THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS OTHERWISE
DESCRIBED BELOW.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AMENDED (THE
“1933 ACT”), OR ANY STATE SECURITIES LAWS. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF (I) SUCH REGISTRATION OR
(II) AN EXEMPTION THEREFROM AND, IF REQUESTED BY THE COMPANY, AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH REGISTRATION IS NOT REQUIRED.
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DAYSTAR TECHNOLOGIES, INC.
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VOID AFTER 5:00 P.M.
PST ON OCTOBER 2, 2011 Warrant to Purchase 1,666,667 Shares of
Common Stock Dated October 2, 2009
WARRANT FOR THE
PURCHASE OF SHARES OF COMMON STOCK
THIS CERTIFIES THAT, FOR VALUE RECEIVED , TD Waterhouse
RRSP Account 240832S, in trust for Peter Alan Lacey as beneficiary,
or its registered assign(s) (the “ Holder ”), is
entitled to purchase from Daystar Technologies, Inc., a Delaware
corporation (the “ Company ”), subject to the
terms and conditions set forth in this Warrant, up to 1,666,667
fully paid and nonassessable shares of common stock (“
Common Stock ”), of the Company, at any time
commencing on the date hereof (the “ Commencement Date
”) and expiring at 5:00 p.m. PST, on October 2, 2011 (the
“ Expiration Date ”). The price for each share
of Common Stock purchased hereunder (as adjusted as set forth
herein, collectively the “ Warrant Shares ”) is
$0.50 per share until expiration of this Warrant (as adjusted as
set forth herein, the “ Purchase Price ”).
The Holder agrees with the Company that this Warrant is issued,
and all the rights hereunder shall be held, subject to all of the
conditions, limitations and provisions set forth herein.
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1.
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EXERCISE OF WARRANT .
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A. MANNER OF EXERCISE . This Warrant
may be exercised in whole at any
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time, or in part from time to time, during the period commencing
on the Commencement Date and expiring on the Expiration Date or, if
any such day is a day on which banking institutions in
the City of San Francisco, California, are authorized by law to
close, then on the next succeeding day that shall not be such a
day, by presentation and surrender of this Warrant to the Company
at its principal office with the Purchase Form attached as Annex
I (the “ Purchase Form ”) duly executed and
accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the Purchase
Price for the number of shares specified in the Purchase Form and
instruments of transfer, if appropriate, duly executed by the
Holder or its duly authorized attorney.
B. STATUS AS HOLDER OF WARRANT
SHARES; TAXES; EXPIRATION . Upon receipt by the Company of this
Warrant, the duly executed Purchase Form and any other appropriate
instruments of transfer, together with the Purchase Price, at its
office, the Holder shall be deemed to be the holder of record of
the Warrant Shares issuable upon such exercise, notwithstanding
that the stock transfer books of the Company shall then be closed
or that certificates representing such Warrant Shares shall not
then be actually delivered to the Holder. The Company shall pay any
and all documentary stamp or similar issue taxes payable in respect
of the issue or delivery of Warrant Shares. This Warrant shall
become void, and all rights hereunder shall cease, at the close of
business on the Expiration Date. The Company in its sole discretion
may extend the duration of this Warrant by delaying the Expiration
Date.
C. ISSUANCE OF CERTIFICATES
. As soon as practicable after the exercise of all or any portion
of this Warrant, the Company shall, within three (3) Trading Days
(defined below), (i) issue to the Holder a certificate or
certificates for the number of full Warrant Shares to which the
Holder is entitled, or, at the Holder’s request, deliver such
Warrant Shares electronically if such means is otherwise presently
available to and utilized by the Company, registered in such name
or names as may be directed by the Holder, and (ii) if this Warrant
has not been exercised in full, issue to the Holder a new
countersigned warrant in substantially the same form for the
Warrant Shares as to which this Warrant shall not have been
exercised. This Warrant may not be exercised by, or securities
issued to, any Holder in any state in which such exercise would be
unlawful.
2. RESERVATION OF SHARES . The Company will at all times
reserve for issuance and delivery upon exercise of this Warrant all
Warrant Shares or other shares of capital stock of the Company (and
other securities and property) from time to time receivable upon
exercise of this Warrant. All such shares (and other securities and
property) shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and nonassessable and
free of all preemptive rights.
3. NO FRACTIONAL SHARES . No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. If the holder of this Warrant would be entitled, upon
the exercise of this Warrant, to receive a fractional interest in a
share, the Company shall, upon such exercise, purchase such
fractional interest, determined as follows:
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(a)
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If the Common Stock is listed on a national
securities exchange (which includes the Nasdaq Capital Market) or
admitted to unlisted trading privileges on such exchange or listed
for trading on the OTC Bulletin Board, the current value shall be
the last reported sale price of the Common Stock on such exchange
on the last business day prior to the date of exercise of this
Warrant or if no such sale is
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made on such day, the
average of the closing bid and asked prices for such day on such
exchange; or
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(b)
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If the Common Stock is not listed or admitted
to unlisted trading privileges, the current value shall be the mean
of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. on the last business day prior to the date
of the exercise of this Warrant; or
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(c)
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If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices
are not so reported, the current value shall be an amount
determined in such reasonable manner as may be prescribed by the
Board of Directors of the Company.
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4. STOCK DIVIDENDS; SPLIT-UPS . If after the issuance of
this Warrant, and subject to the provisions herein the number of
outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock or by a split-up of shares of
Common Stock or other similar event, then, on the effective day
thereof, the number of Warrant Shares shall be increased in
proportion to such increase in outstanding shares and the then
applicable Purchase Price shall be correspondingly decreased.
5. AGGREGATION OF SHARES . If after the date hereof, and
subject to the provisions herein, the number of outstanding shares
of Common Stock is decreased by a consolidation, combination,
reverse stock split, or reclassification of shares of Common Stock
or other similar event, then, after the effective date of such
consolidation, combination or reclassification, the number of
Warrant Shares shall be decreased in proportion to such decrease in
outstanding shares and the then applicable Purchase Price shall be
correspondingly increased.
6. REORGANIZATION, ETC . If after the date hereof any
capital reorganization or reclassification of the Common Stock, or
consolidation or merger of the Company with another corporation, or
the sale of all or substantially all of its assets to another
corporation or other similar event shall be effected, then, as a
condition of such reorganization, reclassification, consolidation,
merger or sale, lawful and fair provision shall be made whereby the
registered holders shall thereafter have the rig
