f10q0310ex10ii_volcan.htm


    Exhibit 10.2

     

    
       
 

       

      
        	 
      	
                WARRANT

              	 
      
	 
      	
                VOLCAN
      HOLDINGS, INC.

              	
                2,600,000
      Shares

              
	 
      	 
      	 
      


      

      WARRANT TO PURCHASE COMMON
STOCK

       

      VOID
AFTER 5:30 P.M., EASTERN

      TIME,
ON THE EXPIRATION DATE

       

      THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE
FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS
THEREFROM.

       

      FOR VALUE
RECEIVED, VOLCAN HOLDINGS, INC., a Delaware corporation (the “Company”), hereby
agrees to sell upon the terms and on the conditions hereinafter set forth, but
no later than 5:30 p.m., Eastern Time, on the Expiration Date (as hereinafter
defined) to EPFC or
registered assigns (the “Holder”), under the
terms as hereinafter set forth, two million six hundred thousand
(2,600,000) fully paid and non-assessable shares of the Company’s Common
Stock, par value $0.001 per share (the “Warrant Stock”), at a
purchase price of one
dollar ($1.00) per share (the “Warrant Price”),
pursuant to this warrant (this “Warrant”).  The
number of shares of Warrant Stock to be so issued and the Warrant Price are
subject to adjustment in certain events as hereinafter set forth.  The
term “Common
Stock” shall mean, when used herein, unless the context otherwise
requires, the stock and other securities and property at the time receivable
upon the exercise of this Warrant.

       

      1.            
Exercise of
Warrant.

       

      a.    The
Holder may exercise this Warrant according to its terms by surrendering this
Warrant to the Company at the address set forth in the Notice of Exercise
attached hereto having then been duly executed by the Holder, accompanied by
cash, certified check or bank draft in payment of the purchase price, in lawful
money of the United States of America, for the number of shares of the Warrant
Stock specified in the Notice of Exercise, or as otherwise provided in this
Warrant, prior to 5:30 p.m., Eastern Time, on May ____, 2015 (the “Expiration Date”).

       

      b.    This
Warrant may be exercised in whole or in part so long as any exercise in part
hereof would not involve the issuance of fractional shares of Warrant
Stock.  If exercised in part, the Company shall deliver to the Holder
a new Warrant, identical in form, in the name of the Holder, evidencing the
right to purchase the number of shares of Warrant Stock as to which this Warrant
has not been exercised, which new Warrant shall be signed by the Chairman, Chief
Executive Officer or President and the Secretary or Assistant Secretary of the
Company.  The term Warrant as used herein shall include any subsequent
Warrant issued as provided herein.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      c.    No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. The Company shall pay cash in lieu of fractions
with respect to the Warrants based upon the fair market value of such fractional
shares of Common Stock (which shall be the closing price of such shares on the
exchange or market on which the Common Stock is then traded) at the time of
exercise of this Warrant.

       

      d.    In the
event of any exercise of the rights represented by this Warrant, a certificate
or certificates for the Warrant Stock so purchased, registered in the name of
the Holder, shall be delivered to the Holder within a reasonable time after such
rights shall have been so exercised. The person or entity in whose name any
certificate for the Warrant Stock is issued upon exercise of the rights
represented by this Warrant shall for all purposes be deemed to have become the
holder of record of such shares immediately prior to the close of business on
the date on which the Warrant was surrendered and payment of the Warrant Price
and any applicable taxes was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the opening of business on
the next succeeding date on which the stock transfer books are open. The Company
shall pay any and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of Common Stock on
exercise of this Warrant.

       

      2.            
Disposition of Warrant Stock
and Warrant.

       

      a.    The
Holder hereby acknowledges that this Warrant and any Warrant Stock purchased
pursuant hereto are, as of the date hereof, not registered: (i) under the
Securities Act of 1933, as amended (the “Act”), on the ground
that the issuance of this Warrant is exempt from registration under Section 4(2)
of the Act as not involving any public offering or (ii) under any applicable
state securities law because the issuance of this Warrant does not involve any
public offering; and that the Company’s reliance on the Section 4(2) exemption
of the Act and under applicable state securities laws is predicated in part on
the representations hereby made to the Company by the Holder that it is
acquiring this Warrant and will acquire the Warrant Stock for investment for its
own account, with no present intention of dividing its participation with others
or reselling or otherwise distributing the same, subject, nevertheless, to any
requirement of law that the disposition of its property shall at all times be
within its control.

