Exhibit 4
WARRANT
Granted by
WINGRA TECHNOLOGIES, LLC
a Wisconsin limited liability company
(hereinafter called the "Company")
to
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(hereinafter called the "Holder")
THIS WARRANT, AND THE UNITS WHICH MAY BE
ACQUIRED IN ACCORDANCE HEREWITH,
CONSTITUTE SECURITIES. NEITHER THIS
WARRANT NOR THE UNITS WHICH MAY BE
ACQUIRED IN ACCORDANCE HEREWITH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT"), OR UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THEY HAVE BEEN REGISTERED UNDER
THE ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS, OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
For valuable consideration, the receipt of which is hereby
acknowledged, the Company hereby grants to the Holder the following warrant (the
"Warrant"):
1. Grant of Warrant. Subject to the terms and provisions hereinafter
set forth, the Holder is hereby given the right and option to purchase from the
Company at the exercise price of ___________________ Dollars
($___________________) per Unit, and pursuant to the terms and provisions set
forth herein, an aggregate of ___________________ (___________________) Units of
the Company (as the term "Units" is defined in the Company's Operating
Agreement, as amended and/or restated from time to time (the "Operating
Agreement")).
The Holder shall have the right and option to purchase any or all of
the Units with respect to which this Warrant is granted, upon notice and payment
of the exercise price as set forth hereinafter, and such right and option to
purchase shall continue until it expires by lapse of time or as otherwise
provided in this Warrant. This Warrant may only be exercised at such time as the
Holder is an "accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as amended.
In no event shall this Warrant be exercisable as to any Units after the
expiration of three (3) years from the date of the grant of this Warrant, and
after such period of time, this Warrant shall immediately expire.
2. Exercise of Warrant. This Warrant shall be exercised by the delivery
of written notice to the Company setting forth the number of Units with respect
to which this Warrant is to be exercised together with cash, certified check,
bank draft or postal or express money order payable to the order of the Company
in an amount equal to the exercise price of such Units.
In the event that the Holder desires to exercise this Warrant, then the
Holder shall execute a Notice of Exercise in substantially the form of Exhibit A
attached hereto and shall deliver to the Company such Notice of Exercise and the
consideration required for such exercise.
If the Holder exercises this Warrant and pays the consideration with
respect to such exercise as provided for and required by this Section 2, then
the Holder shall become a Member of the Company with all the rights of a Member,
and subject to all of the duties and obligations of a Member, as set forth in
the Company's Operating Agreement.
3. Investment Representations. In the event the Units issuable on
exercise of this Warrant are not registered under the Securities Act of 1933 (as
now in effect or hereafter amended), then in such event, as a condition
precedent to any exercise of this Warrant, the Holder shall deliver to the
Company investment representations in form satisfactory to the Company's counsel
which shall contain, among other matters, a statement in writing that this
Warrant is then being exercised only with a view to investment in, and not with
a view to the disposition of, the Units with respect to which this Warrant is
then being exercised; that the Holder and/or its attorneys, accountants, and/or
advisors have had a reasonable opportunity to investigate the Company and have
sufficient knowledge of the Company's then current activities and financial
condition to enable such person(s) to make an informed decision as to whether to
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make an investment in the Company; and that the Holder believes that the nature
and amount of the Units being purchased by it are consistent with its investment
objectives and resources. Except as may be otherwise provided in an applicable
registration rights agreement, the Company shall not be obligated to register
the Units covered by this Warrant.
4. Units Subject to Company's Operating Agreement. All Units issued
pursuant to the exercise of this Warrant shall be subject to all terms and
provisions of the Company's Operating Agreement.
5. Changes in the Company's Capital Structure. The existence of this
Warrant shall not affect in any way the right or power of the Company or its
Board or Members to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, warrants or other rights affecting the Company's Units or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other act or
proceeding, whether of a similar character or otherwise.
If, with respect to all issued and outstanding Units of the Company,
generally, the Company shall effect a subdivision or consolidation of Units or
other capital readjustment, the payment of a Unit dividend, or other increase or
reduction of the number of Units outstanding, without receiving compensation
therefor in money, services or property, then the number, class, and per share
exercise price of Units subject to this Warrant shall be appropriately adjusted
in such a manner as to entitle the Holder to receive upon exercise of this
Warrant, for the same aggregate cash consideration, the same total number and
class of Units as it would have received as a result of the event requiring the
adjustment had it exercised this Warrant in full immediately prior to such
event.
