EXHIBIT 10.33
THIS WARRANT AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR VOYANT
INTERNATIONAL CORPORATION SHALL HAVE RECEIVED AN OPINION OF COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND
UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
VOYANT INTERNATIONAL
CORPORATION
Expires January 26, 2014
Date of Issuance: January 26,
2009
Number of Shares: 4,400,000
No.: SPW-052
FOR VALUE RECEIVED, subject to the
provisions hereinafter set forth, the undersigned, Voyant
International Corporation, a Nevada corporation (together with its
successors and assigns, the “ Issuer ”), hereby
certifies that White Star LLC or its registered assigns is entitled
to subscribe for and purchase, during the period specified in this
Warrant, up to Four Million Four Hundred Thousand (4,400,000)
shares (subject to adjustment as hereinafter provided) of the duly
authorized, validly issued, fully paid and non-assessable Common
Stock of the Issuer, at an exercise price per share equal to the
Warrant Price then in effect, subject, however, to the provisions
and upon the terms and conditions hereinafter set forth.
Capitalized terms used in this Warrant and not otherwise
defined herein shall have the respective meanings specified in
Section 9 hereof.
1.
Term . The right to subscribe for and purchase
shares of Warrant Stock represented hereby shall commence on
January 26, 2009 and shall expire at 5:00 p.m., eastern time, on
January 26, 2014 (such period being the “ Term
”).
2.
Method of Exercise Payment; Issuance
of New Warrant; Transfer and Exchange .
(a)
Time of Exercise
. The purchase rights represented
by this Warrant may be exercised in whole or in part at any time
and from time to time during the Term commencing on January 26,
2009.
(b)
Method of Exercise
. The Holder hereof may exercise
this Warrant, in whole or in part, by the surrender of this Warrant
(with the exercise form attached hereto duly executed) at the
principal office of the Issuer, and by the payment to the Issuer of
an amount of consideration therefor equal to the Warrant Price in
effect on the date of such exercise multiplied by the number of
shares of Warrant Stock with respect to which this Warrant is then
being exercised, payable at such Holder’s election (i) by
certified or official bank check or by wire transfer to an account
designated by the Issuer, (ii) by “cashless exercise”
in accordance with the provisions of subsection (c) of this Section
2, or (iii) by a combination of the foregoing methods of payment
selected by the Holder of this Warrant.
(c)
Cashless Exercise
. Notwithstanding any provisions
herein to the contrary and commencing six months following the
Original Issue Date, if the Per Share Market Value of one share of
Common Stock is greater than the Warrant Price (at the date of
calculation as set forth below), in lieu of exercising this Warrant
by payment of cash, the Holder may exercise this Warrant by a
cashless exercise and shall receive the number of shares of Common
Stock equal to an amount (as determined below) by surrender of this
Warrant at the principal office of the Issuer together with the
properly endorsed Notice of Exercise in which event the Issuer
shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
X = Y - (A)(Y)
B
Where
X =
the number of shares of Common Stock to
be issued to the Holder.
Y =
the number of shares of Common Stock
purchasable upon exercise of all of the Warrant or, if only a
portion of the Warrant is being exercised, the portion of the
Warrant being exercised.
A =
the Warrant Price.
B =
the Per Share Market Value of one share
of Common Stock.
(d)
Issuance of Stock
Certificates . In the
event of any exercise of the rights represented by this Warrant in
accordance with and subject to the terms and conditions hereof, (i)
certificates for the shares of Warrant Stock so purchased shall be
dated the date of such exercise and delivered to the Holder hereof
within a reasonable time, not exceeding three (3) Trading Days
after such exercise (the “ Delivery Date ”) or,
at the request of the Holder, issued and delivered to the
Depository Trust Company (“ DTC ”) account on
the Holder’s behalf via the Deposit Withdrawal Agent
Commission System (“ DWAC ”) within a reasonable
time, not exceeding three (3) Trading Days after such exercise, and
the Holder hereof shall be deemed for all purposes to be the Holder
of the shares of Warrant Stock so purchased as of the date of such
exercise and (ii) unless this Warrant has expired, a new Warrant
representing the number of shares of Warrant Stock, if any, with
respect to which this Warrant shall not then have been exercised
(less any amount thereof which shall have been canceled in payment
or partial payment of the Warrant Price as hereinabove provided)
shall also be issued to the Holder hereof at the Issuer’s
expense within such time.
