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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT THERETO UNDER THE ACT AND
APPLICABLE LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT AND APPLICABLE LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
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Certificate
No. WC-___
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Warrant
to Purchase ___________ Shares of
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Dated:
__________, 2008
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Common
Stock (subject to adjustment)
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WARRANT TO PURCHASE COMMON STOCK
of
SIONIX CORPORATION
This
certifies that, for value received, ______________, or
registered assigns (the “
Holder ”)
is entitled, subject to the terms set forth below, to purchase from
Sionix Corporation, a Nevada corporation (the “
Company ”),
up to ______________ shares of its common stock, $0.001 par value
(the “
Common Stock ”),
as constituted on the date hereof (the “
Warrant Issue Date ”),
upon surrender hereof, at the principal office of the Company
referred to below, with the Notice of Exercise form annexed hereto
duly executed, and simultaneous payment therefor in lawful money of
the United States or otherwise as hereinafter provided, at the
Exercise Price set forth in Section 2 below. The number and
character of such shares of Common Stock and the Exercise Price are
subject to adjustment as provided herein. The term
“Warrant” as used herein shall include this Warrant and
any warrants delivered in substitution or exchange therefor as
provided herein. This Warrant is being issued pursuant to the
Securities Purchase Agreement, dated the date hereof, by and
between the Company and the Holder, and in connection with the
corresponding Subscription Application of the Holder.
1.
Term of Warrant. Subject
to the terms and conditions set forth herein, this Warrant shall be
exercisable, in whole or in part, during the term commencing on the
Warrant Issue Date and ending at 5:00 p.m., Eastern Standard Time,
on the three (3) year anniversary of the Warrant Issue Date (the
“
Term ”),
and shall be void thereafter.
2.
Exercise Price. The
exercise price at which this Warrant may be exercised shall be
$0.10 per share of Common Stock (the “
Exercise Price ”),
as such Exercise Price may be adjusted from time to time pursuant
to Section 11 hereof.
3.
Exercise of Warrant .
(a)
Method of Exercise .
The purchase rights represented by this Warrant are exercisable by
the Holder in whole or in part, at any time, or from time to time,
during the Term, by the surrender of this Warrant and the Notice of
Exercise annexed hereto duly completed and executed on behalf of
the Holder, at the principal office of the Company (or such other
office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the
books of the Company), upon (i) payment (A) in cash or by check
acceptable to the Company, (B) by cancellation by the Holder of
indebtedness or other obligations of the Company to the Holder, or
(C) by a combination of (A) and (B), of the purchase price of the
shares to be purchased or (ii) a net issue exercise as provided in
Section 3(c) below.
(b)
Issuance of Shares .
This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated
for all purposes as the holder of record of such shares as of the
close of business on such date. As promptly as practicable on or
after such date and in any event within ten (10) days thereafter,
the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates
for the number of shares issuable upon such exercise. In the event
that this Warrant is exercised in part, the Company at its expense
will execute and deliver a new Warrant of like tenor exercisable
for the remaining number of shares for which this Warrant may then
be exercised.
(c)
Net Issue Exercise. 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 canceled) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed
Notice of Exercise and notice of such election, 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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X
=
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A
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Where
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X
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=
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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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=
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the
number of shares of Common Stock purchasable under this
Warrant or, if only a portion of this Warrant is being
exercised, the portion of this Warrant being canceled (at the
date of such calculation)
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A
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=
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the
fair market value of one share of the Common Stock (at the
date of such calculation)
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B
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=
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Exercise
Price (as adjusted to the date of such
calculation).
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For
purposes of the above calculation, fair market value of one
share of Common Stock shall be determined by the
Company’s Board of Directors in good faith; provided,
however, that where there exists a public market for the
Common Stock at the time of such exercise, the fair market
value of one share of Common Stock shall be the average of the
closing bid and asked prices of the Common Stock quoted on the
OTC Bulletin Board or the closing price of the Common Stock
quoted on the Nasdaq Capital Market or on any exchange on
which the Common Stock is listed, whichever is applicable, as
reported by Bloomberg L.P. for the five (5) trading days prior
to the date of determination of fair market
value.
4.
No Fractional Shares or Scrip. No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. In lieu of any fractional
share to which the Holder would otherwise be entitled (after
aggregating all shares that are being issued upon such exercise),
the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5.
Replacement of Warrant. On
receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and, in the
case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the
Company or, in the case of mutilation, on surrender and
cancellation of this Warrant, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like
tenor and amount.
6.
Rights of Stockholders. Subject
to Sections 9 and 11 of this Warrant, the Holder shall not be
entitled to vote or receive dividends or be deemed the holder of
the Common Stock or any other securities of the Company that may at
any time be issuable on the exercise hereof for any purpose, nor
shall anything contained herein be construed to confer upon the
Holder, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof or to give
or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value, or change of stock to no par value,
consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights
or otherwise until this Warrant shall have been exercised as
provided herein.
7.
Transfer of Warrant.
(a)
Warrant Register. The
Company will maintain a register (the “
Warrant Register ”)
containing the names and addresses of the Holder or Holders. Any
Holder of this Warrant or any portion thereof may change its
address as shown on the Warrant Register by written notice to the
Company requesting such change. Any notice or written communication
required or permitted to be given to the Holder may be delivered or
given by mail to such Holder as shown on the Warrant Register and
at the address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute
owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b)
Warrant Agent. The
Company may, by written notice to the Holder, appoint an agent for
the purpose of maintaining the Warrant Register referred to in
Section 7(a) above, issuing the Common Stock or other securities
then issuable upon the exercise of this Warrant, exchanging this
Warrant, replacing this Warrant, or any or all of the foregoing
(the “
Warrant Agent ”).
Thereafter, any such registration, issuance, exchange or
replacement, as the case may be, shall be made at the office of the
Warrant Agent.
(c)
Transferability and Negotiability of Warrant.
This
Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state securities
laws by the transferor and the transferee (including the delivery
of investment representation letters and legal opinions reasonably
satisfactory to the Company, if such are requested by the Company).
Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the
“
Act ”),
title to this Warrant may be transferred by endorsement (by the
Holder executing the Assignment Form annexed hereto) and delivery
in the same manner as a negotiable instrument transferable by
endorsement and delivery.
(d)
Exchange of Warrant Upon a Transfer. Upon
surrender of this Warrant for exchange, properly endorsed on the
Assignment Form and subject to the provisions of this Warrant with
respect to compliance with the Act and with the limitations on
assignments and transfers contained in this Section 7, the Company
at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as
the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable
upon
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