NOVINT TECHNOLOGIES, INC.
FORM OF
COMMON STOCK PURCHASE WARRANT
| Warrant No.
________ |
_________
Warrants
|
VOID
AFTER 5:00 P.M. LOS ANGELES TIME
ON
___________, 2013
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “
SECURITIES ACT ”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY
LAWS.
Novint
Technologies, Inc. (the “
Company ”),
having its principal office as of the date hereof at 4601 Paradise
Blvd NW, Albuquerque, New Mexico, 87114 hereby certifies that, for
value received, _____________, or its registered assigns, is
entitled, subject to the terms and conditions set forth below, to
purchase from the Company at any time on or from time to time after
___________, 2008 (date that is the Original Issue Date), and
before 5:00 P.M., Los Angeles time, on ______________, 2013 (date
that is the fifth anniversary of the Original Issue Date) (the
“
Expiration Date ”),
__________ fully paid and non-assessable shares of Common Stock (as
defined below), at the initial Purchase Price per share (as defined
below) of $1.00. The number of such shares of Common Stock and the
Purchase Price per share are subject to adjustment as provided in
Section 5.
The
Company agreed to issue Warrants, including this Warrant, to
purchase up to a maximum of _________ shares of Common
Stock (subject to adjustment as provided in Section 5) in
connection with the Company's private placement of up to a
maximum aggregate of __________ unsecured convertible notes
(“
Notes ”)
and Warrants.
1.
Definitions .
As
used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
“
Aggregate Purchase Price ”
has the meaning set forth in Section 3.1.
“
Blue Sky Laws ”
means any state securities or “blue sky”
laws.
“
Board of Directors ”
means the board of directors of the Company.
“
Business Day ”
means any day other than Saturday, Sunday or any other day on which
commercial banks in The City of New York are authorized or required
by law to remain closed.
“
Buy-In ”
has the meaning set forth in Section 4.
“
Compan
y ”
includes the Company and any corporation which shall succeed to or
assume the obligations of the Company hereunder. The term
"corporation" shall include an association, joint stock company,
business trust, limited liability company or other similar
organization.
“
Common Stock ”
means the Company’s Common Stock, $.01 par value per share,
authorized as of the date hereof, and any stock of any class or
classes (however designated) hereafter authorized upon
reclassification thereof, which, if the Board of Directors declares
any dividends or distributions, has the right to participate in the
distribution of earnings and assets of the Company after the
payment of dividends or other distributions on any shares of
capital stock of the Company entitled to a preference and in the
voting for the election of directors of the Company.
“
Convertible Securities ”
means (i) options to purchase or rights to subscribe for Common
Stock, (ii) securities by their terms convertible into or
exchangeable for Common Stock or (iii) options to purchase or
rights to subscribe for such convertible or exchangeable
securities.
“
Delivery Date ”
has the meaning set forth in Section 4.
“
Exchange Act ”
means the Securities Exchange Act of 1934 as the same shall be in
effect at the time.
“
Holder ”
means any record owner of Warrants or Underlying
Securities.
“
Market Price ”
means, for one share of Common Stock at any date (i) if the
principal trading market for the Common Stock is an exchange, the
average of the closing sale prices per share for the last twenty
(20) previous trading days in which a sale was reported, as
officially reported on any consolidated tape, (ii) if the principal
market for such securities is the over-the-counter market, the
average of the closing sale prices per share on the last twenty
(20) previous trading days in which a sale was reported as set
forth by Nasdaq or, (iii) if the security is not listed on an
exchange or Nasdaq, the average of the closing sale prices per
share on the last twenty (20) previous trading days in which a sale
was reported as set forth in the National Quotation Bureau sheet
listing such securities for such days. Notwithstanding the
foregoing, if there is no reported closing sale price, as the case
may be, reported on any of the twenty (20) trading days preceding
the event requiring a determination of Market Price hereunder, then
the Market Price shall be the average of the high bid and asked
prices for the last ten previous trading days in which a sale was
reported; and if there is no reported high bid and asked prices, as
the case may be, reported on any of the ten trading days preceding
the event requiring a determination of Market Price hereunder, then
the Market Price shall be determined in good faith by resolution of
the Board of Directors. The Market Price of Other Securities, if
any, shall be determined in the same manner as Common
Stock.
“
Nasdaq ”
means the Nasdaq Global Market or Nasdaq Capital
Market.
“
Notice ”
has the meaning set forth in Section 21.
“
Original Issue Date ”
means ___________, 2008.
“
OTC ”
means the OTC Bulletin Board.
“
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 Holders of the Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Warrants,
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
5 or 6.
“
Person ”
means any individual, sole proprietorship, partnership,
corporation, limited liability company, business trust,
unincorporated association, joint stock corporation, trust, joint
venture or other entity, any university or similar institution, or
any government or any agency or instrumentality or political
subdivision thereof.
“
Purchase Price per share ”
means $1.00 per share, as may be adjusted from time to time in
accordance with Section 5 or 6.
“
Registered ”
and “
Registration ”
refer to a registration effected by filing a registration statement
in compliance with the Securities Act, to permit the disposition of
Underlying Securities issued or issuable upon the exercise of
Warrants, and any post-effective amendments and supplements filed
or required to be filed to permit any such
disposition.
“
Securities Act ”
means the Securities Act of 1933 as the same shall be in effect at
the time.
“
Subscriber ”
has the meaning set forth in the Subscription
Agreement.