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(e)
Transferability of Warrant
. Subject to Section 2(g), this
Warrant may be transferred by a Holder without the consent of the
Issuer. If transferred pursuant to this paragraph, this
Warrant may be transferred on the books of the Issuer by the Holder
hereof in person or by the Holder’s duly authorized attorney,
upon surrender of this Warrant at the principal office of the
Issuer, properly endorsed (by the Holder executing an assignment in
the form attached hereto) and upon payment of any necessary
transfer tax or other governmental charge imposed upon such
transfer. This Warrant is exchangeable at the principal
office of the Issuer for Warrants for the purchase of the same
aggregate number of shares of Warrant Stock, each new Warrant to
represent the right to purchase such number of shares of Warrant
Stock as the Holder hereof shall designate at the time of such
exchange. All Warrants issued on transfers or exchanges shall
be dated the Original Issue Date and shall be identical with this
Warrant except as to the number of shares of Warrant Stock issuable
pursuant thereto.
(f)
Continuing Rights of Holder
. The Issuer will, at the time of
or at any time after each exercise of this Warrant, upon the
request of the Holder hereof, acknowledge in writing the extent, if
any, of its continuing obligation to afford to such Holder all
rights to which such Holder shall continue to be entitled after
such exercise in accordance with the terms of this Warrant,
provided that if any such Holder shall fail to make any such
request, the failure shall not affect the continuing obligation of
the Issuer to afford such rights to such Holder.
(g)
Compliance with Securities
Laws.
(i)
The Holder of this Warrant, by acceptance
hereof, acknowledges that this Warrant and the shares of Warrant
Stock to be issued upon exercise hereof are being acquired solely
for the Holder’s own account and not as a nominee for any
other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any shares of
Warrant Stock to be issued upon exercise hereof except pursuant to
an effective registration statement, or an exemption from
registration, under the Securities Act and any applicable state
securities laws.
(ii)
Except as provided in paragraph (iii)
below, this Warrant and all certificates representing shares of
Warrant Stock issued upon exercise hereof shall be stamped or
imprinted with a legend in substantially the following
form:
THIS WARRANT AND THE SHARES OF COMMON
STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE
SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR VOYANT
INTERNATIONAL CORPORATION SHALL HAVE RECEIVED AN OPINION OF COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE
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SECURITIES ACT AND UNDER THE PROVISIONS
OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
(iii)
The restrictions imposed by this
subsection (g) upon the transfer of this Warrant or the shares of
Warrant Stock to be purchased upon exercise hereof shall terminate
(A) when such securities shall have been resold pursuant to an
effective registration statement under the Securities Act, (B) upon
the Issuer’s receipt of an opinion of counsel, in form and
substance reasonably satisfactory to the Issuer, addressed to the
Issuer to the effect that such restrictions are no longer required
to ensure compliance with the Securities Act and state securities
laws or (C) upon the Issuer’s receipt of other evidence
reasonably satisfactory to the Issuer that such registration and
qualification under the Securities Act and state securities laws
are not required. Whenever such restrictions shall cease and
terminate as to any such securities, the Holder thereof shall be
entitled to receive from the Issuer (or its transfer agent and
registrar), without expense (other than applicable transfer taxes,
if any), new Warrants (or, in the case of shares of Warrant Stock,
new stock certificates) of like tenor not bearing the applicable
legend required by paragraph (ii) above relating to the Securities
Act and state securities laws.
(iv)
The Issuer will provide, at the
Issuer’s expense, such legal opinions in the future as are
reasonably necessary for the issuance and resale of the Common
Stock issuable upon exercise of this Warrant pursuant to an
effective registration statement, Rule 144 or an exemption from
registration. In the event that Common Stock is sold in a
manner that complies with an exemption from registration, the
Issuer will promptly instruct its counsel (at its expense) to issue
to the transfer agent an opinion permitting removal of the legend
(indefinitely, if more than one year has elapsed from the Closing
Date, or to permit sale of the shares if pursuant to the other
provisions of Rule 144)..
(h)
Buy In.
