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EXHIBIT 10.2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT COVERING THIS SECURITY OR
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
STOCK PURCHASE WARRANT
(Default Warrant)
Date of Issuance: August 28, 2001 Warrant No. W-3
For value received, Universal Automotive Industries, Inc., a Delaware
corporation ("Company"), hereby grants to Venture Equities Management, Inc., a
Illinois corporation, or its assigns ("Registered Holder") the right to purchase
from the Company an aggregate of 2,500,000 shares of Common Stock ("Warrant
Stock"), at a price per share equal to the greater of: (1) one hundred fifty
percent (150%) of Net Equity (as defined below), divided by the total number of
shares of Common Stock and Preferred Stock of the Company (on an "as converted"
basis) issued and outstanding as of the Exercise Date; and (2) six hundred
percent (600%) of EBITDA (as defined below), divided by the total number of
shares of Common Stock and Preferred Stock of the Company (on an "as converted"
basis) issued and outstanding as of the Exercise Date (as may be adjusted from
time to time hereunder) ("Exercise Price"). The amount and kind of securities
purchasable pursuant to the rights granted hereunder are subject to adjustment
pursuant to the provisions contained in this Warrant. Unless otherwise defined
herein, all capitalized terms shall have the meanings set forth in that certain
Purchase Agreement, of even date herewith, by and between Company and the
Venture Equities Management, Inc.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1.1 Exercise Period. This Warrant shall expire on the date on
which the Registered Holder (together with its Affiliates) owns, directly or
indirectly, a number of shares of Underlying Common Stock that is less than
fifty percent (50%) of the number of shares of Underlying Common Stock owned by
the Registered Holder immediately following the Closing. The Registered Holder
may exercise, in its sole and absolute direction, in whole or in part (but not
as to a fractional share of Warrant Stock), the purchase rights represented by
this Warrant at any time during the 120-day period beginning on the date that a
Notice of Default shall have been furnished.
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1.2 Exercise Procedure.
(a) This Warrant may be exercised by delivering all of
the following items to the Company at its principal office (the date on
which the Company shall receive all of such items shall be referred to
as the "Exercise Date"):
(i) a completed Exercise Agreement, as described in
Section 1.3, executed by the Person exercising all or part of
the purchase rights represented by this Warrant ("Purchaser");
(ii) if this Warrant is not registered in the name
of the Purchaser, an Assignment or Assignments, in the form
attached hereto as Exhibit I, evidencing the assignment of
this Warrant to the Purchaser (in which case the Registered
Holder will be deemed to have complied with Section 4); and
(iii) a wire transfer or cashier's check payable to
the Company in an amount equal to the product of the Exercise
Price multiplied by the number of shares of Warrant Stock
being purchased upon such exercise.
(b) The Company shall use its best efforts to cause the
transfer agent of its securities to issue and deliver to the Purchaser
certificates for shares of Warrant Stock issuable upon exercise of this
Warrant within 10 business days after the Exercise Date, but in no
event shall such certificates be issued and delivered later than 15
business days after the Exercise Date.
(c) In the event that this Warrant shall be exercised for
less than all of the Warrant Stock, the Company shall, within 10
business days after the Exercise Date, execute and deliver to the
Purchaser a replacement Warrant of like tenor for the balance of the
Warrant Stock that may be purchased hereunder.
(d) The Warrant Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at 5:00
p.m. (Chicago time) on the Exercise Date, and the Purchaser shall be
deemed for all purposes to have become the record holder of such
Warrant Stock at such time on the Exercise Date.
(e) The issuance of certificates for shares of Warrant
Stock upon exercise of this Warrant shall be made without charge to the
Registered Holder or the Purchaser for any issuance tax with respect
thereto or other cost incurred by the Company in connection with such
exercise and the related issuance of shares of Warrant Stock; provided,
however, that the Company shall not be required to pay any income tax
to which the Registered Holder or the Purchaser may be subject in
connection with the issuance of this Warrant or any Warrant Stock. Each
share of Warrant Stock issuable upon exercise of this Warrant shall be,
upon payment of the Exercise Price, duly authorized, validly issued,
fully paid and nonassessable and free from all liens, restrictions,
encumbrances, and charges.
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(f) Each party shall assist and cooperate with each other
party with respect to any required governmental filings or governmental
approvals prior to, or in connection with, any exercise of this
Warrant.
1.3 Exercise Agreement. To exercise this Warrant, each Purchaser
shall execute and deliver the Exercise Agreement, the form of which is attached
hereto as Exhibit II, except that if the shares of Warrant Stock are not to be
issued in the name of the Registered Holder, the Exercise Agreement shall also
state the name of the Person to whom the certificates for the shares of Warrant
Stock are to be issued, and if the number of shares of Warrant Stock to be
issued does not include all the shares of Warrant Stock purchasable hereunder,
it shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the date of execution thereof.
