Exhibit 10.21
THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED
PURSUANT TO THE EXERCISE OF THIS WARRANT (THE "SHARES") WILL BE, ACQUIRED SOLELY
FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR THE SHARES (TOGETHER, THE
"SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.
Magnitude Information Systems, Inc.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
February 18, 2007
THIS CERTIFIES THAT, for value received, Azzurri Group, LLC (the
"Holder"), a Florida limited liability company with an address at ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ is entitled to subscribe for and purchase from
Magnitude Information Systems, Inc. (the "Company"), a Delaware corporation with
an address at ▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, six million two hundred fifty
thousand (6,250,000) shares of the fully paid and nonassessable Common Stock,
$0.0001 par value ("Shares"), of the Company at the price of $.05 per share (the
"Exercise Price") or on a net issuance or "cashless" basis as provided herein,
subject to the provisions and upon the terms and conditions hereinafter set
forth.
This Warrant is subject to the following terms and conditions:
1. TERM.
(A) TERM. This Warrant is exercisable by the Holder, in whole or in part,
any time from and after February 18, 2007 and prior to February 18, 2010.
2. METHOD OF EXERCISE; PAYMENT.
(A) CASH EXERCISE. The purchase rights represented by this Warrant may be
exercised by the Holder, in whole or in part, from time to time at the principal
office of the Company, by delivering a completed and duly executed Notice of
Exercise (attached hereto as Exhibit "A") and by the payment to the Company of
an amount equal to the Exercise Price multiplied by the number of the Shares
being purchased, which amount may be paid, at the election of the Holder, by
wire transfer or check payable to the order of the Company. The person or
persons in whose name(s) any certificate(s) representing Shares shall be
issuable upon exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the Shares represented thereby (and such Shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised, with the Holder having all rights as
a record holder including, but not limited to, all voting rights.
(B) CASHLESS EXERCISE. Upon cashless exercise of this Warrant, the Company
shall deliver to the Holder (without payment by the Holder of any exercise
price) that number of Shares equal to the quotient obtained by dividing (x), the
intrinsic value of the Warrant, or the portion thereof surrendered for exercise,
at the time this Warrant is exercised (determined by subtracting (i) the
aggregate exercise price of the Shares for which such Warrant or portion thereof
would be exercisable at the time of the cashless exercise, from (ii) the
aggregate Fair Market Value, as set forth in Paragraph "(D)" of this Article "2"
of this Warrant, of the Shares for which such Warrant or portion thereof would
be exercisable at the time of the cashless exercise), by (y), the Fair Market
Value of one Share at the time of the cashless exercise.
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(C) CASHLESS EXERCISE HOLDER PROCEDURE. The Warrant may be exercised by
the Holder in a cashless exercise, in whole or in part, at any time or from time
to time, prior to its expiration, on any business day, by delivering a signed
Notice of Exercise to the Company, specifying the total number of Shares the
Holder shall purchase pursuant to such cashless exercise and enclosing the
Warrant, marked "CANCELLED".
(D) FAIR MARKET VALUE. "Fair Market Value" of a Share as of a particular
time (the "Determination Time") shall mean:
(i) If the Company's Common Stock is traded on a national securities exchange or
is quoted on the National Association of Securities Dealers, Inc., Automated
Quotation ("NASDAQ") National Market System, or the NASDAQ Small Cap Market, the
Fair Market Value shall be the average of the closing prices reported for the
ten (10) completed trading days immediately preceding the Determination Time.
(ii) If the Company's Common Stock is not traded on an exchange or on the NASDAQ
National Market System, or the NASDAQ Small Cap Market, but is traded in the
over-the-counter market, the Fair Market Value shall be the average of the
closing prices reported for the ten (10) completed trading days immediately
preceding the Determination Time.
(E) STOCK CERTIFICATES. In the event of any exercise of the rights
represented by this Warrant, certificates for the Shares so purchased shall be
delivered to the Holder within ten (10) business days after said exercise and,
unless this Warrant has been fully exercised or has expired, a new Warrant
representing the rights to acquire Shares with respect to which this Warrant
shall not have been exercised shall also be issued to the Holder within such
time. If the Company fails to deliver the Shares so purchased, and if
applicable, a new Warrant, to the Holder pursuant to this Paragraph "(E)" of
this Article "2", the Company shall pay the Holder five hundred ($500) dollars
per day for each late day of delivery. The Company acknowledges that it would be
extremely difficult or impracticable to determine the Holder's actual damages
and costs resulting from a delay in providing such certificates and/or new
Warrant and the inclusion herein of any such late charges or fees are the agreed
upon liquidated damages representing a reasonable estimate of those damages and
costs and do not constitute a penalty.
3. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Shares issuable upon the
exercise of the rights represented by this Warrant will, upon issuance and
receipt of the Exercise Price therefor, be fully paid and nonassessable, and
free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges with respect to the issuance thereof. The Company shall
increase its authorized shares within six (6) months after the date of this
Warrant such that the Company shall at all times thereafter have authorized and
reserved for issuance sufficient Shares to provide for the exercise of the
rights represented by this Warrant.
4. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. Subject to the provisions
of Article "2" hereof, the number and kind of Shares purchasable upon the
exercise of this Warrant and the Exercise Price therefor shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(A) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of any
reclassification of the Common Stock (other than a change in par value, or as a
result of a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger with another corporation in which the Company is a
continuing corporation and in which the Company's stockholders immediately
preceding such consolidation or merger own at least 50% of the voting securities
of the Company following such consolidation or merger and which does not result
in any reclassification of the Shares issuable upon exercise of this Warrant),
or in case of any sale of all or substantially all of the assets of the Company,
the Company, or such successor or purchasing corporation as the case may be,
shall execute a new Warrant, providing that the holder of this Warrant shall
have the right to exercise such new Warrant, and procure upon such exercise and
payment of the same aggregate Exercise Price, in lieu of the Shares theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of stock,
other securities, money and property receivable upon such reclassification,
change, consolidation, sale of all or substantially all of the Company's assets
or merger by a holder of an equivalent number of Shares. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Paragraph "(A)" of this Article "4" of
this Warrant. The provisions of this Paragraph "(A)" of this Article "4" of this
Warrant shall similarly apply to successive reclassifications, consolidations,
mergers, sales, leases or conveyances.
2
(B) STOCK SPLITS, DIVIDENDS AND COMBINATIONS. In the event that the
Company shall at any time subdivide the outstanding Shares, issue warrants or
options to purchase Shares at less than the then current market value, or issue
a stock dividend on its outstanding Shares, the number of Shares issuable upon
exercise of this Warrant immediately prior to such subdivision or to the
issuance of such stock dividend shall be proportionately increased, and the
Exercise Price shall be proportionately decreased, and in the event that the
Company shall at any time combine the outstanding Shares, the number of Shares
issuable upon exercise of this Warrant immediately prior to such combination
shall be proportionately decreased, and the Exercise Price shall be
proportionately increased, effective at the close of business on the date of
such subdivision, issuance of warrants or options, stock dividend or
combination, as the case may be.
(C) All calculations under this Article "4" of this Warrant shall be made
to the nearest cent or to the nearest share, as the case may be.
(D) In any case in which this Article "4" of this Warrant shall require
that an adjustment in the number of Shares be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the Holder, if the Holder exercised this Warrant after
such record date, the Shares, if any, issuable upon such exercise over and above
the number of Shares issuable upon such exercise on the basis of the number of
Shares in effect prior to such adjustment; provided, however, that the Company
shall deliver to the Holder a due ▇▇▇▇ or other appropriate instrument
evidencing the Holder's right to receive such additional Shares upon the
occurrence of the event requiring such adjustment.
(E) Whenever there shall be an adjustment as provided in this Article "4"
of this Warrant, the Company shall within fifteen (15) days thereafter cause
written notice thereof to be sent to the Holder pursuant to Paragraph "(C)" of
Article "12" of this Warrant, which notice shall be accompanied by an officer's
certificate setting forth the number of Shares issuable and the Exercise Price
thereof after such adjustment and setting forth a brief statement of the facts
requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
(F) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share of Common Stock would be issuable on the
exercise of this Warrant (or specified portions thereof), the Company shall pay
in lieu of such fraction an amount in cash equal to the same fraction of the
current market price on the date of exercise of this Warrant.
(G) No adjustment in the Exercise Price per Warrant shall be required if
such adjustment is less than $.01; provided, however, that any adjustments which
by reason of this Paragraph "(G)" of this Article "4" of this Warrant are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.
5. REGISTRATION.
(A) Within ninety (90) days after the date of this Warrant, the Company
shall file for the registration of all Shares which may be received upon the
exercise of this Warrant ("Warrant Shares"). If Company has not filed for the
registration of the Warrant Shares within ninety (90) days after the date of
this Warrant, Company shall issue an additional forty five thousand (45,000)
Shares to the Holder for each subsequent business day until such filing is made.
