|
EXHIBIT
10.2
THE
SECURITIES REPRESENTED BY THIS WARRANT WERE ISSUED IN AN
OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS
DEFINED IN REGULATION S PROMULGATED PURSUANT TO THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") PURSUANT TO REGULATION S.
ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE ACT, OR ANY U.S. STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF (I) EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF REGULATION S, (II) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (III)
PURSUANT TO AN EXEMPTION WHICH IS CONFIRMED IN AN OPINION OF
COMPANY COUNSEL. IN ADDITION, HEDGING TRANSACTIONS INVOLVING
THE SECURITIES REPRESENTED BY THIS WARRANT MAY NOT BE
CONDUCTED UNLESS IN ACCORDANCE WITH THE ACT.
THIS
WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S.
PERSON UNLESS REGISTERED UNDER THE ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
THIS
WARRANT SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME (U.S.) ON
THE EXPIRATION DATE (AS DEFINED HEREIN).
No.
__________
TRACEGUARD TECHNOLOGIES, INC.
WARRANT TO PURCHASE _______ SHARES OF
COMMON STOCK, PAR VALUE $0.001 PER SHARE
For
VALUE RECEIVED, ______ (“Warrantholder”), is
entitled to purchase, subject to the provisions of this
Warrant, from TraceGuard Technologies, Inc., a Nevada
corporation (“Company”), at any time not later
than 5:00 p.m., Eastern time (U.S.), on June __, 2011 (the
“Expiration Date”), at an exercise price per share
equal to $0.80 (the exercise price in effect being herein
called the “Warrant Price”), ______ shares
(“Warrant Shares”) of the Company’s common
stock, par value $0.001 per share (“Common
Stock”). The number of Warrant Shares purchasable upon
exercise of this Warrant and the Warrant Price shall be
subject to adjustment from time to time as described
herein.
Section
1
.
Transfers .
As provided herein, this Warrant may be transferred only pursuant
to (i) an effective registration statement filed under the
Securities Act of 1933, as amended (the “Securities
Act”), (ii) an exemption from such registration, or (iii) the
provisions of Regulation S promulgated under the Securities Act.
Subject to such restrictions, the Company shall transfer this
Warrant from time to time upon the books to be maintained by the
Company for that purpose, upon surrender thereof for transfer
properly endorsed or accompanied by appropriate instructions for
transfer and such other documents as may be reasonably required by
the Company, including, if required by the Company, an opinion of
its counsel to the effect that such transfer is exempt from the
registration requirements of the Securities Act, to establish that
such transfer is being made in accordance with the terms hereof,
and a new Warrant shall be issued to the transferee and the
surrendered Warrant shall be canceled by the Company.
Section
2.
Exercise of Warrant .
(a)
Subject
to the provisions hereof, the Warrantholder may exercise this
Warrant in whole or in part at any time prior to its
expiration upon surrender of the Warrant, together with
delivery of the duly executed Warrant exercise form attached
hereto as Appendix A (the “Exercise Agreement”)
and payment by cash, certified check or wire transfer of funds
for the aggregate Warrant Price for that number of Warrant
Shares then being purchased, to the Company during normal
business hours on any business day at the Company’s
principal executive offices outside the United States (or such
other office or agency of the Company as it may designate by
notice to the Warrantholder). The Warrant Shares so purchased
shall be deemed to be issued to the Warrantholder or the
Warrantholder’s designee, as the record owner of such
shares, as of the close of business on the date on which this
Warrant shall have been surrendered (or evidence of loss,
theft or destruction thereof and security or indemnity
satisfactory to the Company), the Warrant Price shall have
been paid and the completed Exercise Agreement shall have been
delivered. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares specified in the
Exercise Agreement, shall be delivered to the Warrantholder
within a reasonable time, not exceeding ten (10) business
days, after this Warrant shall have been so exercised. The
certificates so delivered shall be in such denominations as
may be requested by the Warrantholder and shall be registered
in the name of the Warrantholder or such other name as shall
be designated by the Warrantholder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has
expired, the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the Warrantholder a
new Warrant representing the number of shares with respect to
which this Warrant shall not then have been exercised. As used
herein, “business day” means a day, other than a
Saturday or Sunday, on which banks in New York City are open
for the general transaction of business. Upon exercise, the
Warrantholder will be required to make the representations and
warranties contained in the Exercise Agreement.
