Exhibit 10.6
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.
Warrant No. CSW-1001
DAYSTAR TECHNOLOGIES,
INC.
VOID AFTER 5:00 P.M. PST ON
SEPTEMBER 21, 2011
Warrant to Purchase 1,500,000 Shares
of Common Stock Dated September 21,
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 1,500,000
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 September 21, 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.
1. EXERCISE OF
WARRANT.
A. MANNER OF EXERCISE . This
Warrant may be exercised in whole at any 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
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 right to purchase and receive,
upon the basis and upon the terms and conditions specified in this
Warrant and in lieu of the securities of the Company immediately
theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange
for the number of outstanding shares of such Common Stock equal to
the number of shares of Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights
represented by this Warrant, had such reorganiza