Once such filing is made, Company shall use good faith efforts to make the
registration effective. If the registration is not effective within ninety (90)
days after filing, the Company shall issue an additional forty five thousand
(45,000) Shares to the Holder for each subsequent business day until the
registration becomes effective.
3
Once the registration of the Warrant Shares is effective, the Company shall keep
the registration effective until the later of (i) such time as the Holder has
sold all Warrant Shares, or (ii) the Warrant Shares are eligible to be
transferred without restriction pursuant to the provisions of Rule 144(k), which
was promulgated by the Securities and Exchange Commission pursuant to Section
4(1) of the Securities Act of 1933, as amended. The Company agrees to provide an
opinion of counsel with respect to any sales of Warrant Shares by the Holder if
such sale is permissible under Rule 144(k).
(B) All expenses in connection with preparing and filing any registration
statement under Paragraph "(A)" of this Article "5" of this Warrant shall be
borne in full by the Company; provided, however, that the Holder shall pay any
and all underwriting commissions and expenses and the fees and expenses of any
legal counsel selected by the Holder to represent him with respect to the sale
of the Warrant Shares.
6. CONDITIONS OF EXERCISE OR TRANSFER OF WARRANT.
(A) Unless exercised pursuant to an effective registration statement under
the Act which includes the Shares so exercised, it shall be a condition to any
exercise of this Warrant that the Company shall have received, at the time of
such exercise, a representation in writing from the recipient that the Shares
being issued upon exercise, are being acquired for investment and not with a
view to any sale or distribution thereof.
(B) Until this Warrant and the Warrant Shares have been registered as set
forth in Paragraph "(A)" of Article "5" of this Warrant, this Warrant and each
certificate evidencing the Shares issued upon exercise of this Warrant shall be
stamped or imprinted with a legend substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE ACT.
Subject to this Article "6" of this Warrant, the Company may instruct its
transfer agent not to register the transfer of all or a part of this Warrant, or
any of the Warrant Shares, unless one of the conditions specified in the above
legend is satisfied.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Holder as follows:
(A) This Warrant has been duly authorized and executed by the Company and
is a valid and binding obligation of the Company enforceable in accordance with
its terms.
(B) When issued in accordance with the terms hereof, the Warrant Shares
will have been duly authorized and reserved for issuance by the Company, validly
issued, fully paid and nonassessable.
8. REPRESENTATIONS AND WARRANTIES BY THE HOLDER. The Holder represents and
warrants to the Company as follows:
(A) This Warrant is being acquired for its own account, for investment and
not with a view to, or for resale in connection with, any distribution or public
offering thereof within the meaning of the Act. Upon exercise of this Warrant,
the Holder shall, if so requested by the Company, confirm in writing, in a form
reasonably satisfactory to the Company, that the Shares issuable upon exercise
of this Warrant are being acquired for investment and not with a view toward
distribution or resale.
4
(B) The Holder understands that this Warrant and the Warrant Shares have
not been registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the Act
pursuant to Section 4(2) thereof, and that they must be held by the Holder
indefinitely, and that the Holder must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is registered
under the Act or is exempted from such registration.
(C) The Holder has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the purchase of
this Warrant and the Shares purchasable pursuant to the terms of this Warrant
and of protecting its interests in connection therewith.
(D) The Holder is able to bear the economic risk of the purchase of the
Shares pursuant to the terms of this Warrant.
9. RIGHTS OF STOCKHOLDERS. No holder of this Warrant shall be entitled, as a
warrant holder, to vote or receive dividends or be deemed the holder of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised and the Shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein.
10. OPINIONS. The Company shall, at its cost, provide the appropriate opinion
letters to be issued by the Company's counsel in compliance with the provisions
of Rule 144 which was promulgated by the Securities and Exchange Commission
pursuant to Section 4(1) of the Securities Act of 1933, as amended, with respect
to the transfer or sale of this Warrant or the Warrant Shares, if such transfer
or sale is permissible under Rule 144. Furthermore, the Company shall notify its
transfer agent that ▇▇▇▇▇ & Fraade, P.C. is authorized to issue said opinion
letters. If the Company fails to provide or approve legal opinions pursuant to
this Article "10" or Paragraph "(A)" of Article "5" of this Warrant within ten
(10) business days after a request from the Holder, the Company agrees to pay
the Holder five hundred ($500.00) dollars per day for each day that said
opinions or approvals are delayed. The Company acknowledges that it would be
extremely difficult or impracticable to determine the Holder's actual damages
and costs resulting from the delay in providing opinions or approvals for said
sale(s) of securities and the inclusion herein of any such late charges or fees
are the agreed upon liquidated damages representing a reasonable estimate of
those damages and costs and do not constitute a penalty.
