EXHIBIT A-3
EXHIBIT
A-3
NEITHER
THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE
UPON
EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
LIGHTING
SCIENCE GROUP CORPORATION
WARRANT
Warrant
No. [ ]Dated:
___, 2007
Lighting
Science Group Corporation, a Delaware corporation (the “Company”),
hereby certifies that, for value received, [Name of Holder] or its registered
assigns (the “Holder”),
is
entitled to purchase from the Company up to a total of [ ]1
shares
of common stock, $0.001 par value per share (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at an
exercise price equal to $0.35 per share (as adjusted from time to time as
provided in Section
9,
the
“Exercise
Price”),
at
any time and from time to time from and after the date hereof and through
and
including the fifth anniversary of the date hereof (the “Expiration
Date”),
and
subject to the following terms and conditions. This Warrant (this “Warrant”)
is one
of a series of similar warrants issued pursuant to that certain Securities
Purchase Agreement, dated as of the date hereof, by and among the Company
and
the Purchasers identified therein (the “Purchase
Agreement”).
All
such warrants are referred to herein, collectively, as the “Warrants.”
1.
Definitions.
In
addition to the terms defined elsewhere in this Warrant, capitalized terms
that
are not otherwise defined herein have the meanings given to such terms in
the
Purchase Agreement.
2.
Registration
of Warrant.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant
Register”),
in
the name of the record Holder hereof from time to time. The Company may deem
and
treat the registered Holder of this Warrant as the absolute owner hereof
for the
purpose of any exercise hereof or any distribution to the Holder, and for
all
other purposes, absent actual notice to the contrary.
3.
Registration
of Transfers.
The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Transfer Agent or to the
Company at its address specified herein. Upon any such registration or transfer,
a new warrant to purchase Common Stock, in substantially the form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to
the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
4.
Exercise
and Duration of Warrants.
(a)
This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after the date hereof to and including the Expiration Date.
At
6:30 P.M., New York City time on the Expiration Date, the portion of this
Warrant not exercised prior thereto shall be and become void and of no value;
provided that, if the average of the Closing Prices for the five Trading
Days
immediately prior to (but not including) the Expiration Date exceeds the
Exercise Price on the Expiration Date, then this Warrant shall be deemed
to have
been exercised in full (to the extent not previously exercised) on a “cashless
exercise” basis at 6:30 P.M. New York City time on the Expiration Date if a
“cashless exercise” may occur at such time pursuant to Section 10 below.
Notwithstanding anything to the contrary herein, the Expiration Date shall
be
extended for each day following the Effective Date that the Registration
Statement is not effective.
(b)
A
Holder
may exercise this Warrant by delivering to the Company (i) an exercise notice,
in the form attached hereto (the “Exercise
Notice”),
appropriately completed and duly signed, and (ii) payment of the Exercise
Price for the number of Warrant Shares as to which this Warrant is being
exercised (which may take the form of a “cashless exercise” if so indicated in
the Exercise Notice and if a “cashless exercise” may occur at such time pursuant
to Section 10 below), and the date such items are delivered to the Company
(as
determined in accordance with the notice provisions hereof) is an “Exercise
Date.”
The
Holder shall not be required to deliver the original Warrant in order to
effect
an exercise hereunder.
5.
Delivery
of Warrant Shares.
(a)
Upon
exercise of this Warrant, the Company shall promptly (but in no event later
than
three Trading Days after the Exercise Date) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the Warrant
Shares
issuable upon such exercise, free of restrictive legends unless a registration
statement covering the resale of the Warrant Shares and naming the Holder
as a
selling stockholder thereunder is not then effective and the Warrant Shares
are
not freely transferable without volume restrictions pursuant to Rule 144
under
the Securities Act. The Holder, or any Person so designated by the Holder
to
receive Warrant Shares, shall be deemed to have become holder of record of
such
Warrant Shares as of the Exercise Date. The Company shall, upon request of
the
Holder, use its best efforts to deliver Warrant Shares hereunder electronically
through the Depository Trust Corporation or another established clearing
corporation performing similar functions.