After a merger of one or more entities into the Company, or after a
consolidation of the Company and one or more entities in which the Company shall
be the surviving entity, the Holder shall, at no additional cost, be entitled
upon exercise of this Warrant to receive (subject to any required action by the
Company's Board and/or Members) in lieu of the number of Units as to which this
Warrant shall then be so exercised, the number of Units or other securities to
which the Holder would have been entitled pursuant to the terms of the agreement
of merger or consolidation if, immediately prior to such merger or
consolidation, the Holder had been the holder of record of a number of Units
equal to the number of Units as to which this Warrant shall then be so
exercised.
If the Company is merged into or consolidated with another entity under
circumstances where the Company is not the surviving entity, or if the Company
is dissolved and liquidated, or sells or otherwise disposes of substantially all
its assets to another entity (except in connection with the conversion of the
Company to a corporation as set forth below) while this Warrant remains
outstanding, the Holder shall be entitled, upon exercise of this Warrant
(whether before or after the effective date of such merger, consolidation,
dissolution, sale or other disposition), to receive in lieu of Units,
consideration identical to that which he or she would have been entitled
pursuant to the terms of the agreement of merger, consolidation,
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dissolution, sale or other disposition if, immediately prior to such merger,
consolidation, dissolution, sale or other disposition, it had been the holder of
record of a number of Units equal to the number of Units as to which this
Warrant shall then be so exercised.
In the event of a merger which provides for the redemption of Units (a
"cash-out merger") of the same class as the Units which the Holder would be
entitled to receive upon exercise of this Warrant, whether or not the Company is
the surviving corporation, then, (a) if this Warrant is exercised, Units
acquired as a result of such exercise shall be redeemed in the same manner as
other Units in the same class, and (b) if not exercised, this Warrant shall
terminate as of the effective date of such cash-out merger.
In the event that the Company's Board and/or Members vote to convert
the Company to a corporation (the "Corporate Successor"), the Holder shall be
entitled, upon exercise of this Warrant, to receive in lieu of Units, the number
of shares of stock of the Corporate Successor to which the Holder would have
been entitled if immediately prior to such conversion, the Holder had been the
holder of record of the number of Units as to which this Warrant shall then be
so exercised.
Except as hereinbefore expressly provided, the issue by the Company of
Units for cash or property or for labor or services, either upon direct sale or
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of Units or obligations of the Company convertible into Units or
other securities, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of Units then subject to this Warrant.
6. Non-Transferability of Warrant. This Warrant is not transferable by
the Holder and no interest in this Warrant may (either directly, indirectly, by
operation of law, or in any other manner) be sold, assigned or pledged by the
Holder; except that this Warrant may be transferred or assigned to one or more
parent, subsidiary or affiliate entities of the Holder, or by operation of law
in connection with any merger, consolidation or sale of all or substantially all
of its assets; and further provided that no transfer or assignment of this
Warrant or the rights granted hereunder shall be effective unless the transferee
or assignee is an "accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as amended.
In the event that this Warrant is transferred or assigned in accordance
with the terms and provisions of this Section 6, then upon exercise of this
Warrant, the Holder shall execute and deliver to the Company, in addition to an
applicable Notice of Exercise and as a condition to the acceptance by the
Company of any such exercise, an Addendum to Amended and Restated Operating
Agreement in substantially the form of Exhibit B attached hereto.
7. Provision of Information. The Holder shall be given access to
information concerning the Company equivalent to that information generally made
available to the Company's Interest Holders.
8. No Rights as Member or Interest Holder. The Holder shall have no
rights as a Member or Interest Holder of the Company with respect to Units
purchasable under this Warrant until the date of proper exercise of this Warrant
and the full payment of the exercise price in accordance with the provisions of
Section 2 hereof.
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9. Notices. Any and all notices or any other communication related to
this Warrant shall be given in writing either by personal delivery, by a
recognized courier service, or by registered or certified mail, return receipt
requested, with postage prepaid, and addressed as set forth below, or to such
other address for notice as either party shall have last furnished in writing to
the other party.
If to the Company:
Wingra Technologies, LLC
Attention: Xxx Xxxx, President
000 Xxxxxxx Xxxxx, Xxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
If to the Holder:
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Any such communication shall be deemed delivered (i) in the case of
personal or courier service delivery, on the date when so delivered; or (ii) in
the case of certified or registered mail, three (3) days after the date when
deposited in the. United States mail with sufficient postage to effect such
delivery.
10. Governing Laws. This Warrant is subject to all laws, regulations
and orders of any governmental authority which may be applicable thereto and,
notwithstanding any 'of the provisions hereof, the Holder may not exercise this
Warrant nor will the Company be obligated to issue any Units hereunder if the
exercise of this Warrant or the issuance of such Units, as the case may be,
would constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof.
11. Suspension of Exercise Right. Any other provision contained herein
notwithstanding, the Company may at any time and from time to time and for any
reason, suspend the right to exercise this Warrant for a specified period of
time; provided, however, that this Warrant shall not be suspended (a) for a
period exceeding one hundred eighty (180) consecutive days, (b) during the final
twelve (12) months prior to its scheduled expiration date, or (c) as of the
effective date of a cash-out merger.