1.4 Fractional Shares. The Company shall not be required to issue
any fractional shares upon exercise of the rights represented by this Warrant.
In lieu of any fractional share to which the Purchaser would otherwise have been
entitled in the absence of this section, the Company shall, within 10 business
days after the Exercise Date, deliver to the Purchaser by wire transfer or a
cashier's check payable to the Registered Holder an amount equal to the
difference between the Market Price of such fractional share and the Exercise
Price of such fractional share.
1.5 Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock solely for the purpose of issuance upon the exercise of this Warrant, the
total number of shares of Common Stock that may be issuable, from time to time,
upon the exercise of this Warrant. If, at any time, the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the full
exercise of this Warrant, the Company shall immediately take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purpose. All Warrant Stock, when issued, shall be duly
authorized and validly issued, fully paid and nonassessable, and free from all
taxes, liens, encumbrances, and restrictions. The Company shall take all actions
that may be necessary to assure that such shares of Warrant Stock may be so
issued without violation of any applicable law or governmental regulation, or
any requirement of any domestic securities exchange.
Section 2. Adjustment of Number of Shares.
2.1 Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization, or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Warrant
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased
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and the number of shares of Warrant Stock obtainable upon exercise of this
Warrant shall be proportionately decreased.
2.2 Reorganization, Reclassification, Consolidation, Merger, or
Sale. Prior to the consummation of any Organic Change, the Company shall make
appropriate provision to ensure that each Purchaser shall thereafter have the
right to acquire and receive in lieu of, or addition to (as the case may be),
the shares of Warrant Stock immediately theretofore acquirable and receivable
upon the exercise of such holder's Warrant, such shares of stock, securities,
cash, or assets as may be issued or payable with respect to, or in exchange for,
the number of shares of Warrant Stock immediately theretofore acquirable and
receivable upon exercise of such holder's Warrant had such Organic Change not
taken place. The Company shall not effect any such Organic Change, unless prior
to the consummation thereof, the successor entity (if other than the Company)
resulting from such Organic Change or the entity purchasing such assets assumes
by written instrument the obligation to deliver to each such Registered Holder
such shares of stock, securities, cash, or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.
2.3 Notices.
(a) Immediately upon any adjustment set forth in Section
2, the Company shall give written notice thereof to the Registered
Holder, setting forth in reasonable detail such adjustment and
certifying the calculation thereof.
(b) The Company shall give written notice to the
Registered Holder at least 5 business days prior to the date on which
any Organic Change shall be consummated, unless such notice would
otherwise be prohibited by applicable law or would adversely affect an
Organic Change.
Section 3. No Stockholder Rights. Prior to the exercise hereof,
this Warrant shall not, with respect to the shares of Warrant Stock, entitle the
Registered Holder or any other Person (as a holder of this Warrant) to any
rights as a stockholder of the Company, including the right to vote (or give
written consent) or to receive dividends or other distributions.
Section 4. Transfer and Exchange of Warrant.
4.1 Transfer. Subject to the transfer restrictions set forth in
the legend endorsed hereon, this Warrant and all rights hereunder are
transferable, in whole or in part (without charge by the Company to the
Registered Holder), only upon surrender of this Warrant with a properly executed
Assignment (in the form attached hereto as Exhibit I) at the principal office of
the Company.
4.2 Exchange. This Warrant is exchangeable, upon the surrender
hereof by the Registered Holder at the principal office of the Company, for one
or more replacement Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each such replacement Warrant shall represent
such portion of such rights as is designated by the Registered Holder at the
time of such surrender. The date the Company initially issues this
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Warrant shall be deemed to be the "Date of Issuance" for each such replacement
Warrant irrespective of the number of times one or more replacement Warrants
representing the unexpired and unexercised rights formerly represented by this
Warrant shall be issued.
4.3 Conditions. If, at the time of any transfer or exchange of
this Warrant, the Warrant Stock or this Warrant shall not be registered under
the Securities Act, the Company may require, as a condition to allowing such
transfer or exchange, that the Registered Holder furnish to the Company a
written statement that any replacement Warrant is being acquired for investment
purposes only, and not with a view to the distribution thereof.
Section 5. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership and the loss, theft, destruction,
or mutilation of this Warrant, and in the case of any such loss, theft, or
destruction, upon receipt of indemnity reasonably satisfactory to the Company,
or, in the case of any such mutilation, upon surrender of this Warrant, the
Company shall (at the expense of the Company) execute and deliver in lieu of
this Warrant, a new Warrant of like tenor representing the same rights
represented by such lost, stolen, destroyed, or mutilated Warrant and dated the
Date of Issuance.