(b)
This
Warrant is exercisable, either in its entirety or, from time to time, for
a
portion of the number of Warrant Shares. Upon surrender of this Warrant
following one or more partial exercises, the Company shall issue or cause
to be
issued, at its expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c)
In
addition to any other rights available to a Holder, if the Company fails
to
deliver to the Holder a certificate representing Warrant Shares by the third
Trading Day after the date on which delivery of such certificate is required
by
this Warrant, and if after such third Trading 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 the Warrant Shares that the Holder
anticipated receiving from the Company (a “Buy-In”),
then
the Company shall, within three Trading 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 Common Stock) shall terminate, or (ii) promptly honor its obligation
to
deliver to the Holder a certificate or certificates representing such 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 Price on the date of the event giving rise to the
Company’s obligation to deliver such certificate.
(d)
The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person
or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein
shall
limit a Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise
of
the Warrant as required pursuant to the terms hereof.
6.
Charges,
Taxes and Expenses.
Issuance and delivery of certificates for shares of Common Stock upon exercise
of this Warrant shall be made without charge to the Holder for any issue
or
transfer tax, withholding tax, transfer agent fee or other incidental tax
or
expense in respect of the issuance of such certificates, all of which taxes
and
expenses shall be paid by the Company; provided, however, that the Company
shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares or Warrants
in a name other than that of the Holder or an Affiliate thereof. The Holder
shall be responsible for all other tax liability that may arise as a result
of
holding or transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
7.
Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue
or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable bond or indemnity, if
requested. Applicants for a New Warrant under such circumstances shall also
comply with such other reasonable regulations and procedures and pay such
other
reasonable third-party costs as the Company may prescribe.
8.
Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares
which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of persons
other
than the Holder (taking into account the adjustments and restrictions of
Section
9).
The
Company covenants that all Warrant Shares so issuable and deliverable shall,
upon issuance and the payment of the applicable Exercise Price in accordance
with the terms hereof, be duly and validly authorized, issued and fully paid
and
nonassessable. The Company will take all such actions as may be necessary
to
assure that such shares of Common Stock may be issued as provided herein
without
violation of any applicable law or regulation, or of any requirements of
any
securities exchange or automated quotation system upon which the Common Stock
may be listed.
9.
Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this
Section
9.
(a)
Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to
clause
(ii) or (iii) of this paragraph shall become effective immediately after
the
effective date of such subdivision or combination.
(b)
Pro
Rata Distributions.
If the
Company, at any time while this Warrant is outstanding, distributes to all
holders of Common Stock (i) evidences of its indebtedness, (ii) any security
(other than a distribution of Common Stock covered by the preceding paragraph),
(iii) rights or warrants to subscribe for or purchase any security, or (iv)
any other asset (in each case, “Distributed
Property”),
then
in each such case the Exercise Price in effect immediately prior to the record
date fixed for determination of stockholders entitled to receive such
distribution shall be adjusted (effective on such record date) to equal the
product of such Exercise Price times a fraction of which the denominator
shall
be the average of the Closing Prices for the five Trading Days immediately
prior
to (but not including) such record date and of which the numerator shall
be such
average less the then fair market value of the Distributed Property distributed
in respect of one outstanding share of Common Stock, as determined by the
Company's independent certified public accountants that regularly examine
the
financial statements of the Company (an “Appraiser”).
In
such event, the Holder, after receipt of the determination by the Appraiser,
shall have the right to select an additional appraiser (which shall be a
nationally recognized accounting firm), in which case such fair market value
shall be deemed to equal the average of the values determined by each of
the
Appraiser and such appraiser. As an alternative to the foregoing adjustment
to
the Exercise Price, at the request of the Holder delivered before the 90th
day
after such record date the Company will deliver to such Holder, the Distributed
Property that such Holder would have been entitled to receive in respect
of the
Warrant Shares for which this Warrant could have been exercised immediately
prior to such record date, upon any exercise of the Warrant that occurs after
such record date.
(c)
Fundamental
Transactions.
