Amendment to Registration of Securities of a Small-Business Issuer — Form 10-SB Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10SB12G/A Spiralfrog, Inc. Form 10SB12G/A HTML 1.14M
2: EX-3.5 Articles of Incorporation/Organization or By-Laws HTML 16K
7: EX-4.10 Instrument Defining the Rights of Security Holders HTML 15K
3: EX-4.6 Instrument Defining the Rights of Security Holders HTML 193K
4: EX-4.7 Instrument Defining the Rights of Security Holders HTML 138K
5: EX-4.8 Instrument Defining the Rights of Security Holders HTML 80K
6: EX-4.9 Instrument Defining the Rights of Security Holders HTML 88K
EX-4.8 — Instrument Defining the Rights of Security Holders
NEITHER
THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES ISSUABLE
UPON
THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS, AND NEITHER
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED
OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
OR
(2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION
ARE SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES
LAWS.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
THE
EXERCISE OF THIS WARRANT ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTOR SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
Mohen,
Inc. d/b/a/ Spiral Frog, a Delaware corporation (the “Company”), for
value received, hereby issues to DISTRESSED HIGH YIELD TRADING OPPORTUNITIES
FUND, LTD. (the “Holder”) this Warrant (the “Warrant”) to purchase
Two Million Seven Hundred Twenty-Seven Thousand, Two Hundred Three (2,727,273)
shares (each such share being a “Warrant Share” and all such shares being
the “Warrant Shares”) of the Company’s Common Stock (as defined below),
at the Exercise Price (as defined below), as adjusted from time to time as
provided herein, from and after the day after the date that the Common Stock
is
registered pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 (the “Effective Date”) and on or before August 7, 2012 (the
“Expiration Date”), all subject to the following terms and
conditions.
1
As
used
in this Warrant, (i) “Common Stock” means the common stock of the
Company, $0.001 par value per share, and such other securities as such class
of
common stock may be converted from time to time in the future; and (ii)
“Exercise Price” means $1.00, subject to adjustment as provided
herein.
1.DURATION
AND EXERCISE OF WARRANTS
(a) The
Holder may exercise this Warrant on any business day from and after the
Effective Date and on or before 5:00 P.M., New York Time, on the Expiration
Date, at which time this Warrant shall become void and of no value.
(b) While
this Warrant remains outstanding and exercisable in accordance with Section
1(a), the Holder may exercise this Warrant in whole or in part by:
(i) surrender
of this Warrant, with a duly executed copy of the Notice of Exercise attached
as
Exhibit A, to the Secretary of the Company at its principal offices
or at such other office or agency as the Company may specify in
writing to the Holder; and
(ii) payment
of the Exercise Price per share multiplied by the number of Warrant Shares
being
purchased upon exercise of the Warrant in lawful money of the United States
of
America or pursuant to the net exercise provisions set forth in subsection
(d)
below; or
Upon
the
exercise of this Warrant in compliance with the provisions of this Section
1(b),
the Company shall promptly issue and cause to be delivered to the Holder a
certificate for the Warrant Shares purchased by the
Holder. Each exercise of this Warrant shall be effected
immediately prior to the close of business on the date (the “Date of
Exercise”) which the conditions set forth in Section 1(b)(i) and (ii) have
been satisfied.
2
(c) This
Warrant shall be exercisable, either as an entirety or, from time to time,
for
part only of the number of Warrant Shares referenced by this
Warrant. If this Warrant is exercised in part, the Company shall
issue, at its expense, a new Warrant, in substantially the form of this Warrant,
referencing such reduced number of Warrant Shares which remain subject to this
Warrant.
(d) The
Holder may elect to exercise this Warrant, in whole at any time or in part
from
time to time, by receiving shares of Common Stock equal to the net issuance
value (as determined below) of this Warrant, or any part hereof, in which event
the Company shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
X
= Y
x (A - B)
A
where,
X
= the number of
shares of Common Stock to be issued to the Holder
Y
= the number of
shares of Common Stock as to which this Warrant is to be exercised
A
= the closing
bid price of one share of Common Stock as of the last trading day immediately
preceding the exercise of this Warrant
B
= the Exercise
Price
3
2.ISSUANCE
OF WARRANT SHARES
(a) The
Company covenants that all Warrant Shares will, upon issuance in accordance
with
the terms of this Warrant, be (i) duly authorized, validly issued, fully paid
and non-assessable, and (ii) free from all liens, charges and security
interests, with the exception of claims arising through the acts or omissions
of
any Holder and except as arising from applicable Federal and state securities
laws.
