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Exhibit 10.12
ASSIGNMENT
AGREEMENT
THIS ASSIGNMENT AGREEMENT (this " Agreement "),
is made on November ___, 2007, (the “
Effective
Date ”) STARAIM ENTERPIRSES
LTD. , a limited liability Company duly incorporated and
validly existing under the laws of the Republic of
Cyprus
(the " Assignor "),
and XENTENIAL
HOLDINGS LTD., a limited liability Company duly incorporated
and validly existing under the laws of the Republic of
Cyprus (the “ Assignee
”).
WHEREAS , Assignor is the legal and beneficial owner of that
certain convertible debenture of Smartire Systems, Inc., a company
existing under the laws of the Yukon Territory (the “
Company
”) held by the Assignor in the face amount of $2,000,000
under which there remains an outstanding principal
balance of $1,770,000 plus outstanding and accrued attached hereto
as Exhibit A (the “ Debenture
”) and that certain warrant to purchase four million one
hundred sixty two thousand five hundred (4,162,500) shares of the
Company attached hereto as Exhibit B (the “ Warrant
”), which was acquired by the Assignor pursuant to the
Amended and Restated Securities Purchase Agreement (“
SPA ”)
between the Company and Assignor, dated December 30,
2005;
WHEREAS , Assignor desires to assign to Assignee and
Assignee desires to accept such assignment from Assignor of the
Debenture and Warrant and its rights as a holder of the Debenture
and the Warrant as well as all of Assignor’s rights and
obligations pursuant to the all of the transaction documents issued
in connection with the SPA and the Debenture including but not
limited to the Amended Registration Rights Agreement between the
Company and Assignor, dated December 30, 2005 (the “
RRA ”),
and the Amended and Restated Irrevocable Transfer Agent
Instructions between the Company and Assignor, dated December 30,
2005 (the “ ITAI ”)
(collectively the SPA, CD, Warrant, RRA, and ITAI shall be referred
to as the “ Transaction
Documents ”) on the basis of the representations,
warranties and agreements contained in this Agreement, and upon the
terms but subject to the conditions set forth herein;
and
NOW, THEREFORE , in consideration of the foregoing and for
other good and valuable consideration, the adequacy of which is
hereby acknowledged, the parties hereto agree as
follows:
1)
Assignment
. For the purchase price as set forth on Schedule I attached
hereto, the Assignor hereby absolutely, irrevocably and
unconditionally sells, assigns, conveys, contributes and transfers
to the Assignee the Debenture and the Warrant as set forth on
Schedule I
and all of its rights and benefits thereunder and conferred therein
as well as all of the Assignor’s rights, obligations and
benefits under the SPA, RRA and ITAI and the Assignee accepts such
assignment as of the date hereof.
This
assignment is made free and clear of any and all claims,
liens, demands, restrictions or encumbrances of any kind
whatsoever.
2)
Delivery of Debenture
and Warrant, Closing . The assignment and
transfer of the Debenture and Warrant as herein contemplated and
all actions required to be completed hereunder shall take place on
a date hereof (the “ Closing Date
”). On the Closing Date the Assignee shall pay to
the Assignor the full Purchase Price in immediately available funds
in US Dollars and upon receipt of the Purchase Price the Assignor
shall deliver to the Assignee the Debenture and Warrant which are
the subject of this Agreement duly endorsed for transfer to the
Assignor.
3)
Additional
Documents . The Assignor and the Company
agree to take such further action and to execute and deliver, or
cause to be executed and delivered, any and all other documents
which are, in the opinion of the Assignee or its counsel, necessary
to carry out the terms and conditions of this
Assignment.
4)
Effective Date and
Counterpart Signature . This Agreement
shall be effective as of the Closing Date. This
Agreement, and acceptance of same, 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. Confirmation of execution by telex or by
telecopy or telefax of a facsimile signature page shall be binding
upon that party so confirming.
5)
Representations and
Warranties of the Assignor.
