Exhibit 4.3
THIS WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) NOR UNDER
ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR
OTHERWISE TRANSFERRED EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN
EXEMPTION THEREFROM.
WARRANT TO PURCHASE COMMON
STOCK
OF
FNDS3000 CORP.
This is to Certify That, FOR VALUE
RECEIVED, Sherington Holdings, LLC or its assigns (collectively,
“ Holder ”), is entitled to purchase, any time
and from time to time during the Exercise Period (as defined in
Section (a) below) and subject to the provisions of this
Warrant, from FNDS3000 Corp., a Delaware corporation (the “
Company ”), Two Million Eight Hundred Fifty Seven
Thousand One Hundred Forty Three (2,857,143) fully paid,
validly issued and nonassessable shares of Common Stock of the
Company (the “ Common Stock ”) at a price equal
to twenty cents ($0.20) per share, which price from time to time
may be adjusted in accordance herewith. The number of shares of
Common Stock to be received upon exercise of this Warrant and the
price to be paid for each share of Common Stock may be adjusted
from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon any exercise, and as adjusted from time to
time, are hereinafter sometimes referred to as “ Warrant
Shares ” and the exercise price of a share of Common
Stock in effect at any time and as adjusted from time to time is
hereinafter sometimes referred to as the “ Exercise
Price ”.
(a) EXERCISE OF WARRANT. This
Warrant may be exercised in whole or in part at any time and from
time to time beginning on July 1, 2009 (the “ Issue
Date ”) through July 1, 2011 (the “
Exercise Period ”; provided, however, that if at any
time the average closing price for shares of the Company’s
common stock on the OTC-Bulletin Board in the United States exceeds
U.S. $1.00 for a period of ten (10) consecutive trading days
or more, the Company shall have the right, upon written notice to
the Holder , to reduce the exercise period of the Warrants to a
period of thirty (30) days beginning on the date of the
written notice. Notwithstanding the foregoing, the Company shall
not give such notice to the Holder unless the Company will be in a
position, upon receipt from the Holder of the exercise price and
any other documentation necessary to the exercise of the Warrants,
to issue the Shares underlying the Warrant. This Warrant may be
exercised, in whole or in part, by written notice of such exercise
(each, an “ Exercise Notice ”) to the Company at
its principal office with the Purchase Form annexed hereto duly
executed and accompanied by payment of the Exercise Price for the
number of Warrant Shares specified in such form. As soon as
practicable after each such exercise of the warrants, the Company
shall issue and deliver to the Holder a certificate or certificates
for the Warrant Shares issuable upon such exercise, registered in
the name of the Holder or its designee. Upon receipt by the Company
of an Exercise Notice and the appropriate aggregate Exercise Price
for the applicable amount of Common Stock at its office in proper
form for exercise, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of
Common Stock shall not then be physically delivered to the Holder.
On or before the first business day following the date on which the
Company has received the Exercise Notice and the Exercise Price,
the Company shall transmit by facsimile to Holder (i) an
acknowledgment of confirmation of receipt of the
Exercise Notice and (ii) a capitalization
table showing in detail the names, addresses, ownership, voting or
other interests of all outstanding equity securities of the Company
and instruments convertible into Common Stock and any other equity
securities of the Company, and the calculation of the number of
Warrant Shares to be issued pursuant to this Warrant.
(b) RESERVATION OF SHARES. The
Company covenants and agrees that all shares of Common Stock which
may be issued upon exercise of this Warrant will, upon issuance, be
duly authorized and validly issued, fully paid and nonassessable,
and no personal liability will attach to the holder thereof. The
Company shall at all times reserve solely for issuance and/or
delivery upon exercise of this Warrant such number of shares of its
Common Stock as shall be required for issuance and delivery upon
exercise of this Warrant; and if at any time the number of
authorized but unissued shares of Common Stock shall be
insufficient to effect the issuance of the Warrant Shares, the
Company shall take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be
sufficient for such purpose.
(c) FRACTIONAL SHARES. No fractional
shares or script representing fractional shares shall be issued
upon the exercise of this Warrant, but rather the number of shares
of Common Stock to be issued shall be rounded up to the nearest
whole number.