(b) The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose in the name of the record holder of such Warrant from time
to
time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner thereof for the purpose of any exercise thereof,
any distribution to the Holder thereof and for all other purposes.
(c) The
Company will not, by amendment of its certificate of incorporation, by-laws
or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all the action as may be necessary or appropriate in order to protect
the rights of the Holder to exercise this Warrant.
3.ADJUSTMENTS
OF EXERCISE PRICE, NUMBER AND TYPE OF WARRANT SHARES
(a) The
Exercise Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence
of
certain events described in this Section 3(a).
(i)Subdivision
or Combination of Stock. In case the Company shall at any time
subdivide its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price in effect immediately prior to such subdivision
shall
be proportionately reduced and the number of shares for which this Warrant
is
exercisable shall be proportionately increased, and conversely, in case the
outstanding shares of Common Stock of the Company shall be combined into a
smaller number of shares, the Exercise Price in effect immediately prior to
such
combination shall be proportionately increased and the number of shares for
which this Warrant is exercisable shall be proportionately reduced.
4
(ii)Dividends
in Stock, Property, Reclassification. If at any time or from time
to time the Holders of Common Stock (or any shares of stock or other securities
at the time receivable upon the exercise of this Warrant) shall have received
or
become entitled to receive, without payment therefor:
(A) any
shares of stock or other securities which are at any time directly or indirectly
convertible into or exchangeable for Common Stock, or any rights or options
to
subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution, or
(B) additional
stock or other securities or property (including cash) by way of spin-off,
split-up, reclassification, combination of shares or similar corporate
rearrangement (other than shares of Common Stock issued as a stock split or
adjustments in respect of which shall be covered by the terms of Section 3(a)(i)
above),
then
and
in each such case, the Holder hereof shall, upon the exercise of this Warrant,
be entitled to receive, in addition to the number of shares of Common Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including
cash
in the cases referred to in clause (ii) above) which such Holder would hold
on
the date of such exercise had he been the holder of record of such Common Stock
as of the date on which holders of Common Stock received or became entitled
to
receive such shares or all other additional stock and other securities and
property.
(iii)Reorganization,
Reclassification, Consolidation, Merger or Sale. If any
recapitalization, reclassification or reorganization of the capital stock of
the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of its assets or other transaction
shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities, or other assets or property (an “Organic
Change”), then, as a condition of such Organic Change, lawful and adequate
provisions shall be made by the Company whereby the Holder hereof shall
thereafter have the right to purchase and receive (in lieu of the shares of
the
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented by this Warrant) such shares of
stock, securities or other assets or property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable assuming the full exercise of the rights represented
by this Warrant. In the event of any Organic Change, appropriate
provision shall be made by the Company with respect to the rights and interests
of the Holder of this Warrant to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Exercise Price and of
the
number of shares purchasable and receivable upon the exercise of this Warrant)
shall thereafter be applicable, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof. The
Company will not effect any such consolidation, merger or sale unless, prior
to
the consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or the corporation purchasing such assets
shall assume by written instrument reasonably satisfactory in form and substance
to the Holders executed and mailed or delivered to the registered Holder hereof
at the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Holder may be entitled
to
purchase.