(b)
Notwithstanding
anything herein to the contrary, this Warrant may be exercised
in whole or in part at any time prior to the Expiration Date
by means of a “cashless exercise” in which the
Warrantholder shall be entitled to receive a certificate for
the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (C)] by (A), where:
(A)
= the VWAP on the business day immediately preceding the date
of such election;
(B)
= the Warrant Price of this Warrant, as adjusted;
and
(C)
= the number of Warrant Shares issuable upon exercise of this
Warrant in accordance with the terms of this Warrant by means
of a cash exercise rather than a cashless
exercise.
For
purposes hereof, “VWAP” means, for any business
day, the volume weighted average price of the Common Stock for
the nearest preceding business day on the OTC BB or other
principal exchange or market on which the Common Stock trades
as reported by Bloomberg Financial L.P. (based on a trading
day from 9:30 A.M. to 4:02 P.M. Eastern Time (US). In
connection with a cashless exercise of this Warrant, the
Warrantholder shall deliver a duly executed Exercise Agreement
and this Warrant. The Company’s delivery of shares of
Common Stock and, if applicable, the delivery of a replacement
Warrant shall conform to the requirements set forth in Section
2(a) herein.
Section
3.
Compliance with the Securities Act of 1933 .
The Company may cause the legend set forth on the first page of
this Warrant to be set forth on each Warrant or similar legend on
any security issued or issuable upon exercise of this Warrant,
unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section
4.
Payment of Taxes .
The Company will pay any documentary stamp taxes attributable to
the initial issuance of Warrant Shares issuable upon the exercise
of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issuance or delivery of any
certificates for Warrant Shares in a name other than that of the
Warrantholder in respect of which such shares are issued, and in
such case, the Company shall not be required to issue or deliver
any certificate for Warrant Shares or any Warrant until the person
requesting the same has paid to the Company the amount of such tax
or has established to the Company’s reasonable satisfaction
that such tax has been paid. The Warrantholder shall be responsible
for income taxes due under federal, state or other law, if any such
tax is due.
Section
5.
Mutilated or Missing Warrants .
In case this Warrant shall be mutilated, lost, stolen, or
destroyed, the Company shall issue in exchange and substitution of
and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and for the purchase of a like number of
Warrant Shares, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction of
the Warrant, and with respect to a lost, stolen or destroyed
Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section
6.
Reservation of Common Stock .
The Company hereby represents and warrants that there have been
reserved, and the Company shall at all applicable times keep
reserved until issued (if necessary) as contemplated by this
Section 7, out of the authorized and unissued shares of Common
Stock, sufficient shares to provide for the exercise of the rights
of purchase represented by this Warrant. The Company agrees that
all Warrant Shares issued upon due exercise of the Warrant shall
be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock of the Company.
Section
7.
Adjustments .
Subject and pursuant to the provisions of this Section 7, the
Warrant Price and number of Warrant Shares subject to this Warrant
shall be subject to adjustment from time to time as set forth
hereinafter.
(a)
If
the Company shall, at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution
on its Common Stock in shares of Common Stock, subdivide its
outstanding shares of Common Stock into a greater number of
shares or combine its outstanding shares of Common Stock into
a smaller number of shares, then the number of Warrant Shares
purchasable upon exercise of the Warrant immediately prior to
the date upon which such change shall become effective, shall
be adjusted by the Company so that the Warrantholder
thereafter exercising the Warrant shall be entitled to receive
the number of shares of Common Stock which, if the Warrant had
been exercised immediately prior to such event, (i) the
Warrantholder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, distribution
or subdivision, or (ii) in the case of a combination, such
number of shares into which the number of shares the
Warrantholder would have owned upon such exercise would have
been reduced to as a result of such combination. Whenever the
number of shares of Common Stock purchasable upon exercise of
this Warrant is adjusted as provided in this Section 7(a),
then the Warrant Price shall also be adjusted by multiplying
the Warrant Price in effect immediately prior to such
adjustment, by a fraction, the numerator of which shall equal
to the number of shares subject to this Warrant immediately
prior to such adjus
|
