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Exhibit 10.68
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO MODTECH HOLDINGS, INC. THAT SUCH REGISTRATION
IS NOT REQUIRED.
Right
to Purchase up to 266,408 Shares of Common Stock
of
Modtech
Holdings, Inc.
(subject
to adjustment as provided herein)
AMENDED AND RESTATED COMMON STOCK PURCHASE
WARRANT
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No.
6
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Issue
Date: March 21, 2008
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MODTECH
HOLDINGS, INC., a corporation organized under the laws of the
State of Delaware (the “
Company ”),
hereby certifies that, for value received, VALENS OFFSHORE SPV I,
LTD., or assigns (the “
Holder ”),
is entitled, subject to the terms set forth below, to purchase from
the Company (as defined herein) from and after the Issue Date of
this Amended and Restated Warrant (as may be amended, restated,
modified and/or supplemented from time to time, this “
Warrant ”)
and at any time or from time to time before 5:00 p.m., New York
time, through the close of business February 28, 2015 (the
“
Expiration Date ”),
up to 266,408 fully paid and nonassessable shares of Common Stock
(as hereinafter defined), $0.01 par value per share, at the
applicable Exercise Price per share (as defined below). The number
and character of such shares of Common Stock and the applicable
Exercise Price per share are subject to adjustment as provided
herein.
This
Warrant amends and restates in its entirety, and is given in
substitution for that certain Common Stock Purchase Warrant
dated February 29, 2008 issued to Holder by the Company (as
amended, restated, modified and/or supplemented from time to
time).
As
used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a)
The
term “
Company ”
shall include Modtech Holdings, Inc. and any person or entity which
shall succeed, or assume the obligations of, Modtech Holdings, Inc.
hereunder.
(b)
The
term “
Common Stock ”
includes (i) the Company’s Common Stock, par value $0.01 per
share; and (ii) any other securities into which or for which any of
the securities described in the preceding clause (i) may be
converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
(c)
The
term “
Other Securities ”
refers to any stock (other than Common Stock) and other securities
of the Company or any other person (corporate or otherwise) which
the holder of the Warrant at any time shall be entitled to receive,
or shall have received, on the exercise of the Warrant, in lieu of
or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities pursuant to Section
4 or otherwise.
(d)
The
“
Exercise Price ”
applicable under this Warrant shall be $0.40.
1.
Exercise of Warrant .
1.1.
Number of Shares Issuable upon Exercise .
From and after the date hereof through and including the Expiration
Date, the Holder shall be entitled to receive, upon exercise of
this Warrant in whole or in part, by delivery of an original or fax
copy of an exercise notice in the form attached hereto as Exhibit A
(the “
Exercise Notice ”),
shares of Common Stock of the Company, subject to adjustment
pursuant to Section 4.
1.2.
Fair Market Value .
For purposes hereof, the “
Fair Market Value ”
of a share of Common Stock as of a particular date (the
“
Determination Date ”)
shall mean:
(a)
If
the Company’s Common Stock is traded on the American
Stock Exchange or another national exchange or is quoted on
the Global or Capital Market of The Nasdaq Stock Market,
Inc.(“
Nasdaq ”),
then the closing or last sale price, respectively, reported for the
last business day immediately preceding the Determination
Date.
(b)
If
the Company’s Common Stock is not traded on the American
Stock Exchange or another national exchange or on the Nasdaq
but is traded on the NASD Over the Counter Bulletin Board,
then the mean of the average of the closing bid and asked
prices reported for the last business day immediately
preceding the Determination Date.
(c)
Except
as provided in clause (d) below, if the Company’s Common
Stock is not publicly traded, then as the Holder and the
Company agree or in the absence of agreement by arbitration in
accordance with the rules then in effect of the American
Arbitration Association, before a single arbitrator to be
chosen from a panel of persons qualified by education and
training to pass on the matter to be decided.