5
(iv) If
at any
time after the issuance hereof the Company issues or sells, or in accordance
with this Section 3(a)(iv) is deemed to have issued or sold, any shares of
Common Stock (including the issuance or sale of shares of Common Stock owned
or
held by or for the account of the Company, but excluding shares of Common Stock
deemed to have been issued or sold by the Company in connection with any
Excluded Securities) for a consideration per share (the "New Issuance Price")
less than a price (the "Applicable Price") equal to Exercise Price in effect
immediately prior to such issue or sale (the foregoing a "Dilutive Issuance"),
then immediately after such Dilutive Issuance, the Exercise Price then in effect
shall be reduced to the New Issuance Price and the number of shares for which
this Warrant may thereafter be exercised shall be increased to a number equal
to
the quotient obtained by dividing the aggregate Exercise Price in effect
immediately prior to the Dilutive Issuance by the Exercise Price in effect
immediately after the Dilutive Issuance after giving effect to the reduction
in
the Exercise Price. For purposes of determining the adjusted Exercise
Price under this Section 3(a)(iv), the following shall be
applicable:
(A) Issuance
of Options. If the Company in any manner grants or sells any
Options and the lowest price per share for which one share of Common Stock
is
issuable upon the exercise of any such Option or upon conversion or exchange
or
exercise of any Convertible Securities issuable upon exercise of such Option
is
less than the Applicable Price, then such share of Common Stock shall be deemed
to be outstanding and to have been issued and sold by the Company at the time
of
the granting or sale of such Option for such price per share. For
purposes of this Section 3(a)(iv), the "lowest price per share for which one
share of Common Stock is issuable upon the exercise of any such Option or upon
conversion or exchange or exercise of any Convertible Securities issuable upon
exercise of such Option" shall be equal to the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with respect to
any
one share of Common Stock upon granting or sale of the Option, upon exercise
of
the Option and upon conversion or exchange or exercise of any Convertible
Security issuable upon exercise of such Option. No further adjustment
of the Exercise Price shall be made upon the actual issuance of such share
of
Common Stock or of such Convertible Securities upon the exercise of such Options
or upon the actual issuance of such Common Stock upon conversion or exchange
or
exercise of such Convertible Securities.
(B) Issuance
of Convertible Securities. If the Company in any manner issues or
sells any Convertible Securities and the lowest price per share for which one
share of Common Stock is issuable upon such conversion or exchange or exercise
thereof is less than the Applicable Price, then such share of Common Stock
shall
be deemed to be outstanding and to have been issued and sold by the Company
at
the time of the issuance or sale of such Convertible Securities for such price
per share. For the purposes of this Section 3(a)(iv), the "lowest
price per share for which one share of Common Stock is issuable upon such
conversion or exchange or exercise" shall be equal to the sum of the lowest
amounts of consideration (if any) received or receivable by the Company with
respect to any one share of Common Stock upon the issuance or sale of the
Convertible Security and upon the conversion or exchange or exercise of such
Convertible Security. No further adjustment of the Exercise Price
shall be made upon the actual issuance of such share of Common Stock upon
conversion or exchange or exercise of such Convertible Securities, and if any
such issue or sale of such Convertible Securities is made upon exercise of
any
Options for which adjustment of the Exercise Price had been or are to be made
pursuant to other provisions of this Section 3(a)(iv), no further adjustment
of
the Exchange Price shall be made by reason of such issue or sale.
6
(C) Change
in Option Price or Rate of Exchange. If the purchase price
provided for in any Options, the additional consideration, if any, payable
upon
the issue, conversion, exchange or exercise of any Convertible Securities,
or
the rate at which any Convertible Securities are convertible into or
exchangeable or exercisable for Common Stock changes at any time, the Exercise
Price in effect at the time of such change shall be adjusted to the Exercise
Price which would have been in effect at such time had such Options or
Convertible Securities provided for such changed purchase price, additional
consideration or changed conversion or exchange rate, as the case may be, at
the
time initially granted, issued or sold. For purposes of this Section
3(a)(iv), if the terms of any Option or Convertible Security that was
outstanding as of the Subscription Date are changed in the manner described
in
the immediately preceding sentence, then such Option or Convertible Security
and
the Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such change. No
adjustment shall be made if such adjustment would result in an increase of
the
Exercise Price then in effect.