If, at
any time while this Warrant is outstanding, (i) the Company effects any merger
or consolidation of the Company with or into another Person, (ii) the Company
effects any sale of all or substantially all of its assets in one or a series
of
related transactions, (iii) any tender offer or exchange offer (whether by
the
Company or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (iv) the Company effects any reclassification of the
Common
Stock or any compulsory share exchange pursuant to which the Common Stock
is
effectively converted into or exchanged for other securities, cash or property
(other than as a result of a subdivision or combination of shares of Common
Stock covered by Section 9(a) above) (in any such case, a “Fundamental
Transaction”),
then
the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property as it would
have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in
full
of this Warrant (the “Alternate
Consideration”).
The
aggregate Exercise Price for this Warrant will not be affected by any such
Fundamental Transaction, but the Company shall apportion such aggregate Exercise
Price among the Alternate Consideration in a reasonable manner reflecting
the
relative value of any different components of the Alternate Consideration.
If
holders of Common Stock are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall
be
given the same choice as to the Alternate Consideration it receives upon
any
exercise of this Warrant following such Fundamental Transaction. In the event
of
a Fundamental Transaction, the Company or the successor or purchasing Person,
as
the case may be, shall execute with the Holder a written agreement providing
that:
(x) this
Warrant shall thereafter entitle the Holder to purchase the Alternate
Consideration in accordance with this section 9(c),
(y) in
the
case of any such successor or purchasing Person, upon such consolidation,
merger, statutory exchange, combination, sale or conveyance such successor
or
purchasing Person shall be jointly and severally liable with the Company
for the
performance of all of the Company's obligations under this Warrant and the
Purchase Agreement, and
(z) if
registration or qualification is required under the Securities Act or applicable
state law for the public resale by the Holder of shares of stock and other
securities so issuable upon exercise of this Warrant, all rights applicable
to
registration of the Common Stock issuable upon exercise of this Warrant shall
apply to the Alternate Consideration.
If,
in
the case of any Fundamental Transaction, the Alternate Consideration includes
shares of stock, other securities, other property or assets of a Person other
than the Company or any such successor or purchasing Person, as the case
may be,
in such Fundamental Transaction, then such written agreement shall also be
executed by such other Person and shall contain such additional provisions
to
protect the interests of the Holder as the Board of Directors of the Company
shall reasonably consider necessary by reason of the foregoing. At the Holder’s
request, any successor to the Company or surviving entity in such Fundamental
Transaction shall issue to the Holder a new warrant consistent with the
foregoing provisions and evidencing the Holder’s right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The
terms
of any agreement pursuant to which a Fundamental Transaction is effected
shall
include terms requiring any such successor or surviving entity to comply
with
the provisions of this paragraph (c) and insuring that the Warrant (or any
such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction. If any Fundamental Transaction
constitutes or results in a Change of Control, then at the request of the
Holder
delivered before the 30th
day
after such Fundamental Transaction, the Company (or any such successor or
surviving entity) will purchase the Warrant from the Holder for a purchase
price, payable in cash within five Trading Days after such request (or, if
later, on the effective date of the Fundamental Transaction), equal to the
Black-Scholes value (calculated in accordance with Bloomberg, L.P. using
a 180
day historical volatility) of the remaining unexercised portion of this Warrant
on the date of such request in the case of a third party tender offer, or,
in
the case of any other Fundamental Transaction, on the date of the execution
of
definitive documentation governing such Fundamental Transaction.
(d)
Subsequent
Equity Sales.