11. TRANSFER. Subject to the terms and conditions of this Warrant, including,
but not limited to Paragraph "(B)" of Article "6" of this Warrant, this Warrant
may be transferred, in whole or in part, by delivering a delivering a completed
and duly executed Notice of Assignment (attached hereto as Exhibit "B") to the
Company, with such Notice of Assignment stating the individual or entity to whom
it shall be transferred (the "Transferee"), and whether such transfer shall be
for all rights remaining on the Warrant or only a portion thereof. In the event
of any transfer of rights represented by this Warrant, the Transferee shall
receive a Warrant in this form within ten (10) business days after the Company
receives the Notice of Assignment, and, unless this Warrant has been transferred
in full, a new Warrant representing the rights to acquire Shares with respect to
which this Warrant shall not have been exercised and which have not been
transferred shall also be issued to the Holder within such time. If the Company
fails to deliver a Warrant to the Transferee, or if applicable, a replacement
Warrant to the Holder within the time period required pursuant to this Article
"11" of this Warrant, the Company shall pay to the Transferee or the Holder, as
the case may be, five hundred ($500) dollars per day for each late day of
delivery. The Company acknowledges that it would be extremely difficult or
impracticable to determine the Transferee or Holder's actual damages and costs
resulting from a delay in providing such Warrant, and the inclusion herein of
any such late charges or fees are the agreed upon liquidated damages
representing a reasonable estimate of those damages and costs and do not
constitute a penalty.
5
12. MISCELLANEOUS.
(A) Headings contained in this Warrant are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Warrant.
(B) If any provision which is contained in this Warrant should, for any
reason, be held to be invalid or unenforceable in any respect under the laws of
any jurisdiction, such invalidity or unenforceability shall not affect any other
provision of this Warrant, and this Warrant shall be construed as if such
invalid or unenforceable provision had not been contained herein.
(C) Any notice or other communication required or permitted hereunder must
be in writing and sent by either (i) registered or certified mail, postage
prepaid, return receipt requested, (ii) overnight delivery with confirmation of
delivery or (iii) facsimile transmission with an original mailed by first class
mail, postage prepaid, in each case addressed as follows:
To the Holder: Azzurri Group, LLC
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Fax No.:
With a copy to: ▇▇▇▇▇ & Fraade, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Company Magnitude Information Systems, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇-▇▇ ▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing by registered or certified mail is
impossible due to an absence of postal service, and if the other methods of
sending notice set forth in this Paragraph "(C)" of this Article "12" of this
Warrant are not otherwise available, notice shall be in writing and personally
delivered to the aforesaid address. Each notice or communication shall be deemed
to have been given as of the date so mailed or delivered, as the case may be;
provided, however that any notice sent by facsimile shall be deemed to have been
given as of the date sent by facsimile if a copy of such notice is also mailed
by first class mail on the date sent by facsimile; if the date of mailing
differs from the date of sending by facsimile, then the date of mailing by first
class mail shall be deemed to be the date upon which notice was given.
(D) This Warrant shall in all respects be construed, governed, applied and
enforced under with the internal laws of the State of New York without giving
effect to the principles of conflicts of laws and be deemed to be an agreement
entered into in the State of New York and made pursuant to the laws of the State
of New York. The parties agree that they shall be deemed to have agreed to
binding arbitration in New York, New York, with respect to the entire subject
matter of any and all disputes relating to or arising under this Warrant or any
breach thereof, including, but not limited to, the specific matters or disputes
as to which arbitration has been expressly provided for by other provisions of
this Warrant. Any such arbitration shall be by a panel of three arbitrators and
pursuant to the commercial rules then existing of the American Arbitration
Association in the State of New York, New York City. In all arbitrations,
judgment upon the arbitration award may be entered in any court having
jurisdiction. The parties agree, further, that the prevailing party in any such
arbitration as determined by the arbitrators shall be entitled to such costs and
attorney's fees, if any, in connection with such arbitration as may be awarded
by the arbitrators. In connection with the arbitrators' determination for the
purpose of which party, if any, is the prevailing party, they shall take into
account all of the factors and circumstances including, without limitation, the
relief sought, and by whom, and the relief, if any, awarded, and to whom. In
addition, and notwithstanding the foregoing sentence, a party shall not be
deemed to be the prevailing party in a claim seeking monetary damages, unless
the amount of the arbitration award exceeds the amount offered in a legally
binding writing by the other party by fifteen percent (15%) or more. For
example, if the party initiating arbitration ("A") seeks an award of $100,000
plus costs and expenses, the other party ("B") has offered A $50,000 in a
legally binding written offer prior to the commencement of the arbitration
proceeding, and the arbitration panel awards any amount less than $57,500 to A,
the panel should determine that B has "prevailed". The parties specifically
designate the Courts in New York City, State of New York as properly having
jurisdiction for any proceeding to confirm and enter judgment upon any such
arbitration award. The parties hereby consent to and submit to personal
jurisdiction over each of them by the Courts of the State of New York in any
action or proceeding, waive personal service of any and all process and
specifically consent that in any such action or proceeding, any service of
process may be effectuated upon any of them by certified mail, return receipt
requested, in accordance with Paragraph "(C)" of this Article "12" of this
Warrant.