The
Assignor hereby warrants and represents as
follows:
a)
Organization;
Authority The Assignor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization with full right, corporate, partnership or other
applicable power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry
out its obligations thereunder; and the execution, delivery and
performance by the Assignor of the transactions contemplated by
this Agreement have been duly authorized by all necessary
corporate, partnership or similar action on the part of
the Assignor. This Agreement, when executed and delivered by the
Assignor, will constitute a valid and legally binding obligation of
the Assignor, enforceable against the Assignor in accordance with
its terms, except (a) as limited by applicable bankruptcy , insolvency,
reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of
creditors’ rights generally, (b) as limited by laws relating
to the availability of specific performance, injunctive relief, or
other equitable remedies, or (c) to the extent the indemnification
provisions contained herein may be limited by federal or state
securities laws.
b)
Ownership
of Debenture and Warrant. Assignor is the sole
owner and holder of the Debenture and Warrant to be transferred
hereby. There are no liens, claims or encumbrances
affecting any of the Debenture and Warrant except with respect to
restrictions on the further transfer of the Debenture and Warrant
as may be imposed by the Securities Act of 1933, as
amended. The Debenture and Warrant have been held by the
Assignor exclusively since their acquisition and the Assignor has
not pledged or created any lien with respect to the Debenture and
Warrant during the term of its ownership.
c)
Consents
. No authorization, consent, approval or other order of,
or declaration to or filing with, any governmental agency or body
or other person is required for the valid authorization, execution,
delivery and performance by the Assignor of this Agreement and the
consummation of the transactions contemplated hereby.
6)
Representations and
Warranties of the Assignee .
a)
Organization;
Authority . The Assignee, if not a natural
person, is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization
with full right, corporate, partnership or other applicable power
and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its
obligations thereunder, and the execution, delivery and performance
by the Assignee of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate or similar
action on the part of the Assignee. This Agreement, when
executed and delivered by the Assignee, will constitute a valid and
legally binding obligation of the Assignee, enforceable against the
Assignee in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors’ rights generally, (b) as
limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (c)
to the extent the indemnification provisions contained herein may
be limited by federal or state securities laws.
b)
Investment
Intent . The Assignee is acquiring the Debenture
and the Warrant for investment for his own account, not as a
nominee or agent, and not with a view to, or for sale in connection
with, any distribution, resale or public offering of such Warrants
or any part thereof in violation of the United States Securities
and Exchange Act of 1933, as amended (“ Securities Act
”). The Assignee does not presently have any
contract, undertaking, agreement or arrangement with any entity,
organization or individual (each a “ Person
”) to sell, tansfer or grant participations to any Person
with respect to the Debenture and the Warrant.
c)
General
Solicitation . The Assignee is not accepting such
Assignment as a result of any advertisement, article, notice or
other communication regarding the Warrants published in any
newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or any other general
solicitation or general advertisement.
d)
Consents
. No authorization, consent, approval or other order of,
or declaration to or filing with, any governmental agency or body
or other person is required for the valid authorization, execution,
delivery and performance by the Assignor of this Agreement and the
consummation of the transactions contemplated hereby.
e)
The Assignee hereby acknowledges that the Debenture and the
Warrant, and the shares issuable there under, may only be disposed
of in compliance with United States Federal and State Securities
Laws. The Assignee further acknowledges that in
connection with any transfer of the Debenture and Warrant
subsequent to the date hereof and other than pursuant to an
effective registration statement, the Company and/or the
Company’s transfer agent may require an opinion of counsel,
the form and substance of which opinion shall be reasonably
satisfactory to the Company and/or the Company’s transfer
agent, as applicable.
f)
Stop
Transfer Notices . The Assignee agrees that, in
order to ensure compliance with the restrictions referred to
herein, appropriate “ stop transfer
” instructions may be issued to the Company’s transfer
agent.