       

      The
Holder hereby agrees that it will not sell or transfer all or any part of this
Warrant and/or Warrant Stock unless and until it shall first have given notice
to the Company describing such sale or transfer and furnished to the Company
either (i) an opinion, reasonably satisfactory to counsel for the Company, of
counsel (skilled in securities matters, selected by the Holder and reasonably
satisfactory to the Company) to the effect that the proposed sale or transfer
may be made without registration under the Act and without registration or
qualification under any state law, or (ii) an interpretative letter from the
Securities and Exchange Commission to the effect that no enforcement action will
be recommended if the proposed sale or transfer is made without registration
under the Act.

       

       

      
        
          
          

        

        
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      b. If, at
the time of issuance of the shares issuable upon exercise of this Warrant, no
registration statement is in effect with respect to such shares under applicable
provisions of the Act, the Company may at its election require that the Holder
provide the Company with written reconfirmation of the Holder’s investment
intent and that any stock certificate delivered to the Holder of a surrendered
Warrant shall bear legends reading substantially as follows:

       

      “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF
THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.”

       

      In
addition, so long as the foregoing legend may remain on any stock certificate
delivered to the Holder, the Company may maintain appropriate “stop transfer”
orders with respect to such certificates and the shares represented thereby on
its books and records and with those to whom it may delegate registrar and
transfer functions.

       

      3.            
Reservation of
Shares.  The Company hereby agrees that at all times there
shall be reserved for issuance upon the exercise of this Warrant such number of
shares of its Common Stock as shall be required for issuance upon exercise of
this Warrant.  The Company further agrees that all shares which may be
issued upon the exercise of the rights represented by this Warrant will be duly
authorized and will, upon issuance and against payment of the exercise price, be
validly issued, fully paid and non-assessable, free from all taxes, liens,
charges and preemptive rights with respect to the issuance thereof, other than
taxes, if any, in respect of any transfer occurring contemporaneously with such
issuance and other than transfer restrictions imposed by federal and state
securities laws.

       

      4.            
Exchange, Transfer or
Assignment of Warrant.  This Warrant is exchangeable, without
expense, at the option of the Holder, upon presentation and surrender hereof to
the Company or at the office of its stock transfer agent, if any, for other
Warrants of different denominations, entitling the Holder or Holders thereof to
purchase in the aggregate the same number of shares of Common Stock purchasable
hereunder.  Upon surrender of this Warrant to the Company or at the
office of its stock transfer agent, if any, with the Assignment Form annexed
hereto duly executed and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant in the name of the
assignee named in such instrument of assignment and this Warrant shall promptly
be canceled. This Warrant may be divided or combined with other Warrants that
carry the same rights upon presentation hereof at the office of the Company or
at the office of its stock transfer agent, if any, together with a written
notice specifying the names and denominations in which new Warrants are to be
issued and signed by the Holder hereof.

       

      5.            
Capital
Adjustments.  This Warrant is subject to the following further
provisions:

       

       

      
        
          
          

        

        
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      a.    Recapitalization,
Reclassification and Succession.  If any recapitalization
of the Company or reclassification of its Common Stock or any merger or
consolidation of the Company into or with a corporation or other business
entity, or the sale or transfer of all or substantially all of the Company’s
assets or of any successor corporation’s assets to any other corporation or
business entity (any such corporation or other business entity being included
within the meaning of the term “successor corporation”) shall be effected, at
any time while this Warrant remains outstanding and unexpired, then, as a
condition of such recapitalization, reclassification, merger, consolidation,
sale or transfer, lawful and adequate provision shall be made whereby the Holder
of this Warrant thereafter shall have the right to receive upon the exercise
hereof as provided in Section 1 and in lieu of the shares of Common Stock
immediately theretofore issuable upon the exercise of this Warrant, such shares
of capital stock, securities or other property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of Common Stock
equal to the number of shares of Common Stock immediately theretofore issuable
upon the exercise of this Warrant had such recapitalization, reclassification,
merger, consolidation, sale or transfer not taken place, and in each such case,
the terms of this Warrant shall be applicable to the shares of stock or other
securities or property receivable upon the exercise of this Warrant after such
consummation.

       

      b.    Subdivision or Combination
of Shares.  If the Company at any time while this Warrant
remains outstanding and unexpired shall subdivide or combine its Common Stock,
the number of shares of Warrant Stock purchasable upon exercise of this Warrant
and the Warrant Price shall be proportionately adjusted.

       

      c.    Stock Dividends and
Distributions.  If the Company at any time while this Warrant
is outstanding and unexpired shall issue or pay the holders of its Common Stock,
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, Common Stock,
then (i) the Warrant Price shall be adjusted in accordance with Section 5(e) and
(ii) the number of shares of Warrant Stock purchasable upon exercise of this
Warrant shall be adjusted to the number of shares of Common Stock that the
Holder would have owned immediately following such action had this Warrant been
exercised immediately prior thereto.

