NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER
THIS WARRANT NOR SUCH SHARES MAY BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENT, AND, IF AN EXEMPTION SHALL BE
APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Void after 5:00 p.m. Eastern Standard Time, on June [O], 2015.
WARRANT TO PURCHASE COMMON STOCK
OF
OVATION PRODUCTS CORPORATION
WARRANT NO. [o] [o] SHARES
FOR VALUE RECEIVED, Ovation Products Corporation (the "Company"), a
Delaware corporation, hereby certifies that [Name of Holder] with [PRINCIPAL
OFFICES/RESIDENCE] at [o], or his assigns, is entitled to purchase from the
Company, at any time or from time to time, a total of [o] ([o]) fully paid and
nonassessable shares of the Common Stock, $1.00 par value per share, of the
Company for an aggregate purchase price of $[o] (computed on the basis of $6.00
per share). Hereinafter, (i) said Common Stock, together with any other equity
securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock"; (ii) the shares of
the Common Stock purchasable hereunder are referred to as the "Warrant Shares";
(iii) the aggregate purchase price payable hereunder for the Warrant Shares is
referred to as the "Aggregate Warrant Price"; (iv) the price payable hereunder
for each of the Warrant Shares is referred to as the "Per Share Warrant Price";
(v) this Warrant, and all warrants hereafter issued in exchange or substitution
for this Warrant are referred to as the "Warrant"; and (vi) the holder of this
Warrant is referred to as the "Holder". The Per Share Warrant Price is subject
to adjustment as hereinafter provided. In the event of any such adjustment, the
number of Warrant Shares shall be adjusted by dividing the Aggregate Warrant
Price by the Per Share Warrant Price in effect immediately after such
adjustment.
1. EXERCISE OF WARRANT. This Warrant may be exercised, in whole at any
time or in part from time to time, commencing on the date hereof, and prior to
5:00 P.M., Eastern Standard Time, on June [o] 2010, the Holder (with the
subscription form at the end hereof duly executed) at the address set forth in
Subsection 9(a) hereof, together with proper payment of the Aggregate Warrant
Price, or the proportionate part thereof if this Warrant is exercised in part.
Payment for Warrant Shares shall be made, at the election of the Holder, (i) by
set-offs against amounts due to the Holder under any promissory notes issued by
the Company (in which event such note(s) shall be delivered to the Company at
the time of exercise), or (ii) certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
1
exercised for a minimum of 25 shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the number of Warrant Shares in
respect of which this Warrant has not been exercised and setting forth the
proportionate part of the Aggregate Warrant Price applicable to such Warrant
Shares. Upon such surrender of this Warrant, the Company will (a) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of the Common Stock to which the Holder shall be entitled and, if
this Warrant is exercised in whole, in lieu of any fractional share of the
Common Stock to which the Holder shall be entitled, cash equal to the fair value
of such fractional share (determined in such reasonable manner as the Board of
Directors of the Company shall determine); (b) deliver the proportionate part
thereof if this Warrant is exercised in part, pursuant to the provisions of the
Warrant and (c) deliver a replacement promissory note representing the
unsatisfied portion of any promissory note delivered in payment for the Warrant
Shares.
2. RESERVATION WARRANT SHARES. The Company agrees that, prior to the
expiration of this Warrant, the Company will at all times have authorized and in
reserve, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock as from time to time
shall be receivable upon the exercise of this Warrant.
3. ADJUSTMENT OF PURCHASE PRICE.
(a) Stock Splits, Stock Dividends and Reverse Splits. In case the
Company shall at any time divide the outstanding shares of its
Common Stock into a greater number of shares (whether pursuant
to a stock split, stock dividend or otherwise), the Purchase
Price in effect immediately prior to such division shall be
proportionately reduced and the number of Warrant Shares shall
be proportionately increased, and conversely, in the case the
outstanding shares of the Company's Common Stock shall be
combined into a smaller number of shares, the Purchase Price
in effect immediately prior to such combination shall be
proportionately increased and the number of Warrant Shares
proportionately reduced.