(i) If,
at
any time while this Warrant is outstanding, the Company or any Subsidiary
issues
additional shares of Common Stock or rights, warrants, options or other
securities or debt convertible, exercisable or exchangeable for shares of
Common
Stock or otherwise entitling any Person to acquire shares of Common Stock
(collectively, “Common
Stock Equivalents”)
at an
effective net price to the Company per share of Common Stock (the “Effective
Price”)
less
than the Exercise Price (as adjusted hereunder to such date), then the Exercise
Price shall be reduced to equal the Effective Price. For purposes of this
paragraph, in connection with any issuance of any Common Stock Equivalents,
(A)
the maximum number of shares of Common Stock potentially issuable at any
time
upon conversion, exercise or exchange of such Common Stock Equivalents (the
“Deemed
Number”)
shall
be deemed to be outstanding upon issuance of such Common Stock Equivalents,
(B)
the Effective Price applicable to such Common Stock shall equal the minimum
dollar value of consideration payable to the Company to purchase such Common
Stock Equivalents and to convert, exercise or exchange them into Common Stock
(net of any discounts, fees, commissions and other expenses), divided by
the
Deemed Number, and (C) no further adjustment shall be made to the Exercise
Price
upon the actual issuance of Common Stock upon conversion, exercise or exchange
of such Common Stock Equivalents. The Effective Price of Common Stock or
Common
Stock Equivalents issued in any transaction in which more than one type of
securities are issued shall give effect to the allocation by the Company
of the
aggregate amount paid for such securities issued in such
transaction.
(ii) If,
at
any time while this Warrant is outstanding, the Company or any Subsidiary
issues
Common Stock Equivalents with an Effective Price or a number of underlying
shares that floats or resets or otherwise varies or is subject to adjustment
based (directly or indirectly) on market prices of the Common Stock (a
“Floating
Price Security”),
then
for purposes of applying the preceding paragraph in connection with any
subsequent exercise, the Effective Price will be determined separately on
each
Exercise Date and will be deemed to equal the lowest Effective Price at which
any holder of such Floating Price Security is entitled to acquire Common
Stock
on such Exercise Date (regardless of whether any such holder actually acquires
any shares on such date).
(iii) Notwithstanding
the foregoing, no adjustment will be made under this paragraph in respect
of any
Excluded Stock.
(e)
Number
of Warrant Shares.
Simultaneously with any adjustments to the Exercise Price pursuant to paragraphs
(a), (b) or (d) of this Section, the number of Warrant Shares that may be
purchased upon exercise of this Warrant shall be increased or decreased
proportionately, so that after such adjustment the aggregate Exercise Price
payable hereunder for the increased or decreased number of Warrant Shares
shall
be the same as the aggregate Exercise Price in effect immediately prior to
such
adjustment.
(f)
Calculations.
All
calculations under this Section
9
shall be
made to the nearest cent or the nearest 1/100th of a share, as applicable.
The
number of shares of Common Stock outstanding at any given time shall not
include
shares owned or held by or for the account of the Company, and the disposition
of any such shares shall be considered an issue or sale of Common
Stock.
(g)
Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section
9,
the
Company at its expense will promptly compute such adjustment in accordance
with
the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise
of
this Warrant (as applicable), describing the transactions giving rise to
such
adjustments and showing in detail the facts upon which such adjustment is
based.
Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s Transfer Agent.
(h)
Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company or any Subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver
to the
Holder a notice describing the material terms and conditions of such
transaction, at least 20 calendar days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in order
to
participate in or vote with respect to such transaction, and the Company
will
take all steps reasonably necessary in order to insure that the Holder is
given
the practical opportunity to exercise this Warrant prior to such time so
as to
participate in or vote with respect to such transaction; provided, however,
that
the failure to deliver such notice or any defect therein shall not affect
the
validity of the corporate action required to be described in such notice.
10.
Payment
of Exercise Price.
The
Holder shall pay the Exercise Price in immediately available funds; provided,
however, if at anytime after the Required Effectiveness Date there is no
effective Registration Statement registering, or no current prospectus available
for, the resale of the Warrant Shares by the Holder, the Holder may satisfy
its
obligation to pay the Exercise Price through a “cashless exercise,” in which
event the Company shall issue to the Holder the number of Warrant Shares
determined as follows:
|
X
=
Y [(A-B)/A]
|
|
|
where:
|
|
|
X
=
the number of Warrant Shares to be issued to the
Holder.
|
|
|
Y
=
the number of Warrant Shares with respect to which this Warrant
is being
exercised.
|
|
|
A
=
the arithmetic average of the Closing Prices for the five Trading
Days
immediately prior to (but not including) the Exercise
Date.
|
|
|
B
=
the Exercise Price.
|
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction pursuant to this Section 10 shall be deemed to have
been acquired by the Holder, and the holding period for the Warrant Shares
shall
be deemed to have commenced, on the date this Warrant was originally issued
pursuant to the Purchase Agreement.
