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EXHIBIT 10.8
THIS
WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT
HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXCEPT AS
OTHERWISE SET FORTH HEREIN OR IN A SECURITIES PURCHASE
AGREEMENT
DATED AS
OF JUNE 16, 2008, NEITHER THIS WARRANT NOR ANY OF SUCH SHARES
MAY
BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT OR, AN
OPINION
OF
COUNSEL, IN FORM, SUBSTANCE AND SCOPE, CUSTOMARY FOR OPINIONS
OF
COUNSEL IN
COMPARABLE TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH
ACT OR UNLESS SOLD PURSUANT TO RULE 144 OR REGULATION S UNDER
SUCH
ACT.
Right to
Purchase
4,000,000 Shares
of Common Stock,
no par value per
share
STOCK PURCHASE WARRANT
THIS
CERTIFIES THAT, for value received, AJW Partners, LLC or its
registered assigns, is entitled to purchase from Ingen
Technologies, Inc., a
Georgia corporation (the "Company"), at any time or from time to
time during the
period specified in Paragraph 2 hereof, 4,000,000 fully paid and
nonassessable
shares of the Company's Common Stock, no par value per share (the
"Common
Stock"), at an exercise price per share equal to $.001 (the
"Exercise Price").
The term "Warrant Shares," as used herein, refers to the shares of
Common Stock
purchasable hereunder. The Warrant Shares and the Exercise Price
are subject to
adjustment as provided in Paragraph 4 hereof. The term "Warrants"
means this
Warrant and the other warrants issued pursuant to that certain
Securities
Purchase Agreement, dated June 16, 2008, by and among the Company
and the Buyers
listed on the execution page thereof (the "Securities Purchase
Agreement").
This
Warrant is subject to the following terms, provisions, and
conditions:
1.
MANNER OF
EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
Subject to the provisions hereof, this Warrant may be exercised by
the holder
hereof, in whole or in part, by the surrender of this Warrant,
together with a
completed exercise agreement in the form attached hereto (the
"Exercise
Agreement"), to the Company during normal business hours on any
business day at
the Company's principal executive offices (or such other office or
agency of the
Company as it may designate by notice to the holder hereof), and
upon (i)
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payment to the Company in cash, by certified or official bank check
or by wire
transfer for the account of the Company of the Exercise Price for
the Warrant
Shares specified in the Exercise Agreement or (ii) if the resale of
the Warrant
Shares by the holder is not then registered pursuant to an
effective
registration statement under the Securities Act of 1933, as amended
(the
"Securities Act"), delivery to the Company of a written notice of
an election to
effect a "Cashless Exercise" (as defined in Section 11(c) below)
for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so
purchased
shall be deemed to be issued to the holder hereof or such holder's
designee, as
the record owner of such shares, as of the close of business on the
date on
which this Warrant shall have been surrendered, the completed
Exercise Agreement
shall have been delivered, and payment shall have been made for
such shares as
set forth above. Certificates for the Warrant Shares so purchased,
representing
the aggregate number of shares specified in the Exercise Agreement,
shall be
delivered to the holder hereof within a reasonable time, not
exceeding five (5)
business days, after this Warrant shall have been so exercised. The
certificates
so delivered shall be in such denominations as may be requested by
the holder
hereof and shall be registered in the name of such holder or such
other name as
shall be designated by such holder. If this Warrant shall have been
exercised
only in part, then, unless this Warrant has expired, the Company
shall, at its
expense, at the time of delivery of such certificates, deliver to
the holder a
new Warrant representing the number of shares with respect to which
this Warrant
shall not then have been exercised. In addition to all other
available remedies
at law or in equity, if the Company fails to deliver certificates
for the
Warrant Shares within five (5) business days after this Warrant is
exercised,
then the Company shall pay to the holder in cash a penalty (the
"Penalty") equal
to 2% of the number of Warrant Shares that the holder is entitled
to multiplied
by the Market Price (as hereinafter defined) for each day that the
Company fails
to deliver certificates for the Warrant Shares. For example, if the
holder is
entitled to 100,000 Warrant Shares and the Market Price is $2.00,
then the
Company shall pay to the holder $4,000 for each day that the
Company fails to
deliver certificates for the Warrant Shares. The Penalty shall be
paid to the
holder by the fifth day of the month following the month in which
it has
accrued.
