Exhibit 10.30
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED WARRANT CERTIFICATE
Warrant Certificate evidencing
Warrants to Purchase
Common Stock, par value $.0001
As described herein.
180 Connect Inc.
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| No. W-3
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CUSIP No. 682343 116 |
VOID AFTER 5:00 P.M., NEW YORK TIME,
ON AUGUST 24, 2012, OR UPON EARLIER REDEMPTION
This certifies that Laurus Master Fund, Ltd. (“Laurus”) or registered assigns is the
registered holder of 250,000 warrants to purchase certain securities (each a “Warrant”). Each
Warrant entitles the holder thereof, subject to the provisions contained herein, to purchase from
180 Connect Inc., a Delaware corporation (the “Company”), one share of the Company’s Common Stock
(each, a “Share”), at the Exercise Price set forth below. The exercise price of each Warrant (the
“Exercise Price”) shall be equal to US$3.00.
Each Warrant evidenced hereby may be exercised at any time, as specified herein, on any
Business Day (as defined below) on or prior to the fifth anniversary of the closing of the
arrangement (the “Expiration Date”) pursuant to that certain Arrangement Agreement dated as of
March 13, 2007 by and among the Company, 6732097 Canada Inc., and 180 Connect Inc., as amended (the
“Arrangement”). Each Warrant remaining unexercised after 5:00 P.M., New York time, on the
Expiration Date shall become void, and all rights of the holder of this Warrant Certificate
evidencing such Warrant shall cease.
In no event will the Company be obligated to pay holders of Warrants any cash or other
consideration or otherwise “net cash settle” any Warrants.
The holder of the Warrants represented by this Warrant Certificate may exercise any Warrant
evidenced hereby by delivering, not later than 5:00 P.M., New York time, on any Business Day on or
prior to the Expiration Date (the “Exercise Date”) to the Company, (i) this Warrant Certificate,
(ii) an election to purchase (“Election to Purchase”), properly executed by the holder hereof on
the reverse of this Warrant Certificate, and substantially in the form included on the reverse of
hereof and (iii) the Exercise Price for each Warrant to be exercised in lawful money of the United
States of America by certified or official bank check or by bank wire transfer in immediately
available funds. If any of (a) this Warrant Certificate, (b) the Election to Purchase, or (c) the
Exercise Price therefor, is received by the Company after 5:00 P.M., New York time, on the
specified Exercise Date, the Warrants will be deemed to be received and exercised on the Business
Day next succeeding the Exercise Date. If the date specified as the Exercise Date is not a
Business Day, the Warrants will be deemed to be received and exercised on the next succeeding day
which is a Business Day. If the Warrants to be exercised are received or deemed to be received
after the Expiration Date, the exercise thereof will be null and void and any funds delivered to
the Company will be returned to the holder as soon as practicable. In no event will interest
accrue on funds deposited with the Company in respect of an exercise or attempted exercise of
Warrants.
As used herein, the term “Business Day” means any day that is not a Saturday or Sunday and is
not a United States federal holiday or a day on which banking institutions generally are authorized
or obligated by law or regulation to close in New York.
Warrants may be exercised only in whole numbers of Warrants. No fractional shares of Common
Stock are to 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. If fewer than all of the
Warrants evidenced by this Warrant Certificate are exercised, a new Warrant Certificate for the
number of Warrants remaining unexercised shall be executed by
the Company and delivered to the holder of this Warrant Certificate at the address specified
on the books of the Company or as otherwise specified by such Registered Holder.
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Laurus hereby agrees that Laurus shall not sell, transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction with the same economic
effect as a sale, the Warrants or the Shares issuable upon exercise of the Warrants until the first
anniversary of the closing of the Arrangement.
The accrual of dividends, if any, on the Shares issued upon the valid exercise of any Warrant
will be governed by the terms generally applicable to such Shares. From and after the issuance of
such Shares, the former holder of the Warrants exercised will be entitled to the benefits generally
available to other holders of Shares and such former holder’s right to receive payments of
dividends and any other amounts payable in respect of the Shares shall be governed by, and shall be
subject to, the terms and provisions generally applicable to such Shares.