7)
Governing Law;
Submission to Jurisdiction . THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES. EACH PARTY AGREES THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT
SHALL BE BROUGHT IN A U.S. FEDERAL OR STATE COURT OF COMPETENT
JURISDICTION SITTING IN THE HUDSON COUNTY, IN THE STATE OF NEW
JERSEY. EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF SUCH COURT AND
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN
INCONVENIENT FORUM OR A LACK OF PERSONAL JURISDICTION TO THE
MAINTENANCE OF ANY ACTION OR PROCEEDING AND ANY RIGHT OF
JURISDICTION OR VENUE ON ACCOUNT OF THE PLACE OF RESIDENCE OR
DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
8)
Amendments
. No provision hereof may be waived or modified other
than by an instrument in writing signed by the party against whom
enforcement is sought.
9)
Severability
. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.
10)
Waiver and
Consent . The Company hereby waives
compliance with 2(f) of the SPA and Section 7 of the Warrant in
connection with this Agreement and consents to the assignment of
the Debenture and Warrant and all rights and interests that the
Assignor has under the Transaction Documents from the Assignor to
the Assignee.
[SIGNATURE PAGE
TO IMMEDIATELY FOLLOW]
IN WITNESS WHEREOF , the parties hereto have executed this
Agreement the day and year first above written.
ASSIGNOR
STARAIM ENTERPIRSES LTD.
By:
/s/Nairy
Merheje
Name: Nairy
Merheje
Title:
Director
By:
Name:
Title: Director
ASSIGNEE
XENTENIAL HOLDINGS LTD.
By:
/s/Nairy
Merheje
Name:
Nairy Merheje
Title: Director
By:
Name:
Title: Director
COMPANY
SMARTIRE SYSTEMS INC.
By:
/s/Jeff
Finkelstein
Name: Jeff
Finkelstein
Title: Chief
Financial Officer
SCHEDULE
I
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Assignee Name
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Company Name
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Convertible Debenture
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Warrant
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Purchase Price
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Xentential
Holdings, Ltd.
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Smartire
Systems Inc.
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Debenture
No.3
Dated
December 30, 2005
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Warrant
No. 001
Dated
December 30, 2005
Warrant
Shares 4,162,500
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$1,770,000
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Exhibit A
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SMARTIRE SYSTEMS INC.
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IInterest
on Convertible Debentures
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Nov
30, 2007
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Interest
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Number
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Total
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Gross
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rate
per
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of
days
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#
of
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Proceeds
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Date
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annum
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in
the year
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days
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TOTAL
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USD
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From
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To
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USD
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2,000,000
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June
23 05
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Sept
19 2007
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10 |
% |
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360
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806
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447,778
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1,885,000
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Sept
20 07
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Sept
28 2007
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10 |
% |
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360
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8
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4,189
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1,770,000
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Sept
28 2007
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November
30 2007
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10 |
% |
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360
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64
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31,467
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Interest
paid ($1M allocated to $30M)
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Oct
2005
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(66,667 |
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416,767
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Exhibit
B
WARRANT
THE
SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL IN A FORM REASONABLY
SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THIS WARRANT
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT.
SMARTIRE SYSTEMS INC.