(b) Reorganization, Consolidation, Merger or Sale of Assets. If
any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the
Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall
be effected in such a way that holders of shares of the
Company's Common Stock shall be entitled to receive stock,
securities or assets, with respect to or in exchange for such
shares, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the holder of
this Warrant shall have the right to purchase and receive upon
the basis and upon the terms and conditions specified in this
Warrant and in addition to or in lieu of, as the case may be,
the shares of Common Stock immediately theretofore purchasable
and receivable upon exercise of the rights represented hereby,
such shares of stock, other securities or assets as would have
2
been issued or delivered to the holder of this Warrant if such
holder had exercised this Warrant and had received such shares
of Common Stock prior to such reorganization,
reclassification, consolidation, merger or sale. The Company
shall 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 executed and mailed
to the registered holder of the Warrant 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 holders may be entitled to purchase.
(c) Other Actions. The issuance of additional shares of additional
capital shares of the Company to persons other than the
Warrant holder in a manner not discussed in this section 3
shall not result in any adjustment in the Purchase Price or
increase in the number of shares subject to this Warrant.
4. FULLY PAID STOCK; TAXES. The Company agrees that the shares of stock
represented by each and every certificate for Warrant Shares delivered on the
exercise of this Warrant shall, at the time of such delivery, be validly issued
and outstanding, fully paid and non-assessable, and not subject to preemptive
rights, and the Company will take all such actions as may be necessary to assure
that the par value or stated value, if any, per share of the Common Stock is at
all times equal to or less than the then Per Share Warrant Price. The Company
further covenants and agrees that it will pay, when due and payable, any and all
Federal and state stamp, original issue or similar (but not income) taxes that
may be payable in respect of the issue of any Warrant Share or certificate
therefor.
5. Transfer.
(a) Securities Laws. Neither this Warrant nor the Warrant Shares
issuable upon the exercise hereof have been registered under
the Securities Act of 1933, as amended (the "Securities Act")
or under any state securities laws and unless so registered
may not be transferred, sold, pledged, hypothecated or
otherwise disposed of unless an exemption from such
registration is available. In the event Holder desires to
transfer this Warrant or any of the Warrant Shares issued, the
Holder must give the Company prior written notice of such
proposed transfer including the name and address of the
proposed transferee. Such transfer may be made only either (i)
upon publication by the Securities and Exchange Commission
(the "Commission") of a ruling, interpretation, opinion or "no
action letter" based upon facts presented to said Commission,
or (ii) upon receipt by the Company of an opinion of counsel
to the Warrant holder satisfactory in form and content to the
Company and its counsel in either case to the effect that the
proposed transfer will not violate the provisions of the
Securities Act, the Securities Exchange Act of 1934, as
3
amended, or the rules and regulations promulgated under either
such act, or in the case of clause (ii) above, to the effect
that the Warrant or Warrant Shares to be sold or transferred
has been registered under the Securities Act, as amended, and
that there is in effect a current prospectus meeting the
requirements of Subsection 10(a) of the Securities Act, which
is being or will be delivered to the purchaser or transferee
at or prior to the time of delivery of the certificates
evidencing the Warrant or Warrant Stock to be sold or
transferred.
(b) Conditions to Transfer. Prior to any such proposed transfer,
and as a condition thereto, if such transfer is not made
pursuant to an effective registration statement under the
Securities Act, the Holder will, if requested by the Company,
deliver to the Company (i) a representation of investment
intent signed by the proposed transferee, (ii) an agreement by
such transferee to placing of the restrictive legend
substantially in the form set forth herein on the certificate
or certificates representing the securities acquired by such
transferee, (iii) an agreement by such transferee that the
Company may place a "stop transfer order" with its transfer
agent or registrar, (iv) an agreement by the transferee to
indemnify the Company to the same extent as set forth in the
next succeeding paragraph, and (v) other documentation,
certificates or instruments reasonably requested by the
Company or its counsel.
(c) Indemnity. The Holder acknowledges that the Holder understands
the meaning and legal consequences of this Section 5, and the
Holder hereby agrees to indemnify and hold harmless the
Company, its representatives and each officer and director
thereof from and against any and all loss, damage or liability
(including all attorneys fees, and other fees, costs and
expenses incurred in enforcing this indemnity provision) due
to or arising out of (a) the inaccuracy of any representation
or the breach of any warranty of the Holder contained in, or
any other breach of, this Warrant or in any other instruments,
documents or certificates entered into in connection with or
pursuant to the terms of this Warrant, (b) any transfer of the
Warrant or any of the Warrant Shares in violation of the
Securities Act, the Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated under either
of such acts, (c) any transfer of the Warrant or any of the
Warrant Shares not in accordance with this Warrant or (d) any
untrue statement or omission to state any material fact in
connection with the representations of investment intent or
with respect to the facts and representations or in any other
instruments, documents or certificates entered into in
connection with or pursuant to the terms of the Warrant
supplied by the Holder to counsel to the Company upon which
its opinion as to a proposed transfer shall have been based.