The Exercise Price and the number of Shares purchasable upon the exercise of each Warrant
shall be subject to adjustment as follows: (1) if after the date hereof, and otherwise subject to
the terms of this Warrant Certificate, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of
Common Stock, or other similar event, then, on the effective date of such stock dividend, split-up
or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall
be increased in proportion to such increase in outstanding shares of Common Stock; and (2) if after
the date hereof, and otherwise subject to the terms of this Warrant Certificate, the number of
outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock
split or reclassification of shares of Common Stock or other similar event, then, on the effective
date of such consolidation, combination, reverse stock split, reclassification or similar event,
the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in
proportion to such decrease in outstanding shares of Common Stock. Whenever the number of shares
of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in items (1)
and (2) above, the Exercise Price shall be adjusted (to the nearest cent) by multiplying such
Exercise Price immediately prior to such adjustment by a fraction (x) the numerator of which shall
be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common
Stock so purchasable immediately thereafter. Upon the occurrence of any event specified in this
paragraph, the Company shall give written notice to the Warrant holder, at the last address set
forth for such holder in the warrant register, of the record date or the effective date of the
event.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of
such event.
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Upon due presentment for registration of transfer or exchange of this Warrant Certificate the
Company shall execute, in the name of the designated transferee one or more new Warrant
Certificates of any authorized denomination evidencing in the aggregate a like number of
unexercised Warrants.
Notwithstanding anything herein to the contrary, in no event shall the holder of the Warrants
be entitled to exercise any portion of this Warrant Certificate in excess of that portion of this
Warrant Certificate upon exercise of which the sum of (1) the number of Shares beneficially owned
by the holder of the Warrants and its Affiliates (other than Shares which may be deemed
beneficially owned through the ownership of the unexercised portion of this Warrant Certificate or
the unexercised or unconverted portion of any other security of the holder of the Warrants subject
to a limitation on conversion analogous to the limitations contained herein) and (2) the number of
Shares issuable upon the exercise of the portion of this Warrant Certificate with respect to which
the determination of this proviso is being made, would result in beneficial ownership by the holder
of the Warrants and its Affiliates of any amount greater than 9.99% of the then outstanding Shares
(whether or not, at the time of such exercise, the holder of the Warrants and its Affiliates
beneficially own more than 9.99% of the then outstanding Shares). As used herein, the term
“Affiliate” means any person or entity that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a person or entity, as
such terms are used in and construed under Rule 144 under the Securities Act. For purposes of the
second preceding sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulations 13D-G thereunder, except
as otherwise provided in clause (1) of such sentence. For any reason at any time, upon written or
oral request of the holder of the Warrants, the Company shall within one (1) business day confirm
orally and in writing to the holder of the Warrants the number of Shares outstanding as of any
given date. The limitations set forth herein (x) may be waived by the holder of the Warrants upon
provision of no less than sixty-one (61) days prior written notice to the Company and (y) shall
automatically become null and void following notice to the Company upon the occurrence and during
the continuance of an Event of Default (as defined in the Security and Purchase Agreement dated as
of July 31, 2006 among 180 Connect Inc., a Nevada corporation, and the other parties signatory
thereto and Laurus).
Neither this Warrant Certificate nor the Warrants evidenced hereby shall entitle the holder
hereof or thereof to any of the rights of a holder of the Shares, including, without
limitation, the right to receive dividends, if any, or payments upon the liquidation,
dissolution or winding up of the Company or to exercise voting rights, if any.
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The Company shall at all times reserve and keep available a number of its authorized but
unissued shares of Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants issued pursuant to this Warrant Certificate.
This Warrant Certificate may not be amended without the consent of the holder of this Warrant
Certificate or the Warrants evidenced thereby.
The Warrants have been issued in a private placement and are “restricted securities” within
the meaning of the Securities Act of 1933.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS FORMED AND
TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION.
