Exhibit E
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD,
OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF,
UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE SECURITIES
ACT OR AN OPINION OF COUNSEL IS OBTAINED STATING THAT SUCH
DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
May 2, 2000
XXXXXX INDUSTRIES INC.
(Incorporated under the laws of the State of Florida)
Warrant for the Purchase of Shares of Common Stock
No. WRT-1
FOR VALUE RECEIVED, XXXXXX INDUSTRIES INC., a Florida
corporation (the "Company"), hereby certifies that Hanseatic
Americas LDC or assigns (the "Holder") is entitled, subject to
the provisions of this Warrant, to purchase from the Company, up
to one hundred eighty-one thousand eight hundred and eighteen
(181,818) fully paid and non-assessable shares of Common Stock at
a price of $5.50 per share (the "Exercise Price").
The term "Common Stock" means the Common Stock, par value
$.001 per share, of the Company as constituted on May 2, 2000
(the "Base Date"). The number of shares of Common Stock to be
received upon the exercise of this Warrant may be adjusted from
time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, and as adjusted from time
to time, are hereinafter referred to as "Warrant Stock." The term
"Other Securities" means any other equity or debt securities that
may be issued by the Company in addition thereto or in
substitution for the Warrant Stock in accordance with the terms
hereof. The term "Company" means and includes the corporation
named above as well as (i) any immediate or more remote successor
corporation resulting from the merger or consolidation of such
corporation (or any immediate or more remote successor
corporation of such corporation) with another corporation, or
(ii) any corporation to which such corporation (or any immediate
or more remote successor corporation of such corporation) has
transferred its property or assets as an entirety or
substantially as an entirety.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation
of this Warrant, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date. Any
such new Warrant executed and delivered shall constitute an
additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed or
mutilated shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is
issued, and all the rights hereunder shall be held subject to,
all of the conditions, limitations and provisions set forth
herein.
1. Exercise of Warrant.
1.1 Cash Exercise. This Warrant may be exercised, in
whole or in part, at any time, or from time to time during the
period commencing on the date hereof and expiring 5:00 p.m.
Eastern Time on May 2, 2005 (the "Expiration Date"), by
presentation and surrender of this Warrant to the Company at its
principal office, or at the office of its stock transfer agent,
if any, with the Warrant Exercise Form attached hereto duly
executed and accompanied by payment (either in cash or by
certified or official bank check, payable to the order of the
Company) of the Exercise Price for the number of shares specified
in such form and instruments of transfer, if appropriate, duly
executed by the Holder or his or her duly authorized attorney. If
this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder. Upon
receipt by the Company of this Warrant, together with the
Exercise Price, at its office, or by the stock transfer agent of
the Company at its office, in proper form for exercise, the
Holder shall be deemed to be the holder of record of the shares
of Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of the Company shall then be closed or
that certificates representing such shares of Common Stock shall
not then be actually delivered to the Holder. 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.
1.2 Cashless Exercise. This Warrant may be exchanged,
in whole or in part (a "Warrant Exchange"), at any time, or from
time to time, during the period commencing on the date hereof and
ending on the Expiration Date, into the number of shares of
Common Stock determined in accordance with this Section 1.2, by
presentation and surrender of this Warrant to the Company at its
principal office, or at the office of its stock transfer agent,
if any, accompanied by a notice (a "Notice of Exchange") stating
that this Warrant is being exchanged and the number of shares of
Common Stock to be exchanged. In connection with any Warrant
Exchange, this Warrant shall represent the right to subscribe for
and acquire the number of shares of Common Stock (rounded to the
nearest whole number) equal to (i) the number of shares specified
by the Holder in its Notice of Exchange (the "Total Number") less
the number of shares equal to the quotient obtained by dividing
(A) the product of the Total Number and the then applicable
Exercise Price by (B) the then fair market value (determined in
accordance with Section 3 below) per share of Common Stock. If
this Warrant should be exchanged in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder.
Upon receipt by the Company of this Warrant, together with a duly
executed Notice of Exchange, at its office, or by the stock
transfer agent of the Company at its office, the Holder shall be
deemed to be the holder of record of the shares of Common Stock
issuable upon such exchange, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder. 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 exchange of this Warrant.
