EXHIBIT
4.34
NEITHER THIS WARRANT NOR THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “
SECURITIES ACT ”), OR ANY STATE SECURITIES LAWS AND
MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF
COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO
THE COMPANY, THAT THIS WARRANT OR SUCH SECURITIES, AS APPLICABLE,
MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED
IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES
LAWS.
BAYWOOD INTERNATIONAL,
INC.
Warrants for the
Purchase
of
Shares of Common Stock, Par Value
$0.001 Per Share
No. W-181
THIS CERTIFIES that, for consideration, the receipt and sufficiency
of which are hereby acknowledged, and other value received, Eric
Skae (the “ Holder ”) is entitled to subscribe
for, and purchase from, BAYWOOD INTERNATIONAL, INC., a
Nevada corporation (the “ Company ”), upon the
terms and conditions set forth herein, at any time or from time to
time on or after October 23, 2008 (the “ Initial Exercise
Date ”) until 5:00 P.M. New York City local time on the
fifth (5 th ) anniversary of the Initial Exercise Date
(the “ Exercise Period ”), up to an aggregate of
150,000 shares of common stock, par value $0.001 per share (the
“ Common Stock ”), of the Company. This
Warrant is initially exercisable at a price of $0.85 per share,
subject to adjustment as described in this Warrant. The term
“ Exercise Price ” shall mean, depending on the
context, the initial exercise price (as set forth above) or the
adjusted exercise price per share. The Company may, in its
sole discretion, reduce the then current Exercise Price to any
amount or extend the Exercise Period, at any time. Such
modifications to the Exercise Price or Exercise Period may be
temporary or permanent.
As used herein, the term “ this
Warrant ” shall mean and include this Warrant and any
Warrant or Warrants hereafter issued as a consequence of the
exercise or transfer of this Warrant in whole or in part.
Each share of Common Stock issuable upon the exercise hereof
shall be hereinafter referred to as a “ Warrant Share
”.
1.
(a)
Subject to the terms of this Warrant,
this Warrant may be exercised at any time in whole and from time to
time in part, at the option of the Holder, on or after the Initial
Exercise Date and on or prior to the end of the Exercise Period.
This Warrant shall initially be exercisable in whole or in
part for that number of fully paid and
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nonassessable shares of Common Stock as
indicated on the first page of this Warrant, for an exercise price
per share equal to the Exercise Price, by delivery to the Company
at its office at 9380 E. Bahia Dr., Suite A201, Scottsdale, Arizona
85260, or at such other place as is designated in writing by the
Company, of:
(i)
a completed Election to Purchase, in the
form set forth in Exhibit A , executed by the Holder
exercising all or part of the purchase rights represented by this
Warrant;
(ii)
this Warrant; and
(iii)
subject to Section 1(c) below, payment of
an amount equal to the product of the Exercise Price multiplied by
the number of shares of Common Stock being purchased upon such
exercise in the form of, at the Holder’s option, (A) a
certified or bank cashier’s check payable to the Company, or
(B) a wire transfer of funds to an account designated by the
Company.
(b)
As used herein:
(i)
“ Fair Market Value ”
of a security shall mean, on any given day, shall mean the average
of the closing prices of such security’s sales on all
securities exchanges on which such security may at the time be
listed on such day, or, if there has been no sales on any such
exchange on such day, the average of the highest bid and
lowest asked prices on all such exchanges at the end of such day,
or, if on such day such security is not so listed, the average of
the representative bid and asked prices quoted on the
over-the-counter bulletin board (the “ OTCBB ”)
as of 4:00 P.M., New York time, or, if on such day such
security is not quoted on the OTCBB, the average of the highest bid
and lowest asked prices on such day in the domestic
over-the-counter market as reported by the Pink Sheet, LLC, or any
similar successor organization. If at any time such security
is not listed on any securities exchange or quoted on the OTCBB or
the over-the-counter market, the “Fair Market Value”
shall be as determined by the Board of Directors of the Company in
good faith, absent manifest error.
(c)
Cashless Exercise
. If at any time after the date of
the issuance of this Warrant there is no effective registration
statement registering, or no current prospectus available for, the
resale of the Warrant Shares by the Holder, then this Warrant may
also be exercised only at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive,
without the payment by the Holder of any additional consideration,
a certificate for the number of Warrant Shares equal to the number
as is computed using the following formula:
X = Y (A-B)
A
where
X =
the number of Warrant Shares to be issued
to the Holder pursuant to this Warrant.
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Y =
the number of Warrant Shares covered by
this Warrant with respect to which the cashless exercise election
is made pursuant to this Section 1(c).
A =
the Fair Market Value (as defined above)
of one Warrant Share.
B =
the Exercise Price in effect at the time
the cashless exercise election is made pursuant to this Section
1(c).
(d)
Upon the exercise of this Warrant, the
Company shall issue and cause promptly to be delivered upon such
exercise to, or upon the written order of, the Holder a certificate
or certificates for the number of full Warrant Shares to which such
Holder shall be entitled, together with cash in lieu of any
fraction of a Warrant Share otherwise issuable upon such exercise.