(D) Calculation
of Consideration Received. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Options by the parties thereto, the Options will be deemed
to
have been issued for such consideration as determined in good faith by the
Board
of Directors of the Company. If any Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been issued or
sold
for cash, the consideration received therefor will be deemed to be the net
amount received by the Company therefor. If any Common Stock, Options
or Convertible Securities are issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the Company
will be the fair value of such consideration as determined in good faith by
the
Board of Directors of the Company, except where such consideration consists
of
securities, in which case the amount of consideration received by the Company
will be the closing sale price of such securities on the date of
receipt. If any Common Stock, Options or Convertible Securities are
issued to the owners of the non-surviving entity in connection with any merger
in which the Company is the surviving entity, the amount of consideration
therefor will be deemed to be the fair value of such portion of the net assets
and business of the non-surviving entity as is attributable to such Common
Stock, Options or Convertible Securities, as the case may be. Except
as otherwise provided in this Section 3(a)(iv), the fair value of any
consideration other than cash or securities will be determined jointly by the
Company and the Holders of a majority of the Warrants. If such
parties are unable to reach agreement within ten (10) days after the occurrence
of an event requiring valuation (the "Valuation Event"), the fair value of
such
consideration will be determined by an independent, reputable appraiser jointly
selected by the Company and the Required Holders within five (5) Business Days
after the tenth day following the Valuation Event. The determination
of such appraiser shall be deemed binding upon all parties absent manifest
error
and the fees and expenses of such appraiser shall be borne by the
Company.
(E) Record
Date. If the Company takes a record of the holders of Common
Stock for the purpose of entitling them (A) to receive a dividend or other
distribution payable in Common Stock, Options or in Convertible Securities
or
(B) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date will be deemed to be the date of the issue
or
sale of the Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may
be.
7
(F) Certain
Definitions. For purposes of this Section 3(a)(iv), the following
terms shall have the following meaning:
"Approved
Stock Plan" means any employee benefit plan which has been approved by
the Board of Directors of the Company, pursuant to which the Company's
securities may be issued to any employee, consultant, officer or director for
services provided to the Company.
"Convertible
Securities" means any stock or securities (other than Options) directly
or indirectly convertible into or exercisable or exchangeable for Common
Stock.
"Excluded
Securities" means any Common Stock, Options or other securities issued:
(i) in connection with any Approved Stock Plan up to a maximum of an additional
5% of the outstanding shares of capital stock calculated on a fully-diluted
basis; (ii) upon exercise of the Warrants; (iii) in connection with any
acquisition by the Company, whether through an acquisition of stock or a merger
of any business, assets or technologies the primary purpose of which is not
to
raise equity capital; (iv) in connection with corporate partnering transactions
on terms approved by the Board of Directors of the Company and the primary
purpose of which is not to raise equity capital; and (v) upon conversion of
any
Options or Convertible Securities which are outstanding on the day immediately
preceding the date hereof, provided that the terms of such Options or
Convertible Securities are not amended, modified or changed on or after the
date
hereof.
"Options"
means any rights, warrants or options to subscribe for or purchase Common Stock
or Convertible Securities.
(b)Certificate
as to Adjustments. Upon the occurrence of each adjustment or
readjustment pursuant to this Section 3, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to each holder of this Warrant a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which
such
adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such holder, furnish or cause to be
furnished to such holder a like certificate setting forth: (i) such
adjustments and readjustments; and (ii) the number of shares and the
amount, if any, of other property which at the time would be received upon
the
exercise of the Warrant.
(c)Certain
Events. If any event occurs as to which, in the opinion of the
Company, the other provisions of this Section 3 are not strictly applicable
but
the lack of any adjustment would not in the opinion of the Company fairly
protect the purchase rights of the Holder under this Warrant in accordance
with
the basic intent and principles of such provisions, or if strictly applicable
would not fairly protect the purchase rights of the Holder under this Warrant
in
accordance with the basic intent and principles of such provisions, then the
Company shall make the adjustments as the board of directors deems reasonable
to
fairly protect the purchase rights of the Holder under this
Warrant.
8
4.TRANSFERS
AND EXCHANGES OF WARRANT AND WARRANT SHARES
(a)Registration
of Transfers and Exchanges. Subject to Section 4(c), upon the Holder’s
surrender of this Warrant, with a duly executed copy of the Assignment Notice
attached as Exhibit B, to the Secretary of the Company at its principal
offices or at such other office or agency as the Company may specify in writing
to the Holder, the Company shall register the transfer of all or any portion
of
this Warrant. Upon such registration of transfer the Company shall issue a
new
Warrant, in substantially the form of this Warrant, evidencing the acquisition
rights transferred to the transferee and a new Warrant, in similar form,
evidencing the remaining acquisition rights not transferred, to the Holder
requesting the transfer.