2. Reservation of Shares. The Company will at all times
reserve for issuance and delivery upon exercise of this Warrant
all shares of Common Stock or other shares of capital stock of
the Company (and Other Securities) from time to time receivable
upon exercise of this Warrant. All such shares (and Other
Securities) shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and non-assessable
and free of all preemptive rights.
3. Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise
of this Warrant, but the Company shall pay the Holder an amount
equal to the fair market value of such fractional share of Common
Stock in lieu of each fraction of a share otherwise called for
upon any exercise of this Warrant. For purposes of this Warrant,
the fair market value of a share of Common Stock shall be
determined as follows:
(a) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges on
such exchange or listed for trading on the NASDAQ system, the
current market value shall be the last reported sale price of the
Common Stock on such exchange or system on the last business day
prior to the date of exercise of this Warrant or if no such sale
is made on such day, the average of the closing bid and asked
prices for such day on such exchange or system; or
(b) If the Common Stock is not so listed or admitted
to unlisted trading privileges, the current market value shall be
the mean of the last reported bid and asked prices reported by
the National Quotation Bureau, Inc. on the last business day
prior to the date of the exercise of this Warrant; or
(c) If the Common Stock is not so listed or admitted
to unlisted trading privileges and bid and asked prices are not
so reported, the current market value shall be an amount, not
less than book value thereof as at the end of the most recent
fiscal year of the Company ending prior to the date of the
exercise of the Warrant, determined by the Board of Directors of
the Company in good faith.
4. Exchange, Transfer, Assignment or Loss 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,
subject to the provisions of Section 7 hereof, 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. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the
Company, either at law or in equity, and the rights of the Holder
are limited to those expressed in this Warrant.
6. Anti-Dilution Provisions.
6.1 Adjustment for Recapitalization. If the Company
shall at any time subdivide its outstanding shares of Common
Stock (or Other Securities at the time receivable upon the
exercise of the Warrant) by recapitalization, reclassification or
split-up thereof, or if the Company shall declare a stock
dividend or distribute shares of Common Stock to its
shareholders, the number of shares of Common Stock subject to
this Warrant immediately prior to such subdivision shall be
proportionately increased and the Exercise Price shall be
proportionately decreased, and if the Company shall at any time
combine the outstanding shares of Common Stock by
recapitalization, reclassification or combination thereof, the
number of shares of Common Stock or Other Securities subject to
this Warrant immediately prior to such combination shall be
proportionately decreased and the Exercise Price shall be
proportionately increased. Any such adjustments pursuant to this
Section 6.1 shall be effective at the close of business on the
effective date of such subdivision or combination or if any
adjustment is the result of a stock dividend or distribution then
the effective date for such adjustment based thereon shall be the
record date therefor.
6.2 Adjustment for Reorganization, Consolidation,
Merger, Etc. In case of any reorganization of the Company (or
any other entity, the securities of which are at the time
receivable on the exercise of this Warrant) after the Base Date
or in case after such date the Company (or any such other entity)
shall consolidate with or merge into another entity or convey all
or substantially all of its assets to another entity, then, and
in each such case, the Holder of this Warrant upon the exercise
thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the
securities and property receivable upon the exercise of this
Warrant prior to such consummation, the securities or property to
which such Holder would have been entitled upon such consummation
if such Holder had exercised this Warrant immediately prior
thereto; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the
exercise of this Warrant after such consummation.