       

      d.    Stock and Rights Offering to
Shareholders.  If the Company shall at any time after the date
of issuance of this Warrant distribute to all holders of its Common Stock any
shares of capital stock of the Company (other than Common Stock) or evidences of
its indebtedness or assets (excluding cash dividends or distributions paid from
retained earnings or current year’s or prior year’s earnings of the Company) or
rights or warrants to subscribe for or purchase any of its securities (excluding
those referred to in the immediately preceding paragraph) (any of the foregoing
being hereinafter in this paragraph called the “Securities”), then in
each such case, the Company shall reserve shares or other units of such
Securities for distribution to the Holder upon exercise of this Warrant so that,
in addition to the shares of the Common Stock to which such Holder is entitled,
such Holder will receive upon such exercise the amount and kind of such
Securities which such Holder would have received if the Holder had, immediately
prior to the record date for the distribution of the Securities, exercised this
Warrant.

       

       

      
        
          
          

        

        
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      e.    Warrant Price
Adjustment.  Except as otherwise provided herein, whenever the
number of shares of Warrant Stock purchasable upon exercise of this Warrant is
adjusted, as herein provided, the Warrant Price payable upon the exercise of
this Warrant shall be adjusted to that price determined by multiplying the
Warrant Price immediately prior to such adjustment by a fraction (i) the
numerator of which shall be the number of shares of Warrant Stock purchasable
upon exercise of this Warrant immediately prior to such adjustment, and (ii) the
denominator of which shall be the number of shares of Warrant Stock purchasable
upon exercise of this Warrant immediately thereafter.

       

      f.    Certain Shares
Excluded.  The number of shares of Common Stock outstanding at
any given time for purposes of the adjustments set forth in this Section 5 shall
exclude any shares then directly or indirectly held in the treasury of the
Company.

       

      g.    Deferral and Cumulation of
De Minimis Adjustments.  The Company shall not be required to
make any adjustment pursuant to this Section 5 if the amount of such adjustment
would be less than one percent (1%) of the Warrant Price in effect immediately
before the event that would otherwise have given rise to such
adjustment.  In such case, however, any adjustment that would
otherwise have been required to be made shall be made at the time of and
together with the next subsequent adjustment which, together with any adjustment
or adjustments so carried forward, shall amount to not less than one percent
(1%) of the Warrant Price in effect immediately before the event giving rise to
such next subsequent adjustment.

       

      h.    Duration of
Adjustment.  Following each computation or readjustment as
provided in this Section 5, the new adjusted Warrant Price and number of shares
of Warrant Stock purchasable upon exercise of this Warrant shall remain in
effect until a further computation or readjustment thereof is
required.

       

      6.            
Redemption. This
Warrant may be redeemed prior to the Expiration Date, at the option of the
Company, at a price of $0.001 per share of Warrant Stock (“Redemption Price”),
upon not less than 10 days prior written notice to the Holder notifying the
Holder of the Company’s intent to exercise such right and setting forth a time
and date for such redemption; provided, however, that no redemption under this
Section 6 may occur unless the Company’s Common Stock has had a closing sales
price greater than $3.00 per share, as adjusted for any stock splits, stock
combinations, stock dividends and other similar events, for thirty (30)
consecutive trading days. This Warrant may be exercised by Holder, for cash, at
any time after notice of redemption has been given by the Company and prior to
the time and date fixed for redemption. On and after the redemption date, the
Holder shall have no further rights except to receive, upon surrender of this
Warrant, the Redemption Price.

       

      7.            
Notice to
Holders.

       

      a.    Notice of Record
Date.  In case:

       

      (i) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend (other than a cash dividend
payable out of earned surplus of the Company) or other distribution, or any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right;

       

       

      
        
          
          

        

        
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      (ii) of any
capital reorganization of the Company, any reclassification of the capital stock
of the Company, any consolidation with or merger of the Company into another
corporation, or any conveyance of all or substantially all of the assets of the
Company to another corporation; or

       

      (iii) of any
voluntary dissolution, liquidation or winding-up of the Company;

       

      then, and
in each such case, the Company will mail or cause to be mailed to the Holder
hereof at the time outstanding a notice specifying, as the case may be, (i) the
date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, is to be fixed, as of which
the holders of record of Common Stock (or such stock or securities at the
time receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution or winding-up. Such notice shall
be mailed at least thirty (30) days prior to the record date therein specified,
or if no record date shall have been specified therein, at least thirty (30)
days prior to such specified date, provided, however, failure to provide any
such notice shall not affect the validity of such transaction.

       

      b. Certificate of
Adjustment. Whenever any adjustment shall be made pursuant to Section 5
hereof, the Company shall promptly make a certificate signed by its Chairman,
Chief Executive Officer, President, Vice President, Chief Financial Officer or
Treasurer, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated and the Warrant Price and number of shares of Warrant Stock
purchasable upon exercise of this Warrant after giving effect to such
adjustment, and shall promptly cause copies of such certificates to be mailed
(by first class mail, postage prepaid) to the Holder of this
Warrant.