(b)Warrant
Exchangeable for Different Denominations. The Holder may exchange this
Warrant for a new Warrant or Warrants, in substantially the form of this
Warrant, evidencing in the aggregate the right to purchase the number of Warrant
Shares which may then be purchased hereunder, each of such new Warrants to
be
dated the date of such exchange and to represent the right to purchase such
number of Warrant Shares as shall be designated by the Holder. The
Holder shall surrender this Warrant with duly executed instructions regarding
such re-certification of this Warrant to the Secretary of the Company at its
principal offices or at such other office or agency as the Company may specify
in writing to the Holder.
(c)Restrictions
on Transfers. This Warrant may not be transferred at any time
without (i) registration under the Act or (ii) an exemption from such
registration and a written opinion of legal counsel addressed to the Company
that the proposed transfer of the Warrant may be effected without registration
under the Act, which opinion will be in form and from counsel reasonably
satisfactory to the Company.
5.MUTILATED
OR MISSING WARRANT CERTIFICATE
If
this
Warrant is mutilated, lost, stolen or destroyed, upon request by the Holder,
the
Company will issue, in exchange for and upon cancellation of the mutilated
Warrant, or in substitution for the lost, stolen or destroyed Warrant, a new
Warrant, in substantially the form of this Warrant, representing the right
to
acquire the equivalent number of Warrant Shares, provided however, as a
prerequisite to the issuance of a substitute Warrant, the Company may require
satisfactory evidence of loss, theft or destruction as well as an indemnity
from
the Holder of a lost, stolen or destroyed Warrant.
9
6.PAYMENT
OF TAXES
The
Company will pay all transfer and stock issuance taxes attributable to the
preparation, issuance and delivery of this Warrant and the Warrant Shares
including, without limitation, all documentary and stamp taxes; provided,
however, that the Company shall not be required to pay any tax in
respect
of the transfer of this Warrant, or the issuance or delivery of certificates
for
Warrant Shares or other securities in respect of the Warrant Shares to any
person or entity other than the Holder.
7.FRACTIONAL
WARRANT SHARES
No
fractional Warrant Shares shall be issued upon exercise of this
Warrant. The Company shall, in lieu of issuing any fractional Warrant
Share, round up the number of Warrant Shares issuable to nearest whole
share.
8.NO
STOCK RIGHTS AND LEGEND
No
holder
of this Warrant Certificate, as such, shall be entitled to vote or be deemed
the
holder of any other securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained herein be construed to
confer upon the holder of this Warrant Certificate, as such, the rights of
a
stockholder of the Company or the right to vote for the election of directors
or
upon any matter submitted to stockholders at any meeting thereof, or give or
withhold consent to any corporate action or to receive notice of meetings or
other actions affecting stockholders (except as provided herein), or to receive
dividends or subscription rights or otherwise (except as provide
herein).
Each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant Certificate, and each certificate for Warrant Shares issued to any
subsequent transferee of any such certificate, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES
LAWS, AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.”
10
9.REGISTRATION
UNDER THE SECURITIES ACT OF 1933
The
Company agrees to register the Warrant Shares for resale under the Act on the
terms and subject to the conditions set forth in the Amended and Restated
Registration Rights Agreement (the “Registration Rights Agreement”)
between the Company and each of the investors in the Private Placement Offering
the “PPO”) pursuant to which this Warrant was originally issued.
10.NOTICES
All
notices, consents, waivers, and other communications under this Warrant must
be
in writing and will be deemed given to a party when (a) delivered to the
appropriate address by hand or by nationally recognized overnight courier
service (costs prepaid); (b) sent by facsimile with confirmation of transmission
by the transmitting equipment; (c) received or rejected by the addressee, if
sent by certified mail, return receipt requested, or (d) seven days after the
placement of the notice into the mails (first class postage prepaid), to the
Holder at the address or facsimile address furnished by the registered Holder
to
the Company in accordance with the Amended and Restated Purchase Agreement
utilized in connection with the PPO, or if to the Company, to it at 95 Morton
Street, New York, NY10014, Attention: Chief Executive Officer (or to such
other
address, facsimile number, e-mail address as the Holder or the Company as a
party may designate by notice the other party).
11.SEVERABILITY
If
a
court of competent jurisdiction holds any provision of this Warrant invalid
or
unenforceable, the other provisions of this Warrant will remain in full force
and effect. Any provision of this Warrant held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
12. BINDING
EFFECT
This
Warrant shall be binding upon and inure to the sole and exclusive benefit of
the
Company, its successors and assigns, the registered Holder or Holders from
time
to time of this Warrant and the Warrant Shares.