(d) Transfer. Except as restricted hereby, this Warrant and the
Warrant Shares issued may be transferred by the Holder in
whole or in part at any time or from time to time. Upon
surrender of this Warrant to the Company or at the office of
its stock transfer agent, if any, with assignment
documentation duly executed and funds sufficient to pay any
transfer tax, and upon compliance with the foregoing
4
provisions, 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. Any assignment, transfer, pledge, hypothecation
or other disposition of this Warrant attempted contrary to the
provisions of this Warrant or subsequent agreement to which
this Warrant is subject, or any levy of execution, attachment
or other process attempted upon the Warrant, shall be null and
void and without effect.
(e) Legend and Stop Transfer Orders. Unless the Warrant Shares
have been registered under the Securities Act, upon exercise
of any part of the Warrant and the issuance of any Warrant
Shares, the Company shall, or the Company shall instruct its
transfer agent, to enter stop transfer orders with respect to
such shares, and all certificates representing Warrant Shares
shall bear on the face thereof substantially the following
legend, insofar as is consistent with Delaware law:
"The shares of Common Stock represented by this
certificate have not been registered under the
Securities Act of 1933 (the "Act"), as amended, and may
not be sold, offered for sale, assigned, transferred or
otherwise disposed of unless registered pursuant to the
provisions of the Act or an opinion of counsel to the
holder satisfactory to the Company and its counsel is
obtained stating that such disposition is in compliance
with an available exemption from such required
registration."
6. Registration Rights.
(a) Incidental Registration. If the Company at any time proposes
for any reason to register any of its securities under the
Securities Act (other than pursuant to a registration
statement on Forms S-4, S-8, S-14 or S-15 or similar or
successor form), it shall each such time promptly give written
notice to all holders of outstanding Registrable Shares (as
defined below) of its intention so to do, and, upon the
written request, given within 20 days after receipt of any
such notice, of the holder of any such Registrable Shares to
register any Registrable Shares (which request shall specify
the Registrable Shares intended to be sold or disposed of by
such holders and shall state the intended method of
disposition of such Registrable Shares by the prospective
seller), the Company shall use its commercially reasonable
efforts to cause all such Registrable Shares, to be registered
under the Securities Act promptly upon receipt of the written
request of such holders for such registration, all to the
extent requisite to permit the sale or other disposition (in
accordance with the intended methods thereof, as aforesaid) by
the prospective seller or sellers of the Registrable Shares so
registered. In the event that the proposed registration by the
Company is, in whole or in part, an underwritten public
offering of securities of the Company, any request pursuant to
5
this Section 6 to register Registrable Shares may specify that
such shares are to be included in the underwriting (i) on the
same terms and conditions as the shares of Common Stock, if
any, otherwise being sold through underwriters under such
registration, or (ii) on terms and conditions comparable to
those normally applicable to offerings of common stock in
reasonably similar circumstances in the event that no shares
of Common Stock other than Registrable Shares are being sold
through underwriters under such registration; provided,
however, that (A) if the managing underwriter determines and
advises in writing that the inclusion of all Registrable
Shares proposed to be included in the underwritten public
offering and other issued and outstanding shares of Common
Stock proposed to be included therein by persons other than
holders of Registrable Shares (the "Other Shares") would
interfere with the successful marketing (including pricing) of
such securities, then the number of Registrable Shares and
Other Shares to be included in such underwritten public
offering shall be reduced first, pro rata among the holders of
Other Shares, and second, if necessary, pro rata among the
holders of Registrable Shares based upon the number of
Registrable Shares and shares of Common Stock requested by the
holders thereof to be registered in such underwritten public
offering and (B) in each case those shares of Common Stock
which are excluded from the underwritten public offering shall
be withheld from the market by the holders thereof for a
period, not to exceed 180 days, which the managing underwriter
reasonably determines as necessary in order to effect the
underwritten public offering.