“
Underlying Securities ”
means any Common Stock or Other Securities issued or issuable upon
exercise of Warrants.
“
Subscription Agreement ”
means the Subscription Agreement, dated as of ______________, 2008,
among the Company and the Subscribers.
“
Warrant ”
means, as applicable, (i) the Warrants dated as of the date hereof,
originally issued by the Company pursuant to the Subscription
Agreement, of which this Warrant is one, evidencing rights to
purchase up to a maximum of _________ shares of Common Stock, and
all Warrants issued upon transfer, division or combination of, or
in substitution for, any thereof (all Warrants shall at all times
be identical as to terms and conditions and date, except as to the
number of shares of Common Stock for which they may be exercised)
or (ii) each right as set forth in this Warrant to purchase one
share of Common Stock, as adjusted from time to time in accordance
with Section 5 or 6.
2.
Sale or Exercise Without Registration .
If, at the time of any exercise, transfer or surrender for exchange
of a Warrant or of Underlying Securities previously issued upon the
exercise of Warrants, such Warrant or Underlying Securities shall
not be registered under the Securities Act, the Company may
require, as a condition of allowing such exercise, transfer or
exchange, that the Holder or transferee of such Warrant or
Underlying Securities, as the case may be, furnish to the Company
an opinion of counsel, reasonably satisfactory to the Company, to
the effect that such exercise, transfer or exchange may be made
without registration under the Securities Act and without
registration or qualification under any applicable Blue Sky Laws;
provided that nothing contained in this Section 2 shall relieve the
Holder from its obligations under the Subscription
Agreement.
3.
Exercise of Warrant .
3.1.
Exercise in Full .
Subject to the provisions hereof, this Warrant may be exercised in
full by the Holder hereof by surrender of this Warrant, with the
form of subscription at the end hereof duly executed by such
Holder, to the Company at its principal office as set forth at the
head of this Warrant (or such other location as the Company from
time to time may advise the Holder in writing), accompanied by
payment, in cash or by certified or official bank check payable to
the order of the Company, in the amount obtained (the
“
Aggregate Purchase Price ”)
by multiplying (a) the number of shares of Common Stock then
issuable upon exercise of this Warrant by (b) the Purchase Price
per share on the date of such exercise.
3.2.
Partial Exercise .
Subject to the provisions hereof, this Warrant may be exercised in
part by surrender of this Warrant in the manner and at the place
provided in Section 3.1 except that the amount payable by the
Holder upon any partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by
the Holder in the subscription at the end hereof by (b) the
Purchase Price per share on the date of such exercise. Upon any
such partial exercise, the Company at its expense shall forthwith
issue and deliver to or upon the order of the Holder hereof a new
Warrant or Warrants of like tenor, in the name of the Holder hereof
or as such Holder (upon payment by such Holder of any applicable
transfer taxes and subject to the provisions of Section 2) may
request, calling in the aggregate on the face or faces thereof for
the number of shares of Common Stock equal to the number of such
shares issuable prior to such partial exercise of this Warrant
minus the number of such shares designated by the Holder in the
subscription at the end hereof.
3.3.
Company to Reaffirm Obligations .
The Company shall, at the time of any 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;
provided ,
however, that if the Holder of this Warrant shall fail to make any
such request, such failure shall not affect the continuing
obligation of the Company to afford such Holder any such
rights.
3.4.
Certain Exercises .
If an exercise of this Warrant is to be made in connection with a
registered public offering or sale of the Company, such exercise
may, at the election of the Holder, be conditioned on the
consummation of the public offering or sale of the Company, in
which case such exercise shall not be deemed effective until the
consummation of such transaction.
3.5.
Limited Net Issue Exercise .
At any time or from time to time, to the extent there is no
effective registration statement registering the resale of the
Underlying Securities by the Holder, this Warrant may also be
exercised at such time by means of a “
Net Issue Exercise ”
in which the Holder shall be entitled to receive Underlying
Securities equal to the value of this Warrant (or the portion
thereof being exercised by Net Issue Exercise) by surrender of this
Warrant to the Company together with notice of such Net Issue
Exercise, in which event the Company shall issue to Holder a number
of Underlying Securities computed as of the date of surrender of
this Warrant to the Company using the following
formula:
X
=
Y x (A-B)
A
Where:
| |
X
=
|
the
number of Underlying Securities to be issued to Holder pursuant to
this Section 3.5;
|
| |
Y
=
|
the
number of Underlying Securities otherwise purchasable under this
Warrant, or any lesser number of Underlying Securities as to which
this Warrant is being exercised (at the date of such
calculation);
|
| |
A
=
|
the
Market Price of one share of Common Stock (at the date of such
calculation);
|
| |
B
=
|
the
Purchase Price per share (as adjusted to the date of such
calculation).
|
4.
Delivery
of Stock Certificates, etc., on Exercise; Buy-In.
4.1.
Delivery of Certificates .
As soon as practicable after the exercise of this Warrant in full
or in part, and in any event within ten Business Days thereafter
(the “
Delivery Day ”),
the Company at its own expense (including the payment by it of any
applicable issue taxes) shall cause to be issued in the name of and
delivered to the Holder hereof, or as such Holder (upon payment by
such Holder of any applicable transfer taxes and subject to the
provisions of Section 2) may direct, a certificate or certificates
for the number of fully paid and non-assessable shares of Common
Stock or Other Securities to which such Holder shall be entitled
upon such exercise, plus, in lieu of any fractional share to which
such Holder would otherwise be entitled, cash equal to such
fraction multipli