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(E) Any remedy that is set forth in this Warrant is not exclusive of any
remedies that are provided by law.
(F) The Company shall pay or otherwise reimburse to the Holder all
reasonable fees, costs and expenses actually incurred by the Holder in the
enforcement, administration or collection pursuant to the terms and conditions
of this Warrant and agrees to pay interest thereupon at the rate of two (2%)
percent per month from the date paid or incurred by the Holder until such
expenses are actually paid by the Company. Such obligation shall be binding upon
the Company regardless of whether or not an action has been commenced or is ever
commenced.
(G) Each of the parties further acknowledges and agrees that (i) each has
been advised by counsel during the course of negotiations; (ii) each counsel has
had significant input in the development of this Warrant and (iii) this Warrant
shall not, therefore, be construed more strictly against any party responsible
for its drafting regardless of any presumption or rule requiring construction
against the party whose attorney drafted this agreement.
(H) The parties have not made any representations, warranties, or
covenants with respect to the subject matter hereof which are not set forth
herein, and this Warrant, together with any instruments or other agreements
executed simultaneously herewith, constitutes the entire agreement between them
with respect to the subject matter hereof. All understandings and agreements
heretofore had between the parties with respect to the subject matter hereof are
merged in this Warrant and such other instruments and agreements, which alone
fully and completely express their agreement. This Warrant may not be changed,
modified, extended, terminated or discharged orally, but only by means of a
written agreement which is signed by both parties to this Warrant and which
explicitly states that it modifies this Warrant.
(I) The parties agree to execute any and all such other further
instruments and documents, and to take any and all such further actions which
are reasonably required to effectuate this Warrant and the intents and purposes
hereof.
(J) This Warrant shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, personal
representatives, successors and assigns.
(K) Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Warrant shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Warrant or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions, (ii) the acceptance of performance of anything required by this
Warrant to be performed with knowledge of the breach or failure of a covenant,
condition or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver of any other or subsequent breach.
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(L) All Exhibits annexed or attached to this Warrant are incorporated into
this Warrant by reference thereto and constitute an integral part of this
Warrant.
(M) This Warrant may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
Issued this 18th day of August, 2006.
Magnitude Information Systems, Inc.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Accepted:
Azzurri Group, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
8
EXHIBIT A
NOTICE OF EXERCISE
To: Magnitude Information Systems, Inc.
Attention: Chief Financial Officer
1. The undersigned hereby elects to purchase ________ shares of Common
Stock of Magnitude Information Systems, Inc. pursuant to the terms of this
Warrant, and:
(check the appropriate box:)
|_| tenders herewith payment of the purchase price of such shares in full.
|_| elects cashless exercise pursuant to Paragraph "(B)" of Article "2" of
this Warrant.
2. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_________________________________ (Name)
_________________________________
_________________________________ (Address)
3. The undersigned hereby represents and warrants that the aforesaid
shares of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale, in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares and all representations and warranties of
the undersigned set forth in the attached Warrant are true and correct as of the
date hereof.
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By:
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Title:
---------------------------------
Date:
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9
EXHIBIT B
NOTICE OF ASSIGNMENT
(To be executed by the registered Holder to effect
a transfer of Warrants)
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto ____________________ the right to purchase ______________ shares
of the common stock, par value $.001 per share, of Magnitude Information
Systems, Inc., evidenced by the attached Warrant, together with all right, title
and interest therein, and does irrevocably constitute to transfer and appoint
___________________ to transfer the said right on the books of said company with
full power of substitution in the premises.
Dated: ________________
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Signature
10