Exhibit 10.28
EXECUTION COPY
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, HYPOTHECATED OR OTHERWISE
TRANSFERRED 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
180 CONNECT INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
Right
to Purchase 450,000 Shares of Common Stock of
180 Connect Inc.
(subject to adjustment as provided herein)
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
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Issue Date: as of July 2,
2007 |
180 Connect Inc., a Delaware
corporation (“ 180 Connect ”), hereby certifies
that, for value received, CREATIVE VISTAS, INC. 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, on July 2,
2012 (the “ Expiration Date ”), up to 450,000
fully paid and nonassessable shares of Common Stock (as hereinafter
defined), at the applicable Exercise Price (as defined below) per
share. The number and character of such shares of Common Stock and
the applicable Exercise Price per share are subject to adjustment
as provided herein. The Company (as defined herein) will have no
obligation to pay the Holder any cash or other consideration or
otherwise “net cash settle” the Warrant. Accordingly,
the Warrant may expire or be redeemed unexercised and may be
deprived of any value.
As used herein the following terms,
unless the context otherwise requires, have the following
respective meanings:
(a) The term “Company”
shall include 180 Connect and any corporation which shall succeed,
or assume the obligations of, 180 Connect hereunder.
(b) The term “Common
Stock” includes (i) the issued and outstanding common
shares in the capital of the Company 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.
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(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 a price of US$0.01 per
share.
(e) The term “Purchase
Agreement” means that certain Security and Purchase Agreement
dated as of July 31, 2006 between 180 Connect Inc., Mountain
Center, Inc., JJ&V Communications, Inc., Tumbleweed HS Inc.,
Piedmont Telecommunications, Inc., 180 Digital Interiors, Inc., HD
Complete, Inc., Ironwood Communications Inc., and Queens Cable
Contractors, Inc. and the Holder, as such may be amended,
supplemented, modified or restated from time to time.
(f) The term “Exchange
Rate” means, in relation to any amount of currency to be
converted into US dollars pursuant to this Warrant, the US dollar
exchange rate as published in the Wall Street Journal from time to
time.
All other defined terms have the
meaning attributed to them in the Purchase Agreement.
All amounts owing under this Warrant,
the Purchase Agreement or any related agreement shall be paid in US
dollars. All amounts denominated in other currencies shall be
converted in the US dollar equivalent amount in accordance with the
Exchange Rate on the relevant date of calculation.
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 a stock exchange, then the volume weighted
average of the closing or last sale price reported for the twenty
(20) trading days immediately preceding the Determination
Date.
(b) If the Company’s Common
Stock is not traded on a stock exchange but is quoted on the NASD
OTC Bulletin Board, then the mean of (i) the average of the
closing bid price and (ii) the average of the closing ask
price, in each case reported for the twenty (20) trading days
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.
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(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 the 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 Limitation on Sale of Common
Stock. Holder shall not on or before July 2, 2008 sell any
of the Common Stock issuable upon exercise of this Warrant.
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 owner of record
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)
shall instruct its transfer agent for the Common Stock to issue in
the name of and deliver 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 non-assessable shares of Common Stock (or Other Securities) to
which such Holder shall be entitled on such exercise bearing a
legend substantially in the form of the legend set forth on the
first page of this Warrant, 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 may be
made either (i) in cash or by certified or official bank
cheque payable to the order of the Company equal to the applicable
aggregate Exercise Price, (ii) by surrender of all or a portion of
this Warrant in accordance with the formula set forth below in this
Section 2.2, or (iii) by a combination of any of the
foregoing methods, 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 in accordance with the terms of this
Warrant) and the Holder shall thereupon be entitled to
receive
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the
number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock (or Other Securities)
determined as provided herein. 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:
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Where X =
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the number of shares of Common Stock
to be issued to the Holder |
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Y =
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the number of shares of Common Stock
purchasable under the Warrant or, if only a portion of the Warrant
is being exercised, the portion of the Warrant being exercised (at
the date of such calculation) |
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A =
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the Fair Market Value of one share of
the Company’s Common Stock (at the date of such
calculation) |
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B =
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Exercise Price (as adjusted to the
date of such calculation) |
3.
Effect of Reorganization, Etc.; Adjustment of Exercise
Price.
3.1 Reorganization, Consolidation,
Merger, Etc . In case at any time or from
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