wayne-l0-17-03-NDLLC warrant-a.

txc
From : wbtlcapital @aol .com
Sent: Friday, Oc tober 17, 2003 1 : 12 PM
To: clinton Ba l linger; George wi l l i ams
subject : NDllC Warrant
At t achments: NDLlC Warrant.DOC
Fel l as: Atta ched please f ind draft warrant for NOLLe. I wil'j revise when I see
paperwork f ro m Bruno membe r item that drives th e ves t ing, Wayne

Page 1 GOVERNMENT
EXHIBIT

GD-81
 Draft 10/17/03

THIS WA R RAN T AND ANY SEC URI TI ES ACQUIRED UPON EX ERC IS E OF T1--HS WARRA 'T
HAV E NOT BEE REGI ST ERED UNDER THE S EC URJ TIES ACT O F 1933, AS AMENDED (n- IE
"S ECURITIES AC T "), OR TH E S ECURITIES LA W S OF ANY STATE. NE IT HER THIS
WARRANT, S CH SECURITIES NOR ANY INT ERE ST THEREIN MAYB E TRANSFERRED
EX C EPT PUR S UANT TO AN EF FEC T IV E REGISTRATION STATEM EI T UNDER T HE
SEC URITfES ACT AND APPLICA BL E STATE S EC URI TI ES LAWS OR PUR S UANT TO AN
APPLICABL E EXEM PT ION FROM THE R.EGISTRA TION REQUIREMENTS OF T HE SE CURJTJES
ACT AND SUCH STATE SECURITIES LAWS.

EVIDENT TECHNOLOGI ES, INC.

[FORM OF WARRA T TO PURCHASE SHARES OF COMMON STOCK]

T his warrant (this "Warrant") certifies that, for good and valuable consideration.
Evident Technologies, Inc., a Delaware corporation (the "Company"), granrs to Ni s kayuna Development
LLC or its permitted assigns (the "Warrantholder"), the right to subscri be fo r and purchase from the
Company, at any time durin g the Exe rc ise Pe riod (as defined herein), up to 85 ,423 shares of Common
Stock (the "Warrant Shares '), at the exerc ise price per share of$4.80 (the "Exercise Price"), all subject
to the terms, conditions and adju stments herein set forth . The number of Warrant Shares is subj ect to
adjustment as provided in Article III.

This Warrant is being issued against delivery of tile Warrantholder 's payment to the
Company of th e $10,000 purchase price of thi s Warranl.

I. DEFINITIONS

1.1. Definitions. As used herein, unless the context otherwise requires, the following
terms have the following respcctiv L' meanings:

"A ffiliate" wi th respect to any Person, shall mean any other Person that directly
or indirectly, controls, is controlled by , or is under common control with , such Person.

"Business Day" means any day other Ulan a Saturday, Sunday or a day on which
nat ional ban ks are authorized by law to cl ose ill the State of New York.

"Closing Price" of a share of Common Stock for any day shall mean the last
reported sales price, regular way, or, in the event that no sale takes pla ce on such day, the average of the
reported cl os ing bid and asked pri ces, reg ular way, in either case as reported on the principal nat io na l
securit ies exc hange on which su ch Co m mo n Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national e curities exchan ge, on the Nasdaq Na t io na l Markel System or the
Na sdaq SmallCap Market or. if such sec urity is not quoted on the N asdaq National Market System or the
N asdaq Sma llCap Market. the average o f the closing bid and asked prices on each such day in the over-
the-counter marke t as reported by N asda q or, if bid and asked prices for such security on each s uc h day
shall not have been reported by Na sdaq, the average of the bid and ask ed prices for su ch clay as furn ished
by any reputable inve stment bank ing ti m) regularly making a market in s uc h security se lected for such
purpose by the Board of Directors of the Company or a committee thereof. I f the Closin g Pri ce cannot be
calculated on such date on any of the foregoing bases, the C los ing Price of such security 0 11 s uch dat e
shall be the fair market value as reasonably determined by an Inde pe ndent Financial Expert se lec ted for
su ch purpose by the Board of Directors of the Company or a co m mittee the reo f.
 "Common Stock" means the common stock, par value $0.0 I per share, of the
Company.

"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.

"Governmental Authoritv" means any foreign, federal, state, local or other

governmental authority or regulatory body having jurisdiction over rhe Company, its Affiliates or the
Warrantholder.

"Independent Financial Expert" means a nationally recognized investment

banking firm that does not (and whose directors, officers, employees and Affiliates do not) have a direct
or indirect financial interest in the Company or any of its Affiliates, that has not been and at the time it is
called upon to give independent financial advice to the Company is not (and none of whose directors,
offic er, employees or Affiliates is) a promot er, director or officer of the Company or any of its Affiliates,
and that does not provide any advice or opinions to the Company or any of its Affiliates.

"Person" means any indiv iduaI, firm, corporat ion, partnership, limited I iabi I ity
company. trust, incorporated or unincorporated association, joint venture, joint stock company,
governmental authority or other entity of any kind, and shall include any successor (by merger or
otherwise) of such entity.

"Secu rities Act" means the Sec urities Act of 1933, as amended from time to
time.

IT. EXERCISE OF WARRANT

2.1. Vesting. The Warrant Shares underlying this Warrant shall vest in three
installment s as follows: (i) 28,475 Warrant Shares shall be immediately vested upon the issuance of this
Warrant, (ii) 28,474 Warrant Shares shall vest on the day that the Company receives the second
installment of [New York State funding] and (iii) 28,474 Warrant Shares on the day that the Company
receives the third installment of [NYS Funding].

2.2. Exercise Period. On the terms and subj ect to the conditions contained herein,
the Warrantholder may exercise the vested portion of this Warrant on any Business Day starting on
[ ], 2003 and ending at 5:00 p.m.. Eastern Standard Time, on , 20 10 (the
" Exer cise Period"), for all or any part of the vested Warrant Shares.

2.3. Exercise Procedure. To exercise any vested portion of this Warrant, the
Warrantholder shall deliver to the Company at its principal executive offices: (a) payment of the
aggregate Exercise Price in the manner provided in Section 2.3 (as computed by multiplying (A) the
Exercise Price by (8) the number of shares of Common Stock for which the Warrantholdcr is exercising
this Warrant at such time); (b) a completed and properly executed Notice of Exercise in substant ially the
form attached hereto as Annex I; and (c) this Warrant. Upon receipt of the aggregate Exercise Price and
the requ ired del iverables pursuant to the preced ing sent enc e, the Company shal I, with in three (3) Business
Days thereafter, subject to receipt of any required regulatory approvals (including expiration of any
required waiting period), deliv er to the Warrantholder duly executed certificate(s) repres enting the
aggrega te number of shares of Comm on Stock issuable upon such exercise, together with cash in lieu of
any fraction of a Warrant Shar e as provided in Section 2.6. Such stock certificate(s) shall be in such
denominati ons and registered in the narne(s) as the Warranth oJder shall request in the Notice of Exercise.
If this Warrant shall have been exercised in part, the Co mpany shall deliver to the Warrantholder a new