11.
Limitation
on Exercise.
(a)
Notwithstanding anything to the contrary contained herein, the
number of shares of Common Stock that may be acquired by the Holder upon
any
exercise of this Warrant (or otherwise in respect hereof) shall be limited
to
the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned
by
such Holder and its Affiliates and any other Persons whose beneficial ownership
of Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Exchange Act, does not exceed 4.999% (the “Threshold
Percentage”)
or
9.999% (the “Maximum
Percentage”)
of the
total number of issued and outstanding shares of Common Stock (including
for
such purpose the shares of Common Stock issuable upon such
exercise).
For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation
by the Holder that it has evaluated the limitations set forth in this paragraph
and determined that issuance of the full number of Warrant Shares requested
in
such Exercise Notice is permitted under this paragraph. The Company’s obligation
to issue shares of Common Stock in excess of the limitation referred to in
this
Section shall be suspended (and shall not terminate or expire notwithstanding
any contrary provisions hereof) until such time, if any, as such shares of
Common Stock may be issued in compliance with such limitation. By written
notice
to the Company, the Holder shall have the right (x) at any time and from
time to
time to reduce its Maximum Percentage immediately upon notice to the Company
in
the event and only to the extent that Section 16 of the Exchange Act or the
rules promulgated thereunder (or any successor statute or rules) is changed
to
reduce the beneficial ownership percentage threshold thereunder to a percentage
less than 9.999% and (y) at any time and from time to time, to waive the
provisions of this Section insofar as they relate to the Threshold Percentage
or
to increase or decrease its Threshold Percentage (but not in excess of the
Maximum Percentage) unless the Holder shall have, by written instrument
delivered to the Company, irrevocably waived its rights to so increase or
decrease its Threshold Percentage, but (i) any such waiver, increase or decrease
will not be effective until the 61st day after such notice is delivered to
the
Company, and (ii) any such waiver or increase or decrease will apply only
to the
Holder and not to any other holder of Warrants.
(b) Notwithstanding
anything to the contrary contained herein the maximum number of shares of
Common
Stock that the Company may issue pursuant to the Transaction Documents at
an
effective purchase price less than the Closing Price on the Trading Day
immediately preceding the Closing Date equals 19.99% of the outstanding shares
of Common Stock immediately preceding the Closing Date (the “Issuable
Maximum”),
unless the Company obtains shareholder approval in accordance with the rules
and
regulations of such Trading Market, if applicable. If, at the time any Holder
requests an exercise of any of the Warrants, the Actual Minimum (excluding
any
shares issued or issuable at an effective purchase price in excess of the
Closing Price on the Trading Day immediately preceding the Closing Date)
exceeds
the Issuable Maximum (and if the Company has not previously obtained the
required shareholder approval), then the Company shall issue to the Holder
requesting such exercise a number of shares of Common Stock not exceeding
such
Holder’s pro-rata portion of the Issuable Maximum (based on such Holder’s share
(vis-à-vis other Holders) of the aggregate purchase price paid under the
Purchase Agreement and taking into account any Warrant Shares previously
issued
to such Holder). For the purposes hereof, “Actual
Minimum”
shall
mean, as of any date, the maximum aggregate number of shares of Common Stock
then issued or potentially issuable in the future pursuant to the Transaction
Documents, including any Underlying Shares issuable upon exercise in full
of all
Warrants, without giving effect to any limits on the number of shares of
Common
Stock that may be owned by a Holder at any one time.
12.
Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. If any fraction of a Warrant Share
would, except for the provisions of this Section, be issuable upon exercise
of
this Warrant, the number of Warrant Shares to be issued will be rounded up
to
the nearest whole share.
13.
Notices.
Any and
all notices or other communications or deliveries hereunder (including without
limitation any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number specified
in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (ii)
the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on
any Trading Day, (iii) the Trading Day following the date of mailing, if
sent by
nationally recognized overnight courier service, or (iv) upon actual receipt
by
the party to whom such notice is required to be given. The address for such
notices or communications shall be as set forth in the Purchase
Agreement.