In addition to any other rights available
to the Holder, if the Issuer fails to cause its transfer agent to
transmit to the Holder a certificate or certificates representing
the Warrant Stock pursuant to an exercise on or before the Delivery
Date, and if after such date the Holder is required by its broker
to purchase (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of
the Warrant Stock which the Holder anticipated receiving upon such
exercise (a “ Buy-In ”), then the Issuer shall
(1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (A) the number of
shares of Warrant Stock that the Issuer was required to deliver to
the Holder in connection with the exercise at issue times, (B) the
price at which the sell order giving rise to such purchase
obligation was executed, and (2) at the option of the Holder,
either reinstate the portion of the Warrant and equivalent number
of shares of Warrant Stock for which such exercise was not honored
or deliver to the Holder the number of shares of Common Stock that
would have been issued had the Issuer timely complied with its
exercise and delivery obligations hereunder. For example, if
the Holder purchases Common
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Stock having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted exercise of
shares of Common Stock with an aggregate sale price giving rise to
such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Issuer shall be required to pay
the Holder $1,000. The Holder shall provide the Issuer
written notice indicating the amounts payable to the Holder in
respect of the Buy-In, together with applicable confirmations and
other evidence reasonably requested by the Issuer. Nothing
herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or
injunctive relief with respect to the Issuer’s failure to
timely deliver certificates representing shares of Common Stock
upon exercise of this Warrant as required pursuant to the terms
hereof.
3.
Stock Fully Paid; Reservation and
Listing of Shares; Covenants .
(a)
Stock Fully Paid
. The Issuer represents, warrants,
covenants and agrees that all shares of Warrant Stock which may be
issued upon the exercise of this Warrant or otherwise hereunder
will, upon issuance, be duly authorized, validly issued, fully paid
and non-assessable and free from all taxes, liens and charges
created by or through Issuer. The Issuer further covenants
and agrees that during the period within which this Warrant may be
exercised, the Issuer will at all times have authorized and
reserved for the purpose of the issue upon exercise of this Warrant
a number of shares of Common Stock equal to at least 120% of the
aggregate number of shares of Common Stock exercisable hereunder to
provide for the exercise of this Warrant (without regard to
limitations on exercisability set forth in Section 8).
(b)
Reservation . If any shares of Common Stock required to be
reserved for issuance upon exercise of this Warrant or as otherwise
provided hereunder require registration or qualification with any
governmental authority under any federal or state law before such
shares may be so issued, the Issuer will in good faith use its best
efforts as expeditiously as possible at its expense to cause such
shares to be duly registered or qualified. If the Issuer
shall list any shares of Common Stock on any securities exchange or
market it will, at its expense, list thereon, maintain and increase
when necessary such listing, of, all shares of Warrant Stock from
time to time issued upon exercise of this Warrant or as otherwise
provided hereunder, and, to the extent permissible under the
applicable securities exchange’s rules, all unissued shares
of Warrant Stock which are at any time issuable hereunder, so long
as any shares of Common Stock shall be so listed. The Issuer
will also so list on each securities exchange or market, and will
maintain such listing of, any other securities which the Holder of
this Warrant shall be entitled to receive upon the exercise of this
Warrant if at the time any securities of the same class shall be
listed on such securities exchange or market by the
Issuer.
(c)
Covenants . The Issuer shall not by any action including,
without limitation, amending the Certificate of Incorporation or
the by-laws of the Issuer, or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities or any other action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of the Holder hereof
against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing,
the Issuer will (i) not permit the par value, if any, of
its
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Common Stock to exceed the then effective
Warrant Price, (ii) not amend or modify any provision of the
Certificate of Incorporation or by-laws of the Issuer in any manner
that would adversely affect the rights of the Holders of the
Warrants, (iii) take all such action as may be reasonably necessary
in order that the Issuer may validly and legally issue fully paid
and nonassessable shares of Common Stock, free and clear of any
liens, claims, encumbrances and restrictions (other than as
provided herein) upon the exercise of this Warrant, and (iv) use
its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction
thereof as may be reasonably necessary to enable the Issuer to
perform its obligations under this Warrant.
(d)
Loss, Theft, Destruction of
Warrants . Upon receipt
of evidence satisfactory to the Issuer of the ownership of and the
loss, theft, destruction or mutilation of any Warrant and, in the
case of any such loss, theft or destruction, upon receipt of
indemnity or security satisfactory to the Issuer or, in the case of
any such mutilation, upon surrender and cancellation of such
Warrant, the Issuer will make and deliver, in lieu of such lost,
stolen, destroyed or mutilated Warrant, a new Warrant of like tenor
and representing the right to purchase the same number of shares of
Common Stock.