6.3 No Dilution.
(a) From the date of issuance of this Warrant
until the later of (1) the first anniversary of the date of such
issuance and (2) the date on which the Company first consummates
a sale of shares of its equity securities (within the meaning of
Section 3(a)(11) of the Securities Exchange Act of 1934, as
amended) or debt securities convertible into equity securities
for gross cash proceeds to the Company of more than $2.0 million
(such period through such later date, the "Reset Period") other
than Excluded Shares (as hereinafter defined), if the Company
shall issue or enter into any agreement to issue any shares of
Common Stock other than Excluded Shares for consideration per
share (the "Issuance Price") less than the Exercise Price per
share in effect immediately prior to such issuance, the Exercise
Price in effect immediately prior to such issuance shall be
reduced (but shall not be increased) to the Issuance Price. For
purposes hereof, the term "Excluded Shares" shall mean (1) any
shares of Common Stock issued in a transaction described in
Sections 6.1 and 6.2 of this Warrant; (2) issuances of shares of
Common Stock from time to time pursuant to employment agreements,
stock option or bonus plans authorized by the Board of Directors
of the Corporation as of the date hereof, (3) issuances of Common
Stock, or options to acquire shares of Common Stock, or
securities convertible into or exchangeable for Common Stock
pursuant to the terms of any acquisition by the Company of all or
substantially all of the operating assets, or more than fifty
percent (50%) of the voting capital stock or other controlling
interest of any business entity in a transaction negotiated on an
arms-length basis and expressly approved in advance by the Board
of Directors of the Company; (4) issuances of shares of Common
Stock from time to time upon the exercise, exchange or conversion
of warrants, options, convertible securities, the Company's
outstanding 8-1/4% Subordinated Convertible Notes Due 2003 or other
securities outstanding as of the date hereof and pursuant to the
written terms of such securities as they exist as of the date
hereof, and (5) issuances of shares of Common Stock from time to
time pursuant to the anti-dilution provisions of other securities
of the Company, including shares of the Company's outstanding
Series B, Series C and Series D Convertible Preferred Stock. For
purposes hereof, "voting capital stock" shall be deemed to be
capital stock of any class or classes, however designated having
ordinary voting power for the election of members of the board of
directors or other governing body and "controlling" shall mean
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a party,
whether through the ownership of voting capital stock, by
contract or otherwise.
(b) If, at any time subsequent to the Reset
Period and prior to the first anniversary of the expiration of
the Reset Period, the Company consummates a sale of shares of its
Common Stock other than Excluded Shares for consideration per
share of Common Stock less than the Exercise Price per share in
effect immediately prior to such issuance, the Conversion Price
in effect immediately prior to such issuance shall be reduced
(but shall not be increased) to the price (calculated to the
nearest cent) determined: by dividing (1) an amount equal to the
sum of (A) the number of shares of Common Stock outstanding on a
fully diluted basis immediately prior to such issuance multiplied
by the Exercise Price per share in effect immediately prior to
such issuance and (B) the consideration, if any, received by the
Corporation upon such issuance by (2) the number of shares of
Common Stock outstanding on a fully diluted basis immediately
after such issuance.
(c) If, at any time from the date of issuance of
this Warrant prior to the first anniversary of the expiration of
the Reset Period, the Company shall issue or enter into any
agreement to issue any shares of Common Stock other than Excluded
Shares for consideration per share greater than the Exercise
Price but lower than the market price per share in effect
immediately prior to such issuance, the Exercise Price in effect
immediately prior to such issuance shall be reduced (but shall
not be increased) to the price (calculated to the nearest cent)
determined by multiplying the Exercise Price in effect
immediately prior to such issuance by the factor determined by
dividing (1) an amount equal to the sum of (A) the number of
shares of Common Stock outstanding on a fully diluted basis
immediately prior to such issuance multiplied by the market price
per share in effect immediately prior to such issuance and (B)
the consideration, if any, received by the Company upon such
issuance by (2) the number of shares of Common Stock outstanding
on a fully diluted basis immediately after such issuance
multiplied by the market price per share in effect immediately
prior to such issuance; provided, however, no adjustment shall be
made to the Exercise Price if (1) such issuance is in connection
with a firm commitment underwritten public offering or (2) the
consideration per share is equal to or greater than 85% of the
market price per share in effect immediately prior to such
issuance. For purposes hereof, the "market price" as of any
measurement date shall be the average of the closing prices of
the Common Stock for each of the 10 consecutive trading days
immediately preceding such measurement date.
(d) The Company will not, by amendment of its
Articles of Incorporation or through reorganization,
consolidation, merger, dissolution, issue or sale of securities,
sale of assets or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the
rights of the Holder of this Warrant against dilution or other
impairment.
(e) For further clarity, any change to the
conversion price or other terms of the 8-1/4% Subordinated
Convertible Notes Due 2003 shall not count toward determining the
Reset Period, but shall be taken into account in determining
whether any adjustment to the Exercise Price is due under this
Section 6.3.
(f) The Exercise Price shall be subject to
adjustment from time to time as previously provided in this
section 6.3. Upon each adjustment of the Exercise Price, the
holder of the Warrant evidenced hereby shall thereafter be
entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Common Stock (calculated to
the nearest whole share pursuant to Section 3) obtained by
multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of shares purchasable pursuant
hereto immediately prior to such adjustment and dividing the
product by the Exercise Price resulting from such adjustment.