(b) Preparation and Filing. If and whenever the Company is under
an obligation pursuant to the provisions of this Section 6 to
use its commercially reasonable efforts to effect the
registration of any Registrable Shares, the Company shall, as
expeditiously as practicable:
(i) prepare and file with the Commission a registration
statement with respect to such securities and use its
commercially reasonable efforts to cause such
registration statement to become and remain effective in
accordance with Section 6(b)(ii);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statements and the
prospectus used in connection therewith as may be
necessary to keep such registration statement effective
for at least six months (or such shorter period during
which all such Registrable Shares registered on such
registration statement have been sold) and to comply
with the provisions of the Securities Act with respect
to the sale or other disposition of all Registrable
Shares covered by such registration statement;
6
(iii) furnish to each holder of Registrable Shares such number
of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other
documents as such seller may reasonably request in order
to facilitate the public sale or other disposition of
such Registrable Shares;
(iv) use its commercially reasonable efforts to register or
qualify the Registrable Shares covered by such
registration statement under the securities or "blue
sky" laws of such jurisdictions as each such seller
shall reasonably request (provided, however, that the
Company shall not be required to consent to general
service of process for all purposes in any jurisdiction
where it is not then qualified) and do any and all other
acts or things which may be reasonably necessary or
advisable to enable such seller to consummate the public
sale or other disposition in such jurisdiction of such
securities;
(v) notify each seller of Registrable Shares covered by such
registration statement, at any time when a prospectus
relating thereto covered by such registration statement
is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 6(c),
of the happening of any event as a result of which the
prospectus included in such registration statement, as
then in effect, includes an untrue statement of a
material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances
then existing and at the request of such seller, prepare
and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not
include an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading in the light of the circumstances then
existing; and
(vi) furnish, at the request of any holder or holders
requesting registration of Registrable Shares pursuant
to this Section 6, on the date that such Registrable
Shares are delivered to the underwriters for sale in
connection with a registration described in this Section
6, if such securities are being sold through
underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration
statement with respect to such securities becomes
effective, (A) an opinion, dated such date, of the
counsel representing the Company for the purposes of
such registration, in form and substance as is
customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any,
and to the holder or holders making such request; and
(B) a letter dated such date, from the independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the
underwriters, if any, and to the holder or holders
making such request.
7
(c) Market Stand-Off Agreement. Each holder of Registrable Shares
agrees, if requested by the Company and an underwriter of
Common Stock or other securities of the Company, not to sell,
assign, donate, pledge, encumber, hypothecate, grant an option
to, or otherwise transfer or dispose of, whether in privately
negotiated or open market transactions, any Common Stock or
other securities of the Company held by it during the 180-day
period following the effective date of a registration
statement filed pursuant to the Public Offering (as defined
below), provided that:
(i) Such agreement shall apply only to the initial Public
Offering; and
(ii) All other holders of Registrable Shares, any other
security holders whose securities are included in such
registration statement, and all officers, directors and
key employees of the Company shall also enter into
similar agreements.
Such agreement shall be in writing in form and substance
satisfactory to the Company and such underwriter. The Company
may impose stop-transfer instructions with respect to the
shares subject to the foregoing restrictions until the end of
said 180-day period.
(d) Expenses. In the case of a registration hereof for the account
of the Company in which the Company is receiving proceeds from
the sale of its equity securities, the Company shall bear all
costs and expenses of each such registration, including, but
not limited to, printing, legal and accounting fees and
expenses, Securities and Exchange Commission and NASD filing
fees and "Blue Sky" fees and expenses; provided, however, that
the Company shall have no obligation to pay or otherwise bear
any portion of the underwriters' commissions or discounts
attributable to the Registrable Shares being offered and sold
by the holders of Registrable Shares, or the fees and expenses
of any counsel for the selling holders of Registrable Shares
in connection with the registration of the Registrable Shares.
(e) Additional Covenants Concerning Sale of Shares.