This Amended and Restated Warrant Certificate amends and restates in its entirety, and is
given in substitution for and not in satisfaction of, that certain Warrant Certificate No. W-3,
CUSIP No. 682343 116 dated August 24, 2007 by the Company in favor of Laurus.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated as of October __, 2007
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180 Connect Inc., a Delaware corporation
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By: |
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Peter Giacalone, Chief Executive Officer |
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[REVERSE]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must, by 5:00 P.M., New York time, on
the specified Exercise Date, deliver to the Company, a certified or official bank check or a wire
transfer in immediately available funds, in each case payable to the Company, in an amount equal to
the Exercise Price in full for the Warrants exercised. In addition, the Warrant holder must provide
the information required below and deliver this Warrant Certificate to the Company at the address
set forth below. The Warrant Certificate and this Election to Purchase must be received by the
Company by 5:00 P.M., New York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on ___, ___(the “Exercise
Date”), ___Warrants, evidenced by this Warrant Certificate, to purchase,
___of the shares of Common Stock (each, a “Share”) of 180 Connect Inc., a Delaware
corporation (the “Company”), and represents that on or before the Exercise Date such holder has
tendered payment for such Shares by certified or official bank check or bank wire transfer in
immediately available funds to the order of the Company, in the amount of $___in
accordance with the terms hereof. The undersigned requests that said number of Shares be in fully
registered form, registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
If said number of Shares is less than all of the Shares purchasable hereunder, the undersigned
requests that a new Warrant Certificate evidencing the remaining balance of the Warrants evidenced
hereby be issued and delivered to the holder of the Warrant Certificate unless otherwise specified
in the instructions below.
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Dated: ______________ __, ____
Name__________________________
________________ (Please Print)
/ / / /
— / / /- / / / / /
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
____________________________________
Signature________________________
This Warrant may only be exercised by presentation to the Company at one of the following
locations:
By hand at:
By mail at:
The method of delivery of this Warrant Certificate is at the option and risk of the exercising
holder and the delivery of this Warrant Certificate will be deemed to be made only when actually
received by the Company. If delivery is by mail, registered mail with return receipt requested,
properly insured, is recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
(Instructions as to form and delivery of Shares and/or Warrant Certificates)
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Name in which Shares
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate: |
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Address to which Shares
are to be mailed if other than to the
address of the registered holder of
this Warrant Certificate as shown on
the books of the Company: |
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(Street Address) |
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(City and State) (Zip Code) |
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Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this |
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Warrant Certificate: |
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Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than to the address of
the registered holder of this Warrant
Certificate as shown on the books of
the Company: |
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(Street Address) |
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(City and State) (Zip Code) |
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Dated: |
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Signature |
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Signature must conform in all respects to the name of
the holder as specified on the face of this Warrant
Certificate. If Shares, or a Warrant Certificate
evidencing unexercised Warrants, are to be issued in
a name other than that of the registered holder
hereof or are to be delivered to an address other
than the address of such holder as shown on the books
of the Company, the above signature must be
guaranteed by a an Eligible Guarantor Institution (as
that term is defined in Rule 17Ad-15 of the
Securities Exchange Act of 1934, as amended). |
SIGNATURE GUARANTEE
Dated: _________________________, 200___
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ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED, ___________________________ HEREBY SELL(S), ASSIGN(S) AND
TRANSFER(S) UNTO _______________________________________________________________
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(Please print name and address
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(Please insert social security or |
including zip code of assignee)
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other identifying number of assignee) |
the rights represented by the within Warrant Certificate and does hereby irrevocably constitute and
appoint _________Attorney to transfer said Warrant Certificate on the books of the Company with
full power of substitution in the premises.
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Dated: |
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Signature |
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(Signature must conform in all respects to the name of the
holder as specified on the face of this Warrant Certificate
and must bear a signature guarantee by an Eligible Guarantor
Institution (as that term is defined in Rule 17Ad-15 of the
Securities Exchange Act of 1934, as amended). |
SIGNATURE GUARANTEE
Dated: _________________________, 200___
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