14.
Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 30 days' notice
to
the Holder, the Company may appoint a new warrant agent. Any corporation
into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant
agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
15.
Miscellaneous.
(a)
Subject
to the restrictions on transfer set forth on the first page hereof, this
Warrant
may be assigned by the Holder. This Warrant may not be assigned by the Company
except to a successor in the event of a Fundamental Transaction. This Warrant
shall be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns. Subject to the preceding sentence, nothing
in
this Warrant shall be construed to give to any Person other than the Company
and
the Holder any legal or equitable right, remedy or cause of action under
this
Warrant. This Warrant may be amended only in writing signed by the Company
and
the Holder or their successors and assigns.
(b)
The
Company will not, by amendment of its governing documents 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 of this Warrant, but will at
all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to
protect
the rights of the Holder against impairment. Without limiting the generality
of
the foregoing, the Company (i) will not increase the par value of any Warrant
Shares above the amount payable therefor on such exercise, (ii) will take
all
such action as may be reasonably necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares on the exercise of this Warrant, and (iii) will not close its shareholder
books or records in any manner which interferes with the timely exercise
of this
Warrant.
(c)
Governing
Law; Venue; Waiver Of Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by any of the Transaction Documents (whether brought
against a party hereto or its respective Affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in the
state
and federal courts sitting in the City of New York, Borough of Manhattan.
Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of
the
state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of this Warrant), and hereby irrevocably waives,
and
agrees not to assert in any suit, action or proceeding, any claim that it
is not
personally subject to the jurisdiction of any such court, that such suit,
action
or proceeding is improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action
or proceeding by mailing a copy thereof via registered or certified mail
or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Warrant and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Warrant or
any
of the Transaction Documents or the transactions contemplated hereby or thereby.
If either party shall commence an action or proceeding to enforce any provisions
of this Warrant or any Transaction Document, then the prevailing party in
such
action or proceeding shall be reimbursed by the other party for its reasonable
attorneys fees and other reasonable costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
(d)
The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(e)
In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon
a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER
OF ▇▇▇▇ INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its
authorized officer as of the date first indicated above.
|
LIGHTING
SCIENCE GROUP CORPORATION
|
|
By:
|
|
Name:
|
|
Title:
|
1
Equal to
75% (aggregate) warrant coverage
2007110-Additional
Warrantv.2
FORM
OF
EXERCISE NOTICE
(To
be
executed by the Holder to exercise the right to purchase shares of Common
Stock
under the foregoing Warrant)
To:
Lighting Science Group Corporation
The
undersigned is the Holder of Warrant No. _______ (the “Warrant”)
issued
by Lighting Science Group Corporation, a Delaware corporation (the “Company”).
Capitalized terms used herein and not otherwise defined have the respective
meanings set forth in the Warrant.
| 1. |
The
Warrant is currently exercisable to purchase a total of ______________
Warrant Shares.
|
| 2. |
The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
|
| 3. |
The
Holder intends that payment of the Exercise Price shall be made as
(check
one):
|
____ Cash
Exercise
____ “Cashless
Exercise” under Section 10 (if permitted)
| 4. |
If
the holder has elected a Cash Exercise, the holder shall pay the
sum of
$____________ to the Company in accordance with the terms of the
Warrant.
|
| 5. |
Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the
Warrant.
|
| 6. |
Following
this exercise, the Warrant shall be exercisable to purchase a total
of
______________ Warrant Shares.
|
|
Dated:
,
|
Name
of Holder:
|
|
|
(Print)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant)
|
FORM
OF
ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the within Warrant
to
purchase ____________ shares of Common Stock of Lighting Science Group
Corporation to which the within Warrant relates and appoints ________________
attorney to transfer said right on the books of Lighting Science Group
Corporation with full power of substitution in the premises.
|
Dated:
,
|
|
|
(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant)
|
|
|
Address
of Transferee
|
|
|
In
the presence of:
|
|