(d)
If
the Determination Date is the date of a liquidation,
dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up pursuant to the
Company’s charter, then all amounts to be payable per
share to holders of the Common Stock pursuant to the charter
in the event of such liquidation, dissolution or winding up,
plus all other amounts to be payable per share in respect of
the Common Stock in liquidation under the charter, assuming
for the purposes of this clause (d) that all of the shares of
Common Stock then issuable upon exercise of the Warrant are
outstanding at the Determination Date.
1.3.
Company Acknowledgment .
The Company will, at the time of the exercise of this Warrant, upon
the request of the holder hereof acknowledge in writing its
continuing obligation to afford to such holder any rights to which
such holder shall continue to be entitled after such exercise in
accordance with the provisions of this Warrant. If the holder shall
fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such holder any
such rights.
1.4.
Trustee for Warrant Holders .
In the event that a bank or trust company shall have been appointed
as trustee for the holders of this Warrant pursuant to Subsection
3.2, such bank or trust company shall have all the powers and
duties of a warrant agent (as hereinafter described) and shall
accept, in its own name for the account of the Holder or Holder
such successor person as may be entitled thereto, all amounts
otherwise payable to the Company or such successor, as the case may
be, on exercise of this Warrant pursuant to this Section
1.
2.
Procedure for Exercise .
2.1.
Delivery of Stock Certificates, Etc., on Exercise
.
The Company agrees that the shares of Common Stock purchased upon
exercise of this Warrant shall be deemed to be issued to the Holder
as the record owner of such shares as of the close of business on
the date on which this Warrant shall have been surrendered and
payment made for such shares in accordance herewith. As soon as
practicable after the exercise of this Warrant in full or in part,
and in any event within three (3) business days thereafter, the
Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and
delivered to the Holder, or as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct in compliance
with applicable securities laws, a certificate or certificates for
the number of duly and validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which such Holder
shall be entitled on such exercise, plus, in lieu of any fractional
share to which such holder would otherwise be entitled, cash equal
to such fraction multiplied by the then Fair Market Value of one
full share, together with any other stock or other securities and
property (including cash, where applicable) to which such Holder is
entitled upon such exercise pursuant to Section 1 or
otherwise.
2.2.
Exercise .
Payment shall be made either in cash or by certified or official
bank check payable to the order of the Company equal to the
applicable aggregate Exercise Price for the number of Common Shares
specified in such Exercise Notice (as such exercise number shall be
adjusted to reflect any adjustment in the total number of shares of
Common Stock issuable to the Holder per the terms of this Warrant)
and the Holder shall thereupon be entitled to receive the number of
duly authorized, validly issued, fully-paid and non-assessable
shares of Common Stock (or Other Securities) determined as provided
herein.
3.
Effect of Reorganization, Etc.; Adjustment of Exercise
Price .
3.1.
Reorganization, Consolidation, Merger, Etc .
In case at any time or from time to time, the Company shall (a)
effect a reorganization, (b) consolidate with or merge into any
other person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or
arrangement contemplating the dissolution of the Company, then, in
each such case, as a condition to the consummation of such a
transaction, if applicable, proper and adequate provision shall be
made by the Company whereby the Holder, on the exercise hereof as
provided in Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of
such dissolution, as the case may be, shall receive, in lieu of the
Common Stock (or Other Securities) issuable on such exercise prior
to such consummation or such effective date, the stock and other
securities and property (including cash) to which such Holder would
have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if such Holder had so
exercised this Warrant, immediately prior thereto, all subject to
further adjustment thereafter as provided in Section
4.
3.2.
Dissolution .
In the event of any dissolution of the Company following the
transfer of all or substantially all of its properties or assets,
the Company, concurrently with any distributions made to holders of
its Common Stock, shall at its expense deliver or cause to be
delivered to the Holder the stock and other securities and property
(including cash, where applicable) receivable by the Holder
pursuant to Section 3.1 to the extent the Holder has exercised the
warrant following the transfer of assets, or, if the Holder shall
so instruct the Company, to a bank or trust company specified by
the Holder and having its principal office in New York, NY as
trustee for the Holder (the “
Trustee ”).
3.3.
Continuation
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