Notwithstanding anything in this Warrant to the contrary, in no
event
shall the holder of this Warrant be entitled to exercise a number
of Warrants
(or portions thereof) in excess of the number of Warrants (or
portions thereof)
upon exercise of which the sum of (i) the number of shares of
Common Stock
beneficially owned by the holder and its affiliates (other than
shares of Common
Stock which may be deemed beneficially owned through the ownership
of the
unexercised Warrants and the unexercised or unconverted portion of
any other
securities of the Company (including the Notes (as defined in the
Securities
Purchase Agreement)) subject to a limitation on conversion or
exercise analogous
to the limitation contained herein) and (ii) the number of shares
of Common
Stock issuable upon exercise of the Warrants (or portions thereof)
with respect
to which the determination described herein is being made, would
result in
beneficial ownership by the holder and its affiliates of more than
4.9% of the
outstanding shares of Common Stock. For purposes of the immediately
preceding
sentence, beneficial ownership shall be determined in accordance
with Section
13(d) of the Securities Exchange Act of 1934, as amended, and
Regulation 13D-G
thereunder, except as otherwise provided in clause (i) of the
preceding
sentence. Notwithstanding anything to the contrary contained
herein, the
limitation on exercise of this Warrant set forth herein may not be
amended
without (i) the written consent of the holder hereof and the
Company and (ii)
the approval of a majority of shareholders of the Company.
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2.
PERIOD OF
EXERCISE. This Warrant is exercisable at any time or from
time to time on or after the date on which this Warrant is issued
and delivered
pursuant to the terms of the Securities Purchase Agreement and
before 6:00 p.m.,
New York, New York time on the seventh (7th) anniversary of the
date of issuance
(the "Exercise Period").
3.
CERTAIN
AGREEMENTS OF THE COMPANY. The Company hereby covenants and
agrees as follows:
(A) SHARES TO BE
FULLY PAID. All Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be validly
issued, fully
paid, and nonassessable and free from all taxes, liens, and charges
with respect
to the issue thereof.
(B) RESERVATION
OF SHARES. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of
issuance
upon exercise of this Warrant, a sufficient number of shares of
Common Stock to
provide for the exercise of this Warrant.
(C) LISTING. The
Company shall promptly secure the listing of the
shares of Common Stock issuable upon exercise of the Warrant upon
each national
securities exchange or automated quotation system, if any, upon
which shares of
Common Stock are then listed (subject to official notice of
issuance upon
exercise of this Warrant) and shall maintain, so long as any other
shares of
Common Stock shall be so listed, such listing of all shares of
Common Stock from
time to time issuable upon the exercise of this Warrant; and the
Company shall
so list on each national securities exchange or automated quotation
system, as
the case may be, and shall maintain such listing of, any other
shares of capital
stock of the Company issuable upon the exercise of this Warrant if
and so long
as any shares of the same class shall be listed on such national
securities
exchange or automated quotation system.
(D) CERTAIN
ACTIONS PROHIBITED. The Company will not, by amendment
of its charter 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 to be
observed or performed by it hereunder, but will at all times in
good faith
assist in the carrying out of all the provisions of this Warrant
and in the
taking of all such action as may reasonably be requested by the
holder of this
Warrant in order to protect the exercise privilege of the holder of
this Warrant
against dilution or other impairment, consistent with the tenor and
purpose of
this Warrant. Without limiting the generality of the foregoing, the
Company (i)
will not increase the par value of any shares of Common Stock
receivable upon
the exercise of this Warrant above the Exercise Price then in
effect, and (ii)
will take all such actions 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.
(E) SUCCESSORS
AND ASSIGNS. This Warrant will be binding upon any
entity succeeding to the Company by merger, consolidation, or
acquisition of all
or substantially all the Company's assets.
4.
ANTIDILUTION PROVISIONS. During the Exercise Period, the
Exercise
Price and the number of Warrant Shares shall be subject to
adjustment from time
to time as provided in this Paragraph 4.
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In the
event that any adjustment of the Exercise Price as required
herein
results in a fraction of a cent, such Exercise Price shall be
rounded up to the
nearest cent.
(A) ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF SHARES UPON
ISSUANCE OF COMMON STOCK. Except as otherwise provided in
Paragraphs 4(c) and
4(e) hereof, if and whenever on or after the date of issuance of
this Warrant,
the Company issues or sells, or in accordance with Paragraph 4(b)
hereof is
deemed to have issued or sold, any shares of Common Stock for no
consideration
or for a consideration per share (before deduction of reasonable
expenses or
commissions or underwriting discounts or allowances in connection
therewith)
less than the Market Price on the date of issuance (a "Dilutive
Issuance"), then
immediately upon the Dilutive Issuance, the Exercise Price will be
reduced to a
price determined by multiplying the Exercise Price in effect
immediately prior
to the Dilutive Issuance by a fraction, (i) the numerator of which
is an amount
equal to the sum of (x) the number of shares of Common Stock
actually
outstanding immediately prior to the Dilutive Issuance, plus (y)
the quotient of
the aggregate consideration, calculated as set forth in Paragraph
4(b) hereof,
received by the Company upon such Dilutive Issuance divided by the
Market Price
in effect immediately prior to the Dilutive Issuance, and (ii) the
denominator
of which is the total number of shares of Common Stock Deemed
Outstanding (as
defined below) immediately after the Dilutive Issuance.