       

      8.            
Loss, Theft, Destruction or
Mutilation.  Upon receipt by the Company of evidence
satisfactory to it, in the exercise of its reasonable discretion, of the
ownership and the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, of indemnity reasonably satisfactory to
the Company and, in the case of mutilation, upon surrender and cancellation
thereof, the Company will execute and deliver in lieu thereof, without expense
to the Holder, a new Warrant of like tenor dated the date hereof.

       

      9.           
Warrant Holder Not a
Stockholder.  The Holder of this Warrant, as such, shall not be
entitled by reason of this Warrant to any rights whatsoever as a stockholder of
the Company.

       

      10.          
Notices.  Any
notice required or contemplated by this Warrant shall be deemed to have been
duly given if transmitted by registered or certified mail, return receipt
requested, or nationally recognized overnight delivery service, to the Company at its
principal executive offices located at Level 34, 50 Bridge Street, Sydney, New
South Wales 2000, Australia, Attention: Chief Executive Officer, or to the
Holder at the name and address set forth in the Warrant Register maintained by
the Company.

       

       

      
        
          
          

        

        
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      11.         
Choice of
Law.  THIS WARRANT IS ISSUED UNDER AND SHALL FOR ALL PURPOSES
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW.

       

      12.          
Jurisdiction and
Venue.  The Company and Holder hereby agree that any dispute
which may arise between them arising out of or in connection with this Warrant
shall be adjudicated before a court located in New York County, New York and
they hereby submit to the exclusive jurisdiction of the federal and state courts
of the State of York located in New York County with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Warrant or any acts or
omissions relating to the sale of the securities hereunder, and consent to the
service of process in any such action or legal proceeding by means of registered
or certified mail, return receipt requested, in care of the address set forth
herein or such other address as either party shall furnish in writing to the
other.

       

       

       

      
        
          
          

        

        
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      IN
WITNESS WHEREOF, the Company has duly caused this Warrant to be signed on its
behalf, in its corporate name and by its duly authorized officers, as of this
____ day of May, 2010.

       

      VOLCAN HOLDINGS, INC.

       

      By:_______________________________

             Name:

             Title:

       

       

       

       

       

      
        
          
          

        

        
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      NOTICE
OF EXERCISE

       

      
        	
                TO:

              	
                Volcan
      Holdings, Inc.

              


      

      
        	
                 
      

              	
                Level
      34

              


      

      
        	
                 
      

              	
                50
      Bridge Street

              


      

      
        	
                 
      

              	
                Sydney,
      New South Wales 2000

              


      

      
        	
                 
      

              	
                Australia

              


      

      
        	
                 
      

              	
                Attn:
      President

              


      

      
        	
                 
      

              	
                Tel:
      +61-2-8216-0777

              


      

      


      (1) The
undersigned hereby elects to purchase ______________ shares of Warrant Stock of
the Company pursuant to the terms of the attached Warrant to Purchase Common
Stock, and tenders herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any.

       

      (2) Please
issue a certificate or certificates representing said shares of Warrant Stock in
the name of the undersigned or in such other name as is specified
below:

       

       

       

        
          

        

      

      


       The
shares of Warrant Stock shall be delivered to the following DWAC Account Number,
if permitted, or by physical delivery of a certificate to:

       

      
        
          

        

         

        
          

        

         

        
          

        

         

      

      (3) The
undersigned is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act of 1933, as amended.

       

       

       

       

       

       

      
        
          
          

        

        
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      [SIGNATURE
OF HOLDER]

       

       

      
        
          	
                  Name
      of Investing Entity:

                	 
      
	
                   

                  Signature
      of Authorized Signatory of Investing Entity:

                	 
      
	
                   

                  Name
      and Title of Authorized Signatory:

                	 
      
	
                   

                  Date:

                	 
      


        

      

       

                                                                                                           

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
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      ASSIGNMENT
FORM

       

      (To
assign the foregoing warrant, execute

       

      this form
and supply required information.

       

      Do not
use this form to exercise the warrant.)

       

           FOR
VALUE RECEIVED, all of or   shares of the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to

       

                                                                            
whose address is

       

       

        
          

        

         

        
          
            

          

        

      

      


        Dated:  __________,
        

       

      
        
          	
                  Holder’s
      Name:

                	 
      
	
                   

                  Holder’s
      Signature:

                	 
      
	
                   

                  Name
      and Title of Signatory:

                	 
      
	
                   

                  Holder’s
      Address:

                	 
      
	
                   

                  Signature
      Guaranteed:

                	 
      


        

      

       

      NOTE:  The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.