Section 6. Events of Default.
6.1 Definition. An "Event of Default" shall be deemed to have
occurred if any one or more of the following events, occurrences, or conditions
shall have occurred (subject to a cure period of 30 days following receipt of
the Notice of Default in the event of a monetary breach, and a cure period of 5
days following receipt of the Notice of Default in the event of a non-monetary
breach, unless with respect to the following events, occurrences, or conditions
there shall exist a cure period in the applicable agreement, in which case such
other cure period shall apply to such events, occurrences, or conditions):
(a) The Company breaches or otherwise fails to perform or
observe any covenant or agreement set forth herein, or in the Purchase
Agreement, the Supply Agreement, the Stockholders Agreement, or any of
the Warrants.
(b) The Company or any of its Subsidiaries makes an
assignment for the benefit of creditors or admits in writing its
inability to pay its debts generally as they become due; or an order,
judgment, or decree is entered adjudicating the Company or any of its
Subsidiaries bankrupt or insolvent; or any order for relief with
respect to the Company or any of its Subsidiaries is entered under the
Federal Bankruptcy Code; or the Company or any of its Subsidiaries
petitions or applies to any tribunal for the appointment of a
custodian, trustee, receiver, or liquidator of the Company or any of
its Subsidiaries or of any substantial part of the assets of the
Company or any of its Subsidiaries, or commences any proceeding (other
than a proceeding for the voluntary liquidation and dissolution of a
Subsidiary) relating to the Company or any of its Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution, or liquidation law of any jurisdiction; or any
such petition or application is filed, or any such proceeding is
commenced, against the Company or any of its Subsidiaries and either
the Company or any such Subsidiary by
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any act indicates its approval thereof, consent thereto or acquiescence
therein or such petition, application or proceeding is not dismissed
within 60 days.
(c) A judgment in excess of $100,000 is rendered against
the Company or any of its Subsidiaries and, within 60 days after entry
thereof, such judgment is not discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of any such
stay, such judgment is not discharged.
(d) The Company or any of its Subsidiaries defaults in
the performance of any obligation or agreement (and the Company or any
of its Subsidiaries receives notice thereof) and such default causes an
amount exceeding $100,000 to become due prior to its stated maturity.
(e) There shall occur an event of default, event of
noncompliance, or other breach or default under, or with respect to,
any credit facility or any other agreement to which the Company or any
of its Subsidiaries is a party (and the Company or any of its
Subsidiaries receives notice thereof) that provides for the borrowing
or guarantying of money by the Company or any of its Subsidiaries and
such default, noncompliance, or breach causes any amount to become due
prior to its stated maturity.
(f) Any trade creditor of the Company makes a demand upon
the Company for the payment of bona fide trade payables, and the
Company is unable to make such payment within 5 days following such
demand.
(g) The Company: (i) fails to meet, by at least 15%, any
projection included in a budget that has either been approved by the
Company's Board of Directors or been provided by the Company to any
creditor of the Company; and (ii) loses at least $0.08 per share for
the 12 months then-most recently ended; and (iii) has Net Equity per
share is less than $0.40; provided that for purposes of this Section
6.1(g), the number of shares to be used to calculate the per share loss
and the Net Equity per share shall be the number of then-issued and
outstanding shares of Common Stock plus all shares of Common Stock
then-issuable upon conversion of the then-issued and outstanding shares
of Preferred Stock.
As soon as practicable following the date on which the Registered
Holder or the Company shall first have any knowledge of the existence or
occurrence of any Event of Default, such Registered Holder or the Company, as
applicable, shall provide a written notice thereof to the other party hereto
("Notice of Default"); provided, however, that any failure to provide (or any
delay in providing) a Notice of Default shall not affect or limit any right or
obligation hereunder or under any other agreement or contract to which any
person or entity may be a party or under any applicable law.
6.2 Consequences of Certain Events of Default. If any Event of
Default has occurred, then the Registered Holder shall have all rights and
remedies to which such holder shall be entitled under any contract or agreement
at any time and any other rights that such holders may have at law or in equity
(without posting a bond or other security), including, without limitation,
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under this Warrant and the Irrevocable Proxy (as defined in the Stockholders
Agreement); provided, however, that upon the occurrence of an Event of Default
under Section 6.1(a) hereof, the Proxy named in the Irrevocable Proxy shall have
all the voting rights set forth therein with respect to all of the shares
subject to such Irrevocable Proxy, irrespective of whether this Warrant shall
have at any time been exercised.
Section 7. Definitions. Unless otherwise set forth in this
Warrant, all capitalized terms have the meanings set forth below:
"Common Stock" means the Company's common stock, $0.01 par value per
share.
