EXHIBIT 1
THIS WARRANT AND THE WARRANT SHARES (AS DEFINED HEREIN) WHICH MAY BE PURCHASED
UPON THE EXERCISE OF THIS WARRANT, HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE OR COMPARABLE SECURITIES LAW OF A
U.S. OR NON-U.S. JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, OR IN ANY OTHER MANNER TRANSFERRED OR DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH SALE, OFFER, TRANSFER OR DISPOSITION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY
APPLICABLE STATE OR COMPARABLE SECURITIES LAW OF A U.S. OR NON-U.S.
JURISDICTION.
February 2, 2006
(the "EFFECTIVE DATE")
To: DEP TECHNOLOGY HOLDINGS LTD. (the "HOLDER")
WARRANT
to purchase up to the aggregate number of
shares of common stock as detailed below of
M-WISE, INC. (the "COMPANY")
at a per share price as detailed below.
1. WARRANT SHARES, EXERCISE PRICE AND OPTION PERIOD.
1.1 WARRANT SHARES. This is to certify that the Holder specified above and
any permitted transferee, is entitled to purchase from the Company, subject to
the provisions of this Warrant, 5,263,158 shares of common stock, par value
$0.0017 per share, of the Company (the "WARRANT SHARES") at an exercise price
(the "EXERCISE PRICE") of $0.19.
1.2 OPTION PERIOD. The Warrant may be exercised any time before the third
anniversary of the Effective Date (the "OPTION PERIOD").
2. EXERCISE OF WARRANT
2.1. PARTIAL EXERCISE. This Warrant may be exercised in whole or in part.
Should this Warrant be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant evidencing
the rights of the Holder to purchase the balance of the shares purchasable
hereunder.
2.2. EXERCISE. This Warrant shall be exercised by presentation and
surrender hereof to the Company at the principal office of the Company,
accompanied by: (i) a written notice of exercise in a form appended hereto as
Exhibit A (the "EXERCISE NOTICE"); and (ii) payment to the Company, for the
account of the Company, of the Exercise Price for the number of Warrant Shares
specified in such notice.
The Exercise Price for the number of Warrant Shares specified in the Exercise
Notice shall be payable in immediately available funds.
2.3. ISSUANCE OF THE WARRANT SHARES. Within 7 business days following
presentation and surrender of the Exercise Notice accompanied by the payment of
the applicable Exercise Price pursuant to section 2.2, the Company shall issue
promptly to the Holder the shares to which the Holder is entitled. Upon receipt
by the Company of such notice of exercise and the Exercise Price, the Holder
shall be deemed to be the holder of the shares issuable upon such exercise,
notwithstanding that the share transfer books of the Company may then be closed
and that certificates representing such shares shall not then be actually
delivered to the Holder. The Company shall pay all of the applicable taxes and
other charges that are payable by the Company in connection with the issuance of
the Warrant Shares and the preparation and delivery of share certificates
pursuant to this Section 2 in the name of the Holder, but shall not pay any
taxes payable by the Holder by virtue of the holding, issuance, exercise or sale
of this Warrant or the Warrant Shares by the Holder.
3. EXCHANGE OR LOSS OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date.
4. ADJUSTMENT
The Warrant Shares shall be adjusted to prevent dilution in such fashion that
the Holder of Warrant Shares shall retain those rights and privileges which such
Holder would have enjoyed had the Warrant been exercised immediately prior to
any stock dividend, stock split, merger, recapitalization, reorganization, or
other corporate change. No adjustment shall be made by reason of the exercise or
partial exercise of the Warrant.
5. TRANSFER
Neither this Warrant nor any rights hereunder may be assigned, conveyed or
transferred, in whole or in part, by the Holder, without the Company's prior
written consent. The rights and obligations of the Company and the Holder under
this Warrant shall be binding upon and benefit their respective permitted
successors, assigns, heirs, administrators and transferees.
6. RIGHTS OF THE HOLDER
6.1. EQUITABLE RELIEF. Without limiting the foregoing or any remedies
available to the Holder, the Holder will be entitled to specific performance of
the obligations hereunder, and injunctive relief against actual or threatened
violations of the obligations of any person or entity subject to this Warrant.
6.2. NO STOCKHOLDER RIGHTS. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, including any voting
rights, prior to exercise of the Warrants resulting in the purchase of Warrant
Shares.
7. FRACTIONAL SHARES
No fractional shares shall be issued upon exercise of the Warrant and the number
of shares of common stock to be issued shall be rounded up or down to the
nearest whole share.
8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of Israel, without regard to conflicts of laws principles. Any dispute
relating to or arising from this Agreement shall be exclusively submitted to the
competent courts in the district of Tel Aviv-Jaffa.
[m-WISE - DEP WARRANT]
m-WISE, INC.
By: (signed)
Printed Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
Accepted and Agreed:
DEP TECHNOLOGY HOLDINGS LTD.
By: (signed)
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: (signed)
Printed Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
EXHIBIT A
EXERCISE NOTICE
To: m-Wise, Inc. Date:
The undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby elects to purchase _________ of the Warrant Shares pursuant to Section
2.2 of the attached Warrant, and herewith makes payment of $_________,
representing the full Exercise Price for such shares as provided for in such
Warrant.
DEP Technology Holdings Ltd.
By: _______________________________
Title:______________________________