AMENDED AND RESTATED
Warrant to Purchase Common Stock
Warrant
No.: 001 Number of Shares: 4,162,500
Date
of Issuance: December _, 2005
Smartire
Systems Inc., a
corporation organized and existing under the laws of the Yukon
Territory (the “ Company
”), hereby certifies that, for Ten United States Dollars
($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Staraim Enterprises Limited (“Staraim”), a
corporation organized under the laws of Cyprus, the registered
holder hereof or its permitted assigns, is entitled, subject
to the terms set forth below, to purchase from the Company
upon surrender of this Warrant, at any time or times on or
after the date hereof, but not after 11:59 P.M. Eastern
Time on the Expiration Date (as defined herein) four million
one hundred sixty two thousand five hundred sixty
six (4,162,500) fully paid and nonassessable
shares of Common Stock (as defined herein) of the Company (the
“ Warrant
Shares ”) at the exercise price per share
provided in Section 1(b) below or as subsequently
adjusted; provided, however, that in no event shall the holder
be entitled to exercise this Warrant for a number of Warrant
Shares in excess of that number of Warrant Shares which, upon
giving effect to such exercise, would cause the aggregate
number of shares of Common Stock beneficially owned by the
holder and its affiliates to exceed 4.99% of the outstanding
shares of the Common Stock following such exercise, except
within sixty (60) days of the Expiration Date. For
purposes of the foregoing proviso, the aggregate number of
shares of Common Stock beneficially owned by the holder and
its affiliates shall include the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to
which the determination of such proviso is being made, but
shall exclude shares of Common Stock which would be issuable
upon (i) exercise of the remaining, unexercised Warrants
beneficially owned by the holder and its affiliates and
(ii) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company
beneficially owned by the holder and its affiliates
(including, without limitation, any convertible notes or
preferred stock) subject to a limitation on conversion or
exercise analogous to the limitation contained
herein. Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. For
purposes of this Warrant, in determining the number of
outstanding shares of Common Stock a holder may rely on the
number of outstanding shares of Common Stock as reflected in
(1) the Company’s most recent Form 10-QSB or Form
10-KSB, as the case may be, (2) a more recent public
announcement by the Company or (3) any other notice by the
Company or its transfer agent setting forth the number of
shares of Common Stock outstanding. Upon the
written request of any holder, the Company shall promptly, but
in no event later than one (1) Business Day following the
receipt of such notice, confirm in writing to any such holder
the number of shares of Common Stock then
outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect
to the exercise of Warrants (as defined below) by such holder
and its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported.
Section
1.
(a)
This Warrant is the common stock purchase warrant (the “
Warrant
”) issued in connection with an amended and restated
convertible debenture dated December _, 2005 by and between the
Company and Staraim (the “ Convertible
Debenture ”).
(b)
Definitions
. The following words and terms as used in this Warrant
shall have the following meanings:
(i)
“ Approved Stock
Plan ” means any employee benefit plan which has been
approved by the Board of Directors of the Company, pursuant to
which the Company’s securities may be issued to any employee,
officer or director for services provided to the
Company.
(ii)
“ Business Day
” means any day other than Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized or
required by law to remain closed.
(iii)
“ Closing Bid
Price ” means the closing bid price of Common Stock as
quoted on the Principal Market (as reported by Bloomberg Financial
Markets (“ Bloomberg
”) through its “Volume at Price”
function).
(iv)
“ Common Stock
” means (i) the Company’s common stock, no par
value per share, and (ii) any capital stock into which such
Common Stock shall have been changed or any capital stock resulting
from a reclassification of such Common Stock.
(v)
“ Excluded
Securities ” means, provided such security is issued
at a price which is greater than or equal to the arithmetic average
of the Closing Bid Prices of the Common Stock for the ten (10)
consecutive trading days immediately preceding the date of
issuance, any of the following: (a) any issuance by the Company of
securities in connection with a strategic partnership or a joint
venture (the primary purpose of which is not to raise equity
capital), (b) any issuance by the Company of securities as
consideration for a merger or consolidation or the acquisition of a
business, product, license, or other assets of another person or
entity, (c) any shares of capital stock or other securities
exercisable for or convertible into shares of capital stock
pursuant to a commitment arising on or prior to the date hereof and
(d) options to purchase shares of Common Stock, provided (I) such
options are issued after the date of this Warrant to employees of
the Company within thirty (30) days of such employee’s
starting his employment with the Company, and (II) the exercise
price of such options is not less than the Closing Bid Price of the
Common Stock on the date of issuance of such option.
(vi)
“ Expiration
Date ” means June 23, 2010 or, if such date falls on a
Saturday, Sunday or other day on which banks are required or
authorized to be closed in the City of New York or the State of New
York or on which trading does not take place on the Principal
Exchange or automated quotation system on which the Common Stock is
traded (a “ Holiday
”), the next date that is not a Holiday.
(vii)
“ Issuance Date
” means June 23, 2005.
(viii)
“ Options
” means any rights, warrants or options to subscribe for or
purchase Common Stock or Convertible Securities.