12. Limitations on Resale. This Warrant and the Units which may be
acquired upon exercise of this Warrant (the "Securities") have been offered to
the Holder in reliance upon one or more exemptions from registration under the
Securities Act of 1933, as amended (the "Act"), including, without limitation,
the exemption established by Rule 506 of Regulation D promulgated pursuant to
the Act and other exemptions from registration under the Act. Therefore, the
Securities may be "restricted securities" as that term is defined in Rule
230.144 promulgated under the Act and any resale of the Securities may require
compliance with the registration requirements of the Act or an exemption from
such requirements.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date of grant set forth below.
WINGRA TECHNOLOGIES, LLC
By:
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Xxx Xxxx, President
By:
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Xxxxx Xxxxxxxxx, Secretary
Date of Grant: ___________________.
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EXHIBIT A
EXERCISE NOTICE
Wingra Technologies, LLC
000 Xxxxxxx Xxxxx, Xxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: President
1. _______ Exercise of Warrant. The undersigned ("Purchaser") hereby
elects to purchase [insert number] Units (the "Units") of Wingra Technologies,
LLC (the "Company") under and pursuant to the Warrant dated ___________________
and granted by the Company to Purchaser (the "Warrant"). The exercise price for
the Units is $___________________ per Unit, as provided for in the Warrant.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full exercise price for the Units in the amount of $________________ .
3. Representations of Purchaser. Purchaser hereby acknowledges that
Purchaser has previously received and read and Purchaser understands the Warrant
and agrees to abide by and be bound by its terms and provisions. Purchaser
hereby also acknowledges that Purchaser has previously received and read and
Purchaser understands the Operating Agreement referred to in the Warrant.
4. Tax Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Units. Purchaser represents that Purchaser has consulted with any tax
consultants that Purchaser deems advisable in connection with the purchase
and/or disposition of the Units and that Purchaser is not relying on the Company
for any tax advice.
5. Securities Representations and Warranties. Purchaser represents and
warrants that:
(a) Purchaser understands that the Units have not been
registered under the Securities Act of 1933, as amended, or under the Wisconsin
Uniform Securities Law, by reason of their issuance in a transaction exempt from
the registration requirements thereof;
(b) Purchaser is acquiring the Units for investment for
Purchaser's own account, not on behalf of others, and not with a view to resell
or otherwise distribute the Units;
(c) Purchaser will not attempt to resell or otherwise
distribute the Units except in compliance with the registration, anti-fraud, and
other material provisions of all applicable securities laws;
(d) Xxxxxxxxx believes that the Units being purchased by
Purchaser are
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consistent with Purchaser's investment objectives and resources; and
(e) Purchaser and/or Purchaser's attorneys, accountants and/or
advisors have had reasonable opportunity to investigate the Company and have
sufficient knowledge of the Company's current activities and financial condition
to enable Purchaser to make an informed decision as to whether to make an
investment in the Company.
Dated
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Submitted by: Accepted by:
PURCHASER WINGRA TECHNOLOGIES, LLC
By: By:
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Signature
Its:
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Print name/Title
Address: Address:
000 Xxxxxxx Xxxxx, Xxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000-1056
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EXHIBIT B
ADDENDUM TO OPERATING AGREEMENT
WINGRA TECHNOLOGIES, LLC
WHEREAS, the Members of Wingra Technologies, LLC, a Wisconsin limited
liability company (the "Company"), have entered into an Operating Agreement (the
"Operating Agreement") dated as of January 26, 1999; and
WHEREAS, pursuant to the terms and provisions of a Warrant granted to
the undersigned by the Company on December 1, 1999, the undersigned has
exercised its right and option to acquire ________________ [insert number] Units
( as the term "Unit" is defined in the Operating Agreement) of the Company; and
WHEREAS, as a condition to the undersigned becoming a Member of the
Company, the undersigned has agreed to execute this Addendum; and
WHEREAS, the undersigned acknowledges that the undersigned has received
and has thoroughly reviewed a copy of the Operating Agreement;
NOW, THEREFORE, acknowledging consideration, the undersigned hereby
acknowledges and agrees that the undersigned shall become a Member of the
Company, effective upon the acceptance of this Addendum by the Company; that the
undersigned shall be bound by all of the terms and provisions of the Operating
Agreement to the same extent as if the undersigned were a signatory to the
original Operating Agreement; and that the Units issued to the undersigned are
subject to all of the terms and provisions of the Operating Agreement.
Dated .
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[name of Holder]
Accepted by Company:
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President
Date of acceptance:
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