4.
Adjustment of Warrant Price and
Warrant Share Number .
The number of shares of Common Stock for which this Warrant
is exercisable, and the price at which such shares may be purchased
upon exercise of this Warrant, shall be subject to adjustment from
time to time as set forth in this Section 4. The Issuer shall give
the Holder notice of any event described below which requires an
adjustment pursuant to this Section 4 in accordance with Section 5.
Notwithstanding any adjustment hereunder, at no time shall
the Warrant Price be greater than $0.075 per share, except if it is
adjusted pursuant to Section 4(b)(iii).
(a)
Recapitalization, Reorganization,
Reclassification, Consolidation, Merger or Sale
.
(i)
In case the Issuer after the Original
Issue Date shall do any of the following (each, a “
Triggering Event ”): (a) consolidate with or merge
into any other Person and the Issuer shall not be the continuing or
surviving corporation of such consolidation or merger, or (b)
permit any other Person to consolidate with or merge into the
Issuer and the Issuer shall be the continuing or surviving Person
but, in connection with such consolidation or merger, any Capital
Stock of the Issuer shall be changed into or exchanged for
Securities of any other Person or cash or any other property, or
(c) transfer all or substantially all of its properties or assets
to any other Person, or (d) effect a capital reorganization or
reclassification of its Capital Stock, then, and in the case of
each such Triggering Event, proper provision shall be made so that,
upon the basis and the terms and in the manner provided in this
Warrant, the Holder of this Warrant shall be entitled upon the
exercise hereof at any time after the consummation of such
Triggering Event, to the extent this Warrant is not exercised prior
to such Triggering Event, to receive at the Warrant Price in effect
at the time immediately prior to the consummation of such
Triggering Event in lieu of the Common Stock issuable upon such
exercise of this Warrant prior to such Triggering Event, the
Securities, cash and property to which such Holder would have been
entitled upon the consummation of such Triggering Event if such
Holder had exercised the rights represented by this Warrant
(without giving effect to
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the limitations on exercise set forth in
Section 8 hereof) immediately prior thereto (including the right to
elect the type of consideration, if applicable), subject to
adjustments (subsequent to such corporate action) as nearly
equivalent as possible to the adjustments provided for elsewhere in
this Section 4. Unless the surviving entity in any such
Triggering Event is a public company under the Securities Exchange
Act of 1934, the common equity securities of which are traded or
quoted on a national securities exchange or the OTC Bulletin Board
(a “ Qualifying Entity ”), the Holder, at its
option, shall be permitted to require that the Issuer pay to the
Holder an amount equal to the Black-Scholes value of this
Warrant.
(ii)
Notwithstanding anything contained in
this Warrant to the contrary and so long as the surviving entity is
a Qualifying Entity, the Issuer will not be deemed to have effected
any Triggering Event if, prior to the consummation thereof,
each Person (other than the Issuer) which may be required to
deliver any Securities, cash or property upon the exercise of this
Warrant as provided herein shall assume, by written instrument
delivered to the Holder of this Warrant and reasonably satisfactory
to the Holder, (A) the obligations of the Issuer under this Warrant
(and if the Issuer shall survive the consummation of such
Triggering Event, such assumption shall be in addition to, and
shall not release the Issuer from, any continuing obligations of
the Issuer under this Warrant) and (B) the obligation to deliver to
such Holder such shares of Securities, cash or property as, in
accordance with the foregoing provisions of this subsection (a),
such Holder shall be entitled to receive, and such Person shall
have similarly delivered to such Holder, an opinion of counsel for
such Person, which shall be reasonably satisfactory to the Holder,
stating that this Warrant shall thereafter continue in full force
and effect and the terms hereof (including, without limitation, all
of the provisions of this subsection (a)) shall be applicable to
the Securities, cash or property which such Person may be required
to deliver upon any exercise of this Warrant or the exercise of any
rights pursuant hereto.