6.4 Certificate as to Adjustments. In each case of an
adjustment in the number of shares of Warrant Stock or Other
Securities receivable on the exercise of this Warrant, or the
Exercise Price, the Company at its expense will promptly compute
such adjustment in accordance with the terms of this Warrant and
prepare a certificate executed by an executive officer of the
Company setting forth such adjustment and showing in detail the
facts upon which such adjustment is based. The Company will
forthwith mail a copy of each such certificate to the Holder.
6.5 Notices of Record Date, Etc. In case:
(a) the Company shall take a record of the holders of
its Common Stock (or Other Securities at the time receivable upon
the exercise of the Warrant) for the purpose of entitling them to
receive any dividend (other than a cash dividend at the same rate
as the rate of the last cash dividend theretofore paid) or other
distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
entity, or any conveyance of all or substantially all of the
assets of the Company to another entity; or
(c) of any voluntary or involuntary dissolution,
liquidation, partial liquidation or winding up of the Company, or
(d) any event resulting in the expiration of the Reset
Period,
then, and in each such case, the Company shall mail or cause to
be mailed to each Holder of the Warrant 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, to be fixed, as to which the holders
of record of Common Stock (or such other securities at the time
receivable upon the exercise of the Warrant) shall be entitled to
exchange their shares of Common Stock (or such other securities)
for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding up. Such notice
shall be mailed at least 20 days prior to the date therein
specified.
7. Transfer to Comply with the Securities Act.
Notwithstanding any other provision contained herein, this
Warrant and any Warrant Stock or Other Securities may not be
sold, transferred, pledged, hypothecated or otherwise disposed of
except as follows: (a) to a person who, in the opinion of
counsel to the Company, is a person to whom this Warrant or the
Warrant Stock or Other Securities may legally be transferred
without registration and without the delivery of a current
prospectus under the Securities Act with respect thereto; or (b)
to any person upon delivery of a prospectus then meeting the
requirements of the Securities Act relating to such securities
and the offering thereof for such sale or disposition, and
thereafter to all successive assignees.
8. Legend. Unless the shares of Warrant Stock or Other
Securities have been registered under the Securities Act, upon
exercise of any of the Warrants and the issuance of any of the
shares of Warrant Stock or Other Securities, all certificates
representing such securities shall bear on the face thereof
substantially the following legend:
The securities represented by this
certificate have not been registered under
the Securities Act of 1933, as amended, and
may not be sold, offered for sale, assigned,
transferred or otherwise disposed of, unless
registered pursuant to the provisions of that
Act or unless an opinion of counsel is
obtained stating that such disposition is in
compliance with an available exemption from
such registration.
9. Notices. All notices required hereunder shall be in
writing and shall be deemed given when telegraphed, delivered
personally or within two days after mailing when mailed by
certified or registered mail, return receipt requested, to the
Company at its principal office, or to the Holder at the address
set forth on the record books of the Company, or at such other
address of which the Company or the Holder has been advised by
notice hereunder.
10. Applicable Law. The Warrant is issued under and shall
for all purposes be governed by and construed in accordance with
the laws of the State of Florida, without giving effect to the
choice of law rules thereof.
IN WITNESS HEREOF, the Company has caused this Warrant to be
signed on its behalf, in its corporate name, by its duly
authorized officer, all as of the day and year first above
written.
XXXXXX INDUSTRIES INC.
By: s/Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ____________ shares of Common
Stock of Xxxxxx Industries Inc., a Florida corporation, and
hereby makes payment of $____________ in payment therefor.
Signature
Signature, if jointly held
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered holder of the within Warrant)
Name
(Please typewrite or print in block letters)
Address
Social Security or
Taxpayer Identification Number
ASSIGNMENT FORM
FOR VALUE RECEIVED,
hereby sells, assigns and transfers unto
Name
(Please typewrite or print in block letters)
the right to purchase Common Stock of Xxxxxx Industries Inc., a
Florida corporation, represented by this Warrant to the extent of
shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint
___________________________________________ Attorney, to transfer
the same on the books of the Company with full power of
substitution in the premises.
DATED: ____________, 200_.
Signature
Signature, if jointly held
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