11
13.SURVIVAL
OF RIGHTS AND DUTIES
This
Warrant Certificate shall terminate and be of no further force and effect on
the
earlier of 5:00 P.M., New York Time, on the Expiration Date or the date on
which
this Warrant has been exercised.
14.GOVERNING
LAW
This
Warrant will be governed by and construed under the laws of New York without
regard to conflicts of laws principles that would require the application of
any
other law.
15.CALL
PROVISIONS
In
the
event that the closing bid price of a share of Common Stock as traded on a
national securities exchange or the Over-the-Counter Bulletin Board equals
or
exceeds $3.00 (appropriately adjusted for any stock split, reverse stock split,
stock dividend or other reclassification or combination of the Common Stock
occurring after the date hereof) for at least 20 consecutive trading days during
any period of thirty (30) consecutive trading days during which a registration
statement (as required by the Registration Rights Agreement) has been effective
and the daily volume of Common Stock traded on each such day is at least 200,000
shares (the "Trading Condition"), the Company, upon thirty (30) days
prior written notice (the "Notice Period") given to the Holder no more than
two
trading days after the last day in such 20 day period, may call this Warrant
at
a redemption price equal to $0.01 per share of Common Stock then purchasable
pursuant to this Warrant; provided that (i) the Company simultaneously calls
all
Warrants on the same terms and (ii) all of the Warrant Shares issuable hereunder
either (A) are registered pursuant to an effective registration statement (as
required by the Registration Rights Agreement) which has not been suspended
and
for which no stop order is in effect, and pursuant to which the Holder is able
to sell Warrant Shares at all times during the Notice Period and is reasonably
expected to be able to sell Warrant Shares for a period of 30 days after the
Notice Period or (B) no longer constitute Registrable Securities (as defined
in
the Registration Rights Agreement). Notwithstanding any such notice
by the Company, the Holder shall have the right to exercise this Warrant prior
to the end of the Notice Period.
[SIGNATURE
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized as of the date hereof.
MOHEN,
INC.
By:
Name Orville
Hagler
Title Corporate
Secretary
13
EXHIBIT
A
EXERCISE
FORM
(To
be executed by the Holder of Warrant if such Holder desires to exercise
Warrant)
To
Mohen,
Inc.:
The
undersigned hereby irrevocably elects:
[ ]
to exercise this Warrant and to purchase thereunder, ___________________ full
shares of Mohen, Inc. common stock issuable upon exercise of the Warrant and
delivery of $_________ (in cash as provided for in the foregoing Warrant) and
any applicable taxes payable by the undersigned pursuant to such Warrant;
or
[ ]
to receive shares of Common Stock having a value equal to the value of the
Warrant calculated in accordance with Section 1(d) of the Warrant.
The
undersigned requests that certificates for such shares be issued in the name
of:
(Please
print name, address and social security or federal employer identification
number (if applicable)
If
the
shares issuable upon this exercise of the Warrant are not all of the Warrant
Shares which the Holder is entitled to acquire upon the exercise of the Warrant,
the undersigned requests that a new Warrant evidencing the rights not so
exercised be issued in the name of and delivered to:
(Please
print name, address and social security or federal employer identification
number (if applicable)
Name
of
Holder (print): _______________________________
FOR
VALUE
RECEIVED, ___________________________________ hereby sells, assigns and
transfers to each assignee set forth below all of the rights of the undersigned
under the Warrant (as defined in and evidenced by the attached Warrant) to
acquire the number of Warrant Shares set opposite the name of such assignee
below and in and to the foregoing Warrant with respect to said acquisition
rights and the shares of Mohen, Inc. d/b/a/ Spiral Frog issuable upon exercise
of the Warrant:
Name
of Assignee
Address
Number
of Warrant Shares
If
the
total of the Warrant Shares are not all of the Warrant Shares evidenced by
the
foregoing Warrant, the undersigned requests that a new Warrant evidencing the
right to acquire the Warrant Shares not so assigned be issued in the name of
and
delivered to the undersigned.
Name
of
Holder (print): _______________________________