"EBITDA" means, the aggregate earnings of the Company before interest,
taxes, depreciation, and amortization for the 12-month period ended on the last
day of the then-most recently ended fiscal quarter, as determined in accordance
with GAAP.
"GAAP" means generally accepted accounting principals used in the
United States, consistently applied.
"Market Price" means the average of the closing prices of such
security's sales on all securities exchanges on which such security may at the
time be listed, or, if there has been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all such exchanges at
the end of such day, or, if on any day such security is not so listed, the
average of the representative bid and asked prices quoted by the Nasdaq Stock
Market as of 4:00 P.M., New York time, or, if on any day such security is not
quoted by the Nasdaq Stock Market, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as reported by
Pink Sheets LLC, or any similar successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "Market
Price" is being determined and the 20 consecutive business days prior to such
day. If at any time such security is not listed on any securities exchange or
quoted by the Nasdaq Stock Market or the over-the-counter market, the "Market
Price" will be the fair value thereof determined in good faith by the Board of
Directors.
"Net Equity" means the amount by which the Company's assets exceed
liabilities based upon the balance sheet as of the last day of the then-most
recently ended fiscal quarter.
"Organic Change" means any recapitalization, reorganization,
reclassification, consolidation, merger, share acquisition or exchange, or sale
of all or substantially all of the Company's assets to another Person, or other
transaction that is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities, cash, or assets with respect to, or in exchange for, Common Stock.
"Preferred Stock" means the Company's Series A Preferred Stock, $0.01
par value per share.
"Purchase Agreement" means that certain Purchase Agreement, of even
date herewith, by and between the Registered Holder and the Company.
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"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders Agreement" means that certain Stockholders Agreement, of
even date herewith, by and among the Company and certain holders of its capital
stock.
Section 8. Miscellaneous.
8.1 Limitation of Liability. No provision hereof, in the absence
of affirmative action by the Registered Holder or the Purchaser to purchase
Warrant Stock, and no enumeration herein of the rights or privileges of the
Registered Holder or the Purchaser, shall give rise to any liability of such
Registered Holder or Purchaser for the purchase price of any Warrant Stock or as
a stockholder of the Company.
8.2 Remedies. The Registered Holder and the Purchaser shall have
all rights and remedies set forth in this Warrant, the Certificate of
Incorporation, and all of the rights that the Registered Holder and the
Purchaser has under any law. Any Person having any rights under any provision of
this Warrant shall be entitled to enforce such rights specifically, without
posting a bond or other security, to recover damages by reason of any breach of
any provision of this Warrant and to exercise all other rights granted by law.
8.3 Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant may be amended only by a written instrument signed by
the Company and the Registered Holder. No other course of dealing between the
Company and the Registered Holder or the Purchaser or any delay in exercising
any rights hereunder, under the Company's Certificate of Incorporation, or
otherwise shall operate as a waiver of any rights of the Registered Holder or
the Purchaser. The failure of any party to enforce any of the provisions of this
Warrant shall not be construed as a waiver of such provisions and will not
affect the right of such party thereafter to enforce each and every provision of
this Warrant in accordance with its terms.
8.4 Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant.
8.5 Payments. All payments required or permitted hereunder shall
be made in immediately available funds in the lawful currency of the United
States of America.
8.6 Governing Law. This Warrant shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Illinois, without regard to the conflicts of laws principles thereof.
8.7 Remedies. The Registered Holder and the Purchaser shall have
all rights and remedies set forth in this Warrant, the Certificate of
Designation, and all of the rights that the Registered Holder and the Purchaser
has under any law. The Registered Holder and the Purchaser shall be entitled to
enforce such rights specifically, without posting a bond or other
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security, to recover damages by reason of any breach of any provision of this
Warrant and to exercise all other rights granted by law.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
UNIVERSAL AUTOMOTIVE INDUSTRIES, INC.
By: ________________________________
Its: _______________________________
Attest:
__________________________
Secretary
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EXHIBIT I
ASSIGNMENT
FOR VALUE RECEIVED, _____________________________________ hereby sells,
assigns, and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-____) with respect to the number of shares of the
Warrant Stock covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
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Dated: _______________ __, 20__
Signature: _________________________
_________________________
Witness: _________________________
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EXHIBIT II
EXERCISE AGREEMENT
To: Universal Automotive Industries, Inc. Dated: ______________ __, 20__
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-____), hereby agrees to subscribe for the purchase
of ____ shares of the Warrant Stock covered by such Warrant and makes payment
herewith in full therefor at the price per share provided by such Warrant.
Signature: ______________________________
Address: ________________________________
