THIS WARRANT AND THE SHARES OF COMMON
STOCK USSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACTO 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 (A) AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR (B) AND EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS.
Right to Purchase Shares of Common Stock
of
STEN CORPORATION
(subject to adjustment as provided herein)
COMMON STOCK PURCHASE WARRANT
No. _____
Issue Date: May __, 2009
STEN CORPORATION, a corporation organized
under the laws of the State of Minnesota (the “
Company ”), hereby certifies that, for value received,
VALENS U.S. SPV I, LLC, or permitted transferees 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 Warrant and at any time or
from time to time before 5:00 p.m., New York time, through the
close of business October 31, 2013 (the “ Expiration
Date ”), up to the Specified Number (as hereinafter
defined) of fully paid and non-assessable 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.
As used herein the following terms,
unless the context otherwise requires, have the following
respective meanings:
(a)
“Common Stock
” means (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.
(b)
“ Company ” means STEN
Corporation and any person or entity which shall succeed, or assume
the obligations of, STEN Corporation hereunder.
(c)
“ Exercise Price ”
means a price of $0.01 per share.
(d)
“ Other Securities ”
means any stock (other than Common Stock), including, but not
limited to, the Closing Shares (as defined in the Security
Agreement) and other securities of the Company or any other person
(corporate or otherwise) which the Holder at any time shall be
entitled to receive, or shall have received, on the exercise of
this 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.
(e)
“ Security Agreement ”
means the Security Agreement dated as of the date hereof among the
Company, various Subsidiaries of the Company party thereto, the
Holder, the other Lenders (as defined therein) from time to time
party thereto and LV Administrative Services, Inc., as
administrative and collateral agent for the Lenders, as amended,
modified, restated and/or supplemented from time to
time.
(f)
“ Specified Number ”
means, on any date which the Company received an Exercise Notice
from the Holder, the greater of 1,349,952, and (y) the number of
shares of Common Stock computed using the following
formula:
(A x B) – C
where (i) “A” equals 0.5326,
(ii) “B” equals number of shares of Common Stock
outstanding on a Fully Diluted Basis on the date of exercise and
(iii) “C” equals the number of shares of Common Stock
previously issued to the Holder in connection with partial
exercises of this Warrant. Notwithstanding the foregoing, in
the event the Company consummates an initial public offering of the
Common Stock, from and after the closing of such initial public
offering, the Specified Number will be fixed at the number
calculated pursuant to the above formula immediately prior to the
closing of such initial public offering, as such number may be
adjusted from time to time pursuant to Section 4. As of the
date of this Warrant, this Warrant is exercisable for 1,349,952
Shares of Common Stock (the “Warrant Shares”). As
used in this Warrant, the term “Fully Diluted Basis”
means all outstanding shares of Common Stock plus all shares of
Common Stock issuable on conversion or exercise of securities
convertible into or exercisable for shares of Common Stock,
regardless whether any payment must be made pursuant to such
conversion or exercise or whether any conversion or exercise price
is above or below the market price of the shares of Common
Stock.
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 proper 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 ”) and
payment of the Exercise Price (either in cash or securities or on a
cashless basis) therefor, 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 National 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 this 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
acknowledge in writing its continuing obligation to afford to the
Holder any rights to which the 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 the 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 Holder
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
Company or 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 the Exercise Notice is received, 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 five (5) 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 the Holder (upon payment by the 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 non-assessable shares of Common
Stock (or Other Securities) to which the Holder shall be entitled
on such exercise, plus, in lieu of any fractional share to which
the 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 the Holder is entitled
upon such exercise pursuant to Section 1 or otherwise.
2.2
Exercise .
(a)
Payment may be made either (i) in cash by
wire transfer of immediately available funds or by certified or
official bank check payable to the order of the Company equal to
the applicable aggregate Exercise Price, (ii) by delivery of shares
of Common Stock and/or Common Stock issuable upon exercise of this
Warrant in accordance with the formula set forth in subsection (b)
below, or (iii) by a combination of any of the foregoing methods,
for the number of shares of Common Stock 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.
(b)
Notwithstanding any provisions herein to
the contrary, if the Fair Market Value of one share of Common Stock
is greater than the Exercise Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the
Holder may elect to receive shares equal to the value (as
determined below) of this Warrant (or the portion thereof being
exercised) by surrender of this Warrant at the principal office of
the Company together with the properly endorsed Exercise Notice in
which event the Company shall issue to the Holder a number of
shares of Common Stock computed using the following
formula:
|
X=
|
Y(A-B)
|
|
|
|
A
|
|
|
Where X =
|
the number of shares of Common Stock to be issued to the Holder
|
|
Y =
|
the number of shares of Common Stock purchasable under this Warrant
or, if only a portion of this Warrant is being exercised, the
portion of this Warrant being exercised (at the date of such
calculation)
|
|
A =
|
the Fair Market Value of one share of the Company’s Common
Stock (at the date of such calculation)
|
|
B =
|
the Exercise Price per share (as adjusted to the date of such
calculation)
|
|
|
|
|
3.
Effect of Reorganization, Etc.;
Adjustment of Exercise Price .
3.1
Reorganization, Consolidation, Merger,
Etc . If there occurs
any capital reorganization or any reclassification of the Common
Stock of the Company, the consolidation or merger of the Company
with or into another person (other than a merger or consolidation
of the Company in which the Company is the continuing entity and
which does not result in any reorganization or reclassification of
its outstanding Common Stock) or the sale or conveyance of all or
substantially all of the assets of the Company to another person,
then, as a condition precedent to any such reorganization,
reclassification, consolidation, merger, sale or conveyance, the
Holder will be entitled to receive upon surrender of this Warrant
to the Company (x) to the extent there are cash proceeds
distributed to holders of Common Stock following the consummation
of such reorganization, reclassification, consolidation,
me