(d) EXCHANGE, TRANSFER, ASSIGNMENT
OR LOSS OF WARRANT. This Warrant is assignable and is exchangeable,
without expense, at the option of the Holder, upon presentation and
surrender hereof to the Company for other warrants of different
denominations entitling the holders thereof to purchase in the
aggregate the same number of shares of Common Stock purchasable
hereunder. Upon surrender of this Warrant to the Company at its
principal office, with the Assignment Form annexed hereto duly
executed, the Company shall, without charge, execute and deliver a
new Warrant or Warrants in the name of the assignee(s) named in
such instrument of assignment and this Warrant shall promptly be
canceled. This Warrant may be divided or combined with other
warrants which carry the same rights upon presentation hereof at
the principal office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to
be issued and signed by the Holder hereof. The term “
Warrant ” as used herein includes any Warrants into
which this Warrant may be divided or exchanged. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) receipt by the Company of
indemnification reasonably satisfactory to it, and upon surrender
and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date. Any such
new Warrant executed and delivered shall constitute an additional
contractual obligation on the part of the Company, whether or not
this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder
shall not, by virtue hereof, be entitled to any rights of a
stockholder in the Company in excess of those already vested in
Holder as of the date hereof, either at law or equity.
(f) ANTI-DILUTION PROVISIONS. The
number of shares of Common Stock purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time
thereafter upon the happening of certain events as
follows:
(i) Dividends, Splits,
Combinations, Reclassifications . In the event the Company
shall hereafter (A) pay a stock dividend or make a stock
distribution of shares of Common Stock with respect to the Common
Stock, (B) subdivide its outstanding Common Stock into a
greater amount of Common Stock, (C) combine its outstanding
Common Stock into a smaller amount of Common Stock, or
(D) issue by reclassification of its Common Stock any other
security of the Company, the Exercise Price in effect immediately
prior to such action shall be adjusted so that Holder shall be
entitled to receive the
amount of Common Stock or other capital stock of
the Company it would have owned immediately following such action
had this Warrant or any remaining portion hereof been converted in
full immediately prior thereto. All adjustments made pursuant to
this Section (f)(i) shall become effective immediately after the
record date in the case of a dividend or distribution and shall
become effective immediately after the effective date in the case
of a subdivision, combination or reclassification. If, as a result
of an adjustment made pursuant to this Section (f)(i), Holder shall
become entitled to receive the Warrant Shares and other securities
of the Company, the Board of Directors of the Company shall
reasonably determine the allocation of the adjusted Exercise Price
between or among the Warrant Shares and such other securities. If
the amount of any single adjustment of the Exercise Price required
pursuant to this Section (f)(i) would be less than one cent ($.01)
at the time such adjustment is otherwise so required to be made,
such amount shall be carried forward and adjustment with respect
thereto made at the time of and together with any subsequent
adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate at least one cent
($.01) when the Exercise Price is subsequently adjusted.
(ii) Sale of Shares of Common
Stock Below Exercise Price . If at any time or from time to
time after the date this Warrant is issued, the Company issues or
sells, or is deemed by the express provisions of this Section
(f)(ii) to have issued or sold, Additional Shares of Common Stock
(as hereinafter defined), other than as a dividend or other
distribution on any class of stock as provided in Section (f)(i)
above, and other than a subdivision or combination of shares of
Common Stock as provided in Section (f)(i) above, for an Effective
Price (as hereinafter defined) less than the Exercise Price
(subject to adjustment for any events after the Issue Date
described in Section (f)(i), then the then existing Exercise Price
shall be reduced, as of the opening of business on the date of such
issue or sale, to a price equal to the Effective Price.
(A) Determination of
Consideration . For the purpose of making any adjustment
required under this Section (f)(ii), the consideration received by
the Company for any issue or sale of securities shall (1) to
the extent it consists of cash, be the amount of cash received by
the Company therefor before deducting any discounts, commissions or
other expenses allowed, paid or incurred by the Company for any
underwriting or otherwise in connection thereof, (2) to the
extent it consists of property other than cash, be computed at the
fair value of that property as determined in good faith by the
Board of Directors, and (3) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or
options to purchase either Additional Shares of Common Stock or
Convertible Securities are issued or sold together with other stock
or securities or other assets of the Company for a consideration
which covers both, be computed as the portion of the consideration
so received that may be reasonably determined in good faith by the
Board of Directors to be allocable to such Additional Shares of
Common Stock, Convertible Securities or rights or
options.
(B) Treatment of Convertible
Securities . For the purpose of the adjustment required under
this Section (f)(ii), if the Company issues or sells any rights or
options for the purchase of, or stock or other securities
convertible into, Additional Shares of Common Stock (such
convertible stock