(ix)
“ Other
Securities ” means (i) those options and warrants
of the Company issued prior to, and outstanding on, the Issuance
Date of this Warrant, (ii) the shares of Common Stock issuable on
exercise of such options and warrants, provided such options and
warrants are not amended after the Issuance Date of this Warrant
and (iii) the shares of Common Stock issuable upon exercise of
this Warrant.
(x)
“ Person ”
means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency
thereof.
(xi)
“ Principal
Market ” means the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market, the Nasdaq
SmallCap Market, whichever is at the time the principal trading
exchange or market for such security, or the over-the-counter
market on the electronic bulletin board for such security as
reported by Bloomberg or, if no bid or sale information is reported
for such security by Bloomberg, then the average of the bid prices
of each of the market makers for such security as reported in the
“pink sheets” by the National Quotation Bureau,
Inc.
(xii) “
Registration
Rights ” the shares of the Company’s Common
Stock underlying this warrant shall have
“piggy-back” and demand registration
rights.
(xiii)
“ Securities Act
” means the Securities Act of 1933, as amended.
(xiv)
“ Warrant
” means this Warrant and all Warrants issued in exchange,
transfer or replacement thereof.
(xv)
“ Warrant Exercise
Price ” shall be Sixteen Cents ($0.16) or as
subsequently adjusted as provided in Section 8
hereof.
(xvi)
“ Warrant Shares
” means the shares of Common Stock issuable at any time upon
exercise of this Warrant.
(c)
Other Definitional Provisions.
(i)
Except as otherwise specified herein, all references herein
(A) to the Company shall be deemed to include the
Company’s successors and (B) to any applicable law
defined or referred to herein shall be deemed references to such
applicable law as the same may have been or may be amended or
supplemented from time to time.
(ii)
When used in this Warrant, the words “ herein
”, “ hereof
”, and “ hereunder
” and
words of similar import, shall refer to this Warrant as a whole and
not to any provision of this Warrant, and the words “
Section
”, “ Schedule
”, and “ Exhibit
” shall refer to Sections of, and Schedules and Exhibits to,
this Warrant unless otherwise specified.
(iii)
Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural,
and vice versa.
Section
2.
Exercise of
Warrant . Subject to the terms and conditions
hereof, this Warrant may be exercised by the holder hereof then
registered on the books of the Company, pro rata as hereinafter
provided, at any time on any Business Day on or after the opening
of business on such Business Day, commencing with the first day
after the date hereof, and prior to 11:59 P.M. Eastern Time on
the Expiration Date, by (i) delivery of a written notice, in
the form of the subscription notice attached as Exhibit A
hereto (the “ Exercise
Notice ”), of such holder’s election to exercise
this Warrant, which notice shall specify the number of Warrant
Shares to be purchased, (ii) payment to the Company of an
amount equal to the Warrant Exercise Price(s) applicable to the
Warrant Shares being purchased, multiplied by the number of Warrant
Shares (at the applicable Warrant Exercise Price) as to which
this Warrant is being exercised (plus any applicable issue or
transfer taxes) (the “ Aggregate Exercise
Price ”) in cash or wire transfer of immediately
available funds and (iii) the surrender of this Warrant (or an
indemnification undertaking with respect to this Warrant in the
case of its loss, theft or destruction) to a common carrier for
overnight delivery to the Company as soon as practicable following
such date. In the event of any exercise of the rights
represented by this Warrant in compliance with this Section 2(a),
the Company shall on the fifth (5th) Business Day following
the date of receipt of the Exercise Notice, the Aggregate Exercise
Price and this Warrant (or an indemnification undertaking with
respect to this Warrant in the case of its loss, theft or
destruction) and the receipt of the representations of the holder
specified in Section 6 hereof, if requested by the Company (the
“ Exercise Delivery
Documents ”), and if the Common Stock is DTC eligible
credit such aggregate number of shares of Common Stock to which the
holder shall be entitled to the holder’s or its
designee’s balance account with The Depository Trust Company;
provided, however, if the holder who submitted the Exercise Notice
requested physical delivery of any or all of the Warrant Shares,
or, if the Common Stock is not DTC eligible then the
Company shall, on or before the fifth (5 th ) Business
Day following receipt of the
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