(i) If permitted by applicable law and regulation, the
Company, at the request of the holder of Registrable
Shares, shall file such amendments and/or supplements to
such registration statement necessary to take such other
steps as may be required to maintain such registration
8
statement in effect, and to keep the information therein
current, so long as any of the Registrable Shares
included therein remain unsold. In connection with any
registration statement referred to in this Section 6,
the Company shall furnish to the holder of Registrable
Shares (or to any broker or other person at its request)
a reasonable number of copies of such registration
statement, each amendment and supplement thereto and
each document included therein, and such number of
copies of the then current prospectus included therein
as either the holder of Registrable Shares or its
brokers may from time to time reasonably request.
(ii) In connection with any registration statement referred
to in this Section 6 of this Agreement, the holder of
Registrable Shares will furnish to the Company such
information as the Company may reasonably require from
such holder for inclusion in the registration statement
(and the prospectus included therein).
(iii) The Company's obligations under this Section 6 shall be
conditioned upon each shareholder (including the Holder
of Registrable Shares) whose Shares are being registered
and any underwriter participating in such public
offering executing and delivering to the Company an
appropriate agreement, in form satisfactory to counsel
for the Company, that he will comply with all
anti-stabilization, manipulation, and similar provisions
of Section 10 of the Securities Exchange Act of 1934, as
amended, and any rules promulgated thereunder and will
furnish to the Company information about sales made in
such public offering.
(f) Blue Sky Provisions. The Company, at its expense, shall cause
all of the Registrable Shares included in a registration
statement referred to in this Section 6 to be qualified under
the laws of such reasonable number of jurisdictions as the
holder of Registrable Shares (provided that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction), or the managing
underwriter named therein, may designate, and the Company will
continue such qualification in effect so long as may be
necessary to comply with all applicable laws regulating sales
of securities.
(g) Advising the Holder of Registrable Shares. In connection with
any registration statement referred to in this Section 6, the
Company will promptly advise each holder of Registrable Shares
and confirm such advice in writing (i) when the registration
statement has become effective, (ii) when any post-effective
amendment to the registration statement becomes effective, and
(iii) of any request by the SEC for any amendment or
supplement to the registration statement or prospectus or for
additional information.
9
If at any time the SEC should institute or threaten to
institute any proceeding for the purposes of issuing, or
should issue, a stop order suspending the effectiveness of the
registration statement, the Company will promptly notify the
holder of Registrable Shares, and will use its commercially
reasonable efforts to prevent the issuance of any such stop
order or to obtain the withdrawal thereof as soon as possible;
and the Company will advise such holder of Registrable Shares
promptly of any order or communication of any public board or
body addressed to the Company suspending or threatening to
suspend the qualification of any Registrable Shares for sale
in any jurisdiction.
(h) Indemnification.
(i) With respect to the registration rights described in
this Section 6, the Company hereby agrees to indemnify,
hold harmless and defend each holder of Registrable
Shares and each person, if any, who is deemed a
controlling person of such holder of Registrable Shares
within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities
(including legal and other expenses incurred in
investigating and defending against the same), to which
they, or any of them, may become subject under the
Securities Act or other statute or common law, arising
out of or based upon:
(A) any alleged untrue statement of a material fact
contained in any registration statement,
preliminary prospectus or prospectus included
therein, any amendment thereof of supplement
thereto; or
(B) the alleged omission to state therein a material
fact required to be stated therein or necessary to
make the statements contained therein not
misleading; provided, however, that the indemnity
contained in this Subsection (g) shall not apply
to any such alleged untrue statement or omission
made in reliance upon and in conformity with
information furnished in writing to the Company by
or on behalf of the Holder of Registrable Shares.
The holder of Registrable Shares agrees that as
soon as practicable, but in any event within
forty-five (45) days, after the receipt of notice
of any claim or action against it in respect of
which indemnity may be sought from the Company
hereunder, to notify the Company thereof in
writing, and the Company shall assume the defense
of such claim or action (and the cost thereof) by
counsel of its own choosing, who shall be
reasonably satisfactory to the holder of
Registrable Shares.
