or option to acquire
securities of the Company, or any other right, or (b) any capital
reorganization, reclassification, recapitalization, merger or consolidation of
the Company with or into any other corporation, any transfer of all or
substantially all the assets of the Company, or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, or the sale, in a single
transaction, of a majority of the Company’s voting stock (whether newly issued,
or from treasury, or previously issued and then outstanding, or any combination
thereof), the Company shall mail to the Holder at least ten (10) Business Days,
or such longer period as may be required by law, prior to the record date
specified therein, a notice specifying (i) the date established as the record
date for the purpose of such dividend, distribution, option or right and a
description of such dividend, option or right, (ii) the date on which any such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation or winding up, or sale is expected to become effective and (iii) the
date, if any, fixed as to when the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, transfer,
consolation, merger, dissolution, liquidation or winding up.
11
17.
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RESERVATION
OF SHARES
|
The
Company shall reserve and keep available out of its authorized but unissued
shares of Common Stock for issuance upon the exercise of this Warrant, free from
preemptive rights, such number of shares of Common Stock for which this Warrant
shall from time to time be exercisable. The Company will take all such
reasonable action as may be necessary to assure that such Warrant Shares may be
issued as provided herein without violation of any applicable law or regulation.
Except and to the extent as waived or consented to by the Holder, the Company
shall not by any action, including, without limitation, amending its certificate
of incorporation, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, and will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of the Holder as set forth in
this Warrant. Without limiting the generality of the foregoing, the Company
covenants that it will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares upon the exercise of this Warrant and use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents, including but not limited to consents from the Company’s shareholders
or Board of Directors or any public regulatory body, as may be necessary to
enable the Company to perform its obligations under this Warrant.
18.
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NO
THIRD PARTY RIGHTS
|
This
Warrant is not intended, and will not be construed, to create any rights in any
parties other than the Company and the Holder, and no person or entity may
assert any rights as third-party beneficiary hereunder.
12
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date hereof.
Forex365,
Inc.
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|
By:
|
|
Name:
Zhang
Li
|
|
Title:
Chief
Executive Officer
|
EXHIBIT
A
EXERCISE
FORM
(To be
executed by the Holder of Warrant at least 5 days
prior to
the date that such Holder desires to exercise Warrant)
To
Forex365, Inc.:
The
undersigned hereby irrevocably elects to exercise this Warrant on ______________
(date), which is at least [___] days from the date set forth below that this
Exercise Form was executed, and to purchase thereunder, _____________ full
shares of Forex365, Inc. common stock issuable upon exercise of the Warrant and
delivery of:
(1) $_________
(in cash as provided for in the foregoing Warrant) and any applicable taxes
payable by the undersigned pursuant to such Warrant; and
(2) __________
shares of Common Stock (pursuant to a Cashless Exercise in accordance with
Section l(c)(ii) of the Warrant) (check here if the undersigned desires to
deliver an unspecified number of shares to be equal the number sufficient to
effect a Cashless Exercise [______]).
The
undersigned requests that certificates for such shares be issued in the name
of:
_________________________________________________
(Please
print name, address and social security or federal employer
identification
number (if applicable))
________________________________________________
________________________________________________
If the
shares issuable upon this exercise of the Warrant are not all of the Warrant
Shares which the Holder is entitled to acquire upon the exercise of the Warrant,
the undersigned requests that a new Warrant evidencing the rights not so
exercised be issued in the name of and delivered to:
____________________________________________
(Please
print name, address and social security or federal employer
identification
number (if applicable))
________________________________________________
________________________________________________
Name
of Holder (print):_________________________
|
(Signature):___________________________________
|
(By:)________________________________________
|
(Title:)_______________________________________
|
Dated:_______________________________________
|
EXHIBIT
B
FORM OF
ASSIGNMENT
FOR VALUE
RECEIVED, ______________________________ hereby sells, assigns and transfers to
each assignee set forth below all of the rights of the undersigned under the
Warrant (as defined in and evidenced by the attached Warrant) to acquire the
number of Warrant Shares set opposite the name of such assignee below and in and
to the foregoing Warrant with respect to said acquisition rights and the shares
of Forex365, Inc. issuable upon exercise of the Warrant:
Name of Assignee
|
Address
|
Number of Shares
|
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|
||
|
|
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|
|
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||
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|
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If the
total of the Warrant Shares are not all of the Warrant Shares evidenced by the
foregoing Warrant, the undersigned requests that a new Warrant evidencing the
right to acquire the Warrant Shares not so assigned be issued in the name of and
delivered to the undersigned.
Name
of Holder (print):________________________
|
(Signature):__________________________________
|
(By:)_______________________________________
|
(Title:)______________________________________
|
Dated:______________________________________
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