(b)
Stock Dividends, Subdivisions and
Combinations . If at any
time the Issuer shall:
(i)
set a record date or take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend payable in, or other distribution of, shares of
Common Stock,
(ii)
subdivide its outstanding shares of
Common Stock into a larger number of shares of Common Stock,
or
(iii)
combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
then (1) the number of shares of Common
Stock for which this Warrant is exercisable immediately after the
occurrence of any such event shall be adjusted to equal the number
of shares of Common Stock which a record holder of the same number
of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be
entitled to receive after the happening of such event (without
giving effect to the limitations on exercise set forth in Section 8
hereof), and (2) the Warrant Price then in effect
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shall be adjusted to equal (A) the
Warrant Price then in effect multiplied by the number of shares of
Common Stock for which this Warrant is exercisable immediately
prior to the adjustment (without giving effect to the limitations
on exercise set forth in Section 8 hereof) divided by (B) the
number of shares of Common Stock for which this Warrant is
exercisable immediately after such adjustment (without giving
effect to the limitations on exercise set forth in Section 8
hereof).
(c)
Certain Other Distributions
. If at any time the Issuer shall
set a record date or take a record of the holders of its Common
Stock for the purpose of entitling them to receive any
dividend or other distribution of:
(i)
cash (other than a cash dividend payable
out of earnings or earned surplus legally available for the payment
of dividends under the laws of the jurisdiction of incorporation of
the Issuer),
(ii)
any evidences of its indebtedness, any
shares of stock of any class or any other securities or property of
any nature whatsoever (other than cash, Common Stock Equivalents,
Additional Shares of Common Stock or Permitted Issuances),
or
(iii)
any warrants or other rights to subscribe
for or purchase any evidences of its indebtedness, any shares of
stock of any class or any other securities or property of any
nature whatsoever (other than cash, Common Stock Equivalents,
Additional Shares of Common Stock or Permitted
Issuances),
then (1) the number of shares of Common
Stock for which this Warrant is exercisable shall be adjusted to
equal the product of the number of shares of Common Stock for which
this Warrant is exercisable immediately prior to such adjustment
(without giving effect to the limitations on exercise set forth in
Section 8 hereof) multiplied by a fraction (A) the numerator of
which shall be the Per Share Market Value of Common Stock at the
date of taking such record and (B) the denominator of which shall
be such Per Share Market Value minus the amount allocable to one
share of Common Stock of any such cash so distributable and of the
fair value (as determined in good faith by the Board of Directors
of the Issuer and supported by an opinion from an investment
banking firm reasonably acceptable to the Holder) of any and all
such evidences of indebtedness, shares of stock, other securities
or property or warrants or other subscription or purchase rights so
distributable, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied
by the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to the adjustment (without giving
effect to the limitations on exercise set forth in Section 8
hereof) divided by (B) the number of shares of Common Stock for
which this Warrant is exercisable immediately after such adjustment
(without giving effect to the limitations on exercise set forth in
Section 8 hereof). A reclassification of the Common Stock
(other than a change in par value, or from par value to no par
value or from no par value to par value) into shares of Common
Stock and shares of any other class of stock shall be deemed a
distribution by the Issuer to the holders of its Common Stock of
such shares of such other class of stock within the meaning of this
Section 4(c) and, if the outstanding shares of Common Stock shall
be changed into a larger or smaller number of shares of Common
Stock as a part of such reclassification, such change shall be
deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of Section
4(b).
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(d)
Issuance of Additional Shares of
Common Stock .
(i)
In the event the Issuer shall at any time
following the Original Issue Date issue any Additional Shares of
Common Stock (otherwise than as provided in the foregoing
subsections (a) through (c) of this Section 4), at a price per
share less than the Warrant Price then in effect or without
consideration, then the Warrant Price upon each such issuance shall
be adjusted to the price equal to the consideration per share paid
for such Additional Shares of Common Stock.
(ii)
No adjustment of the Warrant Price shall
be made under paragraph (i) of Section 4(d) upon the issuance
of any Additional Shares of Common Stock which are issued pursuant
to the exercise or conversion of any Common Stock Equivalents if
any such adjustment shall previously have been fully made upon the
issuance of such Common Stock Equivalents, or upon the issuance of
any warrant or other rights therefor pursuant to Sections 4(e) or
4(f), or in connection with any Permitted Issuances.
(e)
Issuance of Warrants or Other
Rights . If at any time
the Issuer shall take a record of the Holders of its Common Stock
for the purpose of entitling them to receive a distribution of, or
shall in any manner (whether directly or by assumption in a
me