10
(ii) Each selling holder of Registrable Shares shall agree to
indemnify, hold harmless and defend the Company, its
directors and officers, and each person, if any, who is
deemed a controlling person of the Company with the
meaning of the Securities Act, against any and all
losses, claims, damages or liabilities, including legal
or other expenses incurred in investigating and
defending against the same, to which they or any of them
may become subject under the Securities Act or other
statute or common law, arising out of or based upon:
(A) any alleged untrue statement of a material fact
contained in any such registration statement, or
prospectus or preliminary prospectus included
therein, or any amendment thereof or supplement
thereto, but only to the extent, that such untrue
statement or alleged untrue statement was made in
the registration statement or any amendment or
supplement thereto, in reliance upon and in
conformity with written information furnished to
the Company by or on behalf of any holder of
Registrable Shares expressly for use therein, or
(B) the alleged omission to state therein a material
fact required to be stated therein or necessary to
make the statements contained therein not
misleading, but only to the extent, omission or
alleged omission was made in the registration
statement or any amendment or supplement thereto,
in reliance upon and in conformity with written
information furnished to the Company by or on
behalf of any holder of Registrable Shares
expressly for use therein. The Company, and any
other person or entity in respect of which
indemnity may be sought from the Holder of
Registrable Shares hereunder, agree, that as soon
as practicable, but in any event within forty-five
(45) days, after receipt of notice of any claim or
action against the Company or such other person or
entity, to notify the holder of Registrable Shares
thereof in writing, and the holder of Registrable
Shares shall assume the defense of any such claim
or action (and the cost thereof) by counsel of
their own choosing, who shall be reasonably
satisfactory to the Company.
(i) Definitions. For purposes of this Section 6, the following
terms shall have the following meanings:
(i) "Public Offering" means the consummation of the first
fully underwritten, firm commitment public offering
pursuant to an effective registration statement under
the Securities Act, other than on Forms S-4 or S-8, or
their then equivalents, covering the offer and sale by
the Company of its Common Stock, resulting in aggregate
net proceeds to the Company of at least $2,000,000
(excluding underwriting discounts and commissions).
11
(ii) "Registrable Shares" means (i) the shares of Common
Stock issued or issuable upon conversion of this
Warrant, and (iii) any other shares of Common Stock of
the Company issued in respect of such shares (because of
stock splits, stock dividends or other distributions,
reclassifications, recapitalizations or similar events).
7. LOSS, ETC. OF WARRANT. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent to
or receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the exercise hereof.
9. INFORMATION TO HOLDER. The Company agrees that it shall deliver to the
Holder promptly after their becoming available copies of all financial
statements, reports and proxy statements which the Company shall have sent to
its stockholders generally.
10. NOTICES. No notice or other communication under this Warrant shall be
effective unless the same is in writing and is mailed by first-class mail,
postage prepaid, addressed to: the Company at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address as the Company has designated in writing
to the Holder at [ o ] or such other address as the Holder has designated in
writing to the Company.
11. HEADINGS. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
12. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of thereof.
IN WITNESS WHEREOF, OVATION PRODUCTS CORPORATION has caused this
Warrant to be signed by its President and attested by its Assistant Secretary as
of the 1st day of June, 2005.
ATTEST: OVATION PRODUCTS CORPORATION
By:
------------------------------------ ------------------------------------
Chairman ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Pres. & Treasurer
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ASSIGNMENT
FOR VALUE RECEIVED ___________________ hereby sells, assigns and transfers
unto _______ the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
said Warrant on the books of Ovation Products Corporation.
Dated: _________________________ Signature: _____________________________
Address: _______________________________
________________________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ____________________ hereby assigns and transfers unto
____________________ the right to purchase ____________ shares of the Common
Stock of ____________ covered by the foregoing Warrant, and a proportionate part
of said Warrant and the rights evidenced thereby, and does irrevocably
constitute and appoint ____________________ , attorney, to transfer that part of
said Warrant on the books of Ovation Products Corporation.
Dated: _________________________ Signature: _____________________________
Address: _______________________________
________________________________________
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SUBSCRIPTION FORM
(To be executed upon exercise of Warrant pursuant to Section 1)
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
____________________ shares of Common Stock, as provided for in Section l, and
tenders herewith payment of the purchase price in full in the form of cash or a
certified or official bank check in the amount of $____________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay any cash for any fractional share to:
Name: __________________________________
(Please Print Name, Address and Social
Security No.)
Address: _______________________________
________________________________________
Social Security Number _________________
Signature: _____________________________
NOTE: The above signature should
correspond exactly with the name on the
first page of this Warrant or with the
name of the assignee appearing in the
assignment form below.
Date: __________________________________
And if said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant is to be issued in the name of said Warrant Holder
for the balance remaining of the shares purchasable thereunder.
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