Such certificate or certificates shall be deemed to have been
issued, and any person so designated to be the person or persons
entitled to receive the Warrant Shares issuable upon exercise of
this Warrant shall be deemed to have become a holder of record of
such Warrant Shares for all purposes, as of the close of business
on the date of the surrender of this Warrant and full payment of
the Exercise Price.
(e)
If this Warrant is exercised in respect
of less than all of the Warrant Shares evidenced by this Warrant at
any time prior to the end of the Exercise Period, a new Warrant
evidencing the remaining Warrant Shares shall be issued to the
Holder, or its nominee(s), without charge therefor.
2.
Upon each exercise of the Holder’s
rights to purchase Warrant Shares, the Holder shall be deemed to be
the holder of record of the Warrant Shares, notwithstanding that
the transfer books of the Company shall then be closed or
certificates representing the Warrant Shares with respect to which
this Warrant was exercised shall not then have been actually
delivered to the Holder.
3.
Any Warrants issued upon the transfer or
exercise in part of this Warrant shall be numbered and shall be
registered in a warrant register (the “ Warrant
Register ”) as they are issued. This Warrant shall
be transferable on the books of the Company only upon delivery
thereof duly endorsed by the Holder or by his duly authorized
attorney or representative, or accompanied by proper evidence of
succession, assignment, or authority to transfer. In all
cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced.
Upon any registration of transfer, the Company shall deliver
a new Warrant or Warrants to the person entitled thereto.
This Warrant may be exchanged, at the option of the Holder
thereof, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the
right to purchase a like number of Warrant Shares (or portions
thereof), upon surrender to the Company or its duly authorized
agent. Notwithstanding the foregoing, the Company shall have
no obligation to cause Warrants to be transferred on its books to
any person if, in the opinion of counsel to the Company, such
transfer does not comply with the provisions of the Securities Act,
and the rules and regulations thereunder.
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4.
The Company shall pay all federal and
state taxes (other than taxes on income of the Holder), documentary
taxes, stamp taxes, if any, and other governmental charges that may
be imposed upon the issuance or delivery of this Warrant or upon
the issuance or delivery of Warrant Shares upon the exercise of
this Warrant, provided , however , that the Company
shall not be required to pay any taxes payable in connection with
any transfer involved in the issuance or delivery of any Warrants
or Warrant Shares in a name other than that of the Holder in
respect of which such Warrant Shares are issued.
5.
(a) The Company shall at all times
reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of providing for the exercise
of the Warrants, such number of shares of Common Stock as shall,
from time to time, be sufficient therefor. The Company
covenants that all Warrant Shares which may be issued upon the
exercise of the purchase rights represented by this Warrant will,
upon exercise of the purchase rights represented by this Warrant,
be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue), without any personal liability
attaching to the ownership thereof and will not be issued in
violation of any preemptive or similar rights of stockholders.
The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute
and issue the necessary certificates for the Warrant Shares upon
the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to
assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any
requirements of the trading market upon which the Common Stock may
be listed.
(b)
The transfer agent for the Common Stock
and every subsequent transfer agent for any of the Company’s
securities issuable upon the exercise of this Warrant shall be
irrevocably authorized and directed at all times to reserve such
number of authorized securities as shall be required for such
purpose. The Company shall keep a copy of this Warrant on
file with the transfer agent for the Common Stock and with every
subsequent transfer agent for shares of the Company’s
securities issuable upon the exercise of this Warrant. The
Company shall supply such transfer agent with duly executed
certificates representing the Common Stock or other securities for
such purposes.
(c)
The Company shall not by any action
including, without limitation, amending its Articles of
Incorporation 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 actions as may be necessary or
appropriate to protect the rights of the Holder against impairment.
Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any shares of Common
Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such
increase in par value, and (ii) take all such action as may be
necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant.
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6.
The Company will make all filings under
Federal and state securities laws, that are required in connection
with the issuance and delivery of this Warrant, the exercise of
this Warrant, and the issuance and delivery of the Warrant Shares
issued upon exercise of this Warrant.
7 .
The Exercise Price for the Warrants in
effect from time to time shall be subject to adjustment as
follows:
(a)
If the Company, at any time while this
Warrant is outstanding: (i) pays a stock dividend or otherwise make
a distribution or distributions on shares of its Common Stock
(which, for avoidance of doubt, shall not include any shares of
Common Stock issued by the Company pursuant to this Warrant), (ii)
subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares,
or (iv) issues by reclassification of shares of the Common Stock
any shares of capital stock of the Company, then in each case the
Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) 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 this Section 7(a) shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in
the case of a subdivision, combination or
re-classification.
(b)
If the Company, at any time while this
Warrant is outstanding, shall distribute to all or substantially
all holders of Common Stock (and not to the Holder) evidence of its
indebtedness or assets (including cash and cash dividends) or
rights or warrants to subscribe for or purchase any security other
than the Common Stock (which shall be subject to Section 7(a)),
then in each such case the Exercise Price shall be adjusted by multiplying the Exercise Price in effect
immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution by a fraction of
which (i) the denominator shall be the Fair Market Value per share
of Common Stock determined as of the record date mentioned above
and (ii) the numerator shall be su