(B) EFFECT ON
EXERCISE PRICE OF CERTAIN EVENTS. For purposes of
determining the adjusted Exercise Price under Paragraph 4(a)
hereof, the
following will be applicable:
(I) ISSUANCE OF
RIGHTS OR OPTIONS. If the Company in any
manner issues or grants any warrants, rights or options, whether or
not
immediately exercisable, to subscribe for or to purchase Common
Stock or other
securities convertible into or exchangeable for Common Stock
("Convertible
Securities") (such warrants, rights and options to purchase Common
Stock or
Convertible Securities are hereinafter referred to as "Options")
and the price
per share for which Common Stock is issuable upon the exercise of
such Options
is less than the Market Price on the date of issuance or grant of
such Options,
then the maximum total number of shares of Common Stock issuable
upon the
exercise of all such Options will, as of the date of the issuance
or grant of
such Options, be deemed to be outstanding and to have been issued
and sold by
the Company for such price per share. For purposes of the preceding
sentence,
the "price per share for which Common Stock is issuable upon the
exercise of
such Options" is determined by dividing (i) the total amount, if
any, received
or receivable by the Company as consideration for the issuance or
granting of
all such Options, plus the minimum aggregate amount of additional
consideration,
if any, payable to the Company upon the exercise of all such
Options, plus, in
the case of Convertible Securities issuable upon the exercise of
such Options,
the minimum aggregate amount of additional consideration payable
upon the
conversion or exchange thereof at the time such Convertible
Securities first
become convertible or exchangeable, by (ii) the maximum total
number of shares
of Common Stock issuable upon the exercise of all such Options
(assuming full
conversion of Convertible Securities, if applicable). No further
adjustment to
the Exercise Price will be made upon the actual issuance of such
Common Stock
upon the exercise of such Options or upon the conversion or
exchange of
Convertible Securities issuable upon exercise of such Options.
(II) ISSUANCE OF
CONVERTIBLE SECURITIES. If the Company in
any manner issues or sells any Convertible Securities, whether or
not
immediately
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convertible (other than where the same are issuable upon the
exercise of
Options) and the price per share for which Common Stock is issuable
upon such
conversion or exchange is less than the Market Price on the date of
issuance,
then the maximum total number of shares of Common Stock issuable
upon the
conversion or exchange of all such Convertible Securities will, as
of the date
of the issuance of such Convertible Securities, be deemed to be
outstanding and
to have been issued and sold by the Company for such price per
share. For the
purposes of the preceding sentence, the "price per share for which
Common Stock
is issuable upon such conversion or exchange" is determined by
dividing (i) the
total amount, if any, received or receivable by the Company as
consideration for
the issuance or sale of all such Convertible Securities, plus the
minimum
aggregate amount of additional consideration, if any, payable to
the Company
upon the conversion or exchange thereof at the time such
Convertible Securities
first become convertible or exchangeable, by (ii) the maximum total
number of
shares of Common Stock issuable upon the conversion or exchange of
all such
Convertible Securities. No further adjustment to the Exercise Price
will be made
upon the actual issuance of such Common Stock upon conversion or
exchange of
such Convertible Securities.
(III) CHANGE IN OPTION PRICE OR CONVERSION RATE. If there is a
change at any time in (i) the amount of additional consideration
payable to the
Company upon the exercise of any Options; (ii) the amount of
additional
consideration, if any, payable to the Company upon the conversion
or exchange of
any Convertible Securities; or (iii) the rate at which any
Convertible
Securities are convertible into or exchangeable for Common Stock
(other than
under or by reason of provisions designed to protect against
dilution), the
Exercise Price in effect at the time of such change will be
readjusted to the
Exercise Price which would have been in effect at such time had
such Options or
Convertible Securities still outstanding provided for such changed
additional
consideration or changed conversion rate, as the case may be, at
the time
initially granted, issued or sold.
(IV) TREATMENT OF
EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. If, in any case, the total number of shares of Common
Stock issuable
upon exercise of any Option or upon conversion or exchange of any
Convertible
Securities is not, in fact, issued and the rights to exercise such
Option or to
convert or exchange such Convertible Securities shall have expired
or
terminated, the Exercise Price then in effect will be readjusted to
the Exercise
Price which would have been in effect at the time of such
expiration or
termination had such Option or Convertible Securities, to the
extent outstanding
immediately prior to such expiration or termination (other than in
respect of
the actual number of shares of Common Stock issued upon exercise or
conversion
thereof), never been issued.
(V) CALCULATION
OF CONSIDERATION RECEIVED. If any Common
Stock, Options or Convertible Securities are issued, granted or
sold for cash,
the consideration received therefor for purposes of this Warrant
will be the
amount received by the Company therefor, before deduction of
reasonable
commissions, underwriting discounts or allowances or other
reasonable expenses
paid or incurred by the Company in connection with such issuance,
grant or sale.
In case any Common Stock, Options or Convertible Securities are
issue
