Exhibit 99.5
THE WARRANT REPRESENTED HEREBY, AND ALL SHARES OF CAPITAL STOCK ISSUABLE
HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS REMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
WARRANT TO PURCHASE COMMON STOCK OF TRANSBOTICS CORPORATION,
A DELAWARE CORPORATION
(Subject to Adjustment)
Common Stock Warrant No. 2 125,000 Shares of Common Stock
THIS CERTIFIES THAT, for value received, Xxxxxxx X. Xxxxxxx Irrevocable
Trust, established under agreement dated January 1, 2002 ("Holder"), is
entitled, subject to the terms and conditions of this Warrant, at any time or
from time to time after November 30, 2007 (the "Effective Date"), and before
5:00 p.m. Eastern Standard Time on November 30, 2011 (the "Expiration Date"), to
purchase from TRANSBOTICS CORPORATION, a Delaware corporation (the "Company")
ONE HUNDRED TWENTY-FIVE THOUSAND (125,000) shares of Common Stock (as
hereinafter defined, and subject to adjustment as provided herein) of the
Company at a price per share of $0.40 (the "Purchase Price"). Both the number of
shares of Common Stock purchasable upon exercise of this Warrant and the
Purchase Price are subject to adjustment and change as provided herein.
Section 22. Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings ascribed to such terms in the Purchase
Agreement. As used in this Warrant the following terms shall have the following
respective meanings:
"Common Stock" shall mean the Common Stock of the Company and any
other securities at any time receivable or issuable upon exercise of this
Warrant.
"Registered Holder" shall mean any Holder in whose name this Warrant
is registered upon the books and records maintained by the Company.
"Warrant" as used herein, shall include this Warrant and any warrant
delivered in substitution or exchange therefor as provided herein.
Section 23. Exercise of Warrant.
(a) Payment. Subject to compliance with the terms and conditions of
this Warrant and applicable securities laws, this Warrant may be exercised,
in whole or in part at any time or from time to time, on or before the
Expiration Date by the delivery (including, without limitation, delivery by
facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1
(the "Notice of Exercise"), duly executed by the Holder, at the principal
office of the Company, and as soon as practicable after such date:
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(i) the surrender of this Warrant at the principal office of the
Company; and
(ii) payment, (A) in cash (by check) or by wire transfer, (B) by
cancellation by the Holder of indebtedness of the Company to the
Holder; or (C) by a combination of (A) and (B), of an amount equal to
the product obtained by multiplying the number of shares of Common
Stock being purchased upon such exercise by the then effective
Purchase Price (the "Exercise Amount").
(b) Stock Certificates; Fractional Shares. As soon as practicable on
or after any date of exercise of this Warrant, the Company shall issue and
deliver to the person or persons entitled to receive the same a certificate
or certificates for the number of whole shares of Common Stock issuable
upon such exercise. No fractional shares or scrip representing fractional
shares shall be issued upon an exercise of this Warrant.
(c) Partial Exercise; Effective Date of Exercise. In case of any
partial exercise of this Warrant, the Company shall cancel this Warrant
upon surrender hereof and shall execute and deliver a new Warrant of like
tenor and date for the balance of the shares of Common Stock purchasable
hereunder. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above. The person entitled to receive the shares of Common Stock
issuable upon exercise of this Warrant shall be treated for all purposes as
the holder of record of such shares as of the close of business on the date
the Holder is deemed to have exercised this Warrant.
Section 24. Valid Issuance; Taxes. All shares of Common Stock issued upon
the exercise of this Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other governmental
charges that may be imposed in respect of the issue or delivery thereof. The
Company shall not be required to pay any tax or other charge imposed in
connection with any transfer involved in the issuance of any certificate for
shares of Common Stock in any name other than that of the Registered Holder of
this Warrant, and in such case the Company shall not be required to issue or
deliver any stock certificate or security until such tax or other charge has
been paid, or it has been established to the Company's reasonable satisfaction
that no tax or other charge is due.
Section 25. Adjustment of Purchase Price and Number of Shares. The number
of shares of Common Stock issuable upon exercise of this Warrant (or any shares
of stock or other securities or property receivable or issuable upon exercise of
this Warrant) and the Purchase Price are subject to adjustment upon occurrence
of the following events:
(a) Adjustment for Stock Splits, Stock Subdivisions or Combinations of
Shares. The Purchase Price of this Warrant shall be proportionally
decreased and the number of shares of Common Stock issuable upon exercise
of this Warrant (or any shares of stock or other securities at the time
issuable upon exercise of this Warrant) shall be proportionally increased
to reflect any stock split or subdivision of the Company's Common Stock.
The Purchase Price of this Warrant shall be proportionally increased and
the number of shares of Common Stock issuable upon exercise of this Warrant
(or any shares of stock or other securities at the time issuable upon
exercise of this Warrant) shall be proportionally decreased to reflect any
combination of the Company's Common Stock.
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(b) Adjustment for Dividends or Distributions of Stock or Other
Securities or Property. In case the Company shall make or issue, or shall
fix a record date for the determination of eligible holders entitled to
receive, a dividend or other distribution with respect to the Common Stock
(or any shares of stock or other securities at the time issuable upon
exercise of the Warrant) payable in (i) securities of the Company or (ii)
assets (excluding cash dividends paid or payable solely out of retained
earnings), then, in each such case, the Holder of this Warrant on exercise
hereof at any time after the consummation, effective date or record date of
such dividend or other distribution, shall receive, in addition to the
shares of Common Stock (or such other stock or securities) issuable on such
exercise prior to such date, and without the payment of additional
consideration therefor, the securities or such other assets of the Company
to which such Holder would have been entitled upon such date if such Holder
had exercised this Warrant on the date hereof and had thereafter, during
the period from the Effective Date to and including the date of such
exercise, retained such shares and/or all other additional stock available
by it as aforesaid during such period giving effect to all adjustments
called for by this Section 4.
(c) Reclassification. If the Company, by reclassification of
securities or otherwise, shall change any of the securities as to which
purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with
respect to the securities that were subject to the purchase rights under
this Warrant immediately prior to such reclassification or other change and
the Purchase Price therefore shall be appropriately adjusted, all subject
to further adjustment as provided in this Section 4. No adjustment shall be
made pursuant to this Section 4(c) upon any conversion or redemption of the
Common Stock which is the subject of Section 4(e).
(d) Adjustment for Capital Reorganization, Merger or Consolidation. In
case of any capital reorganization of the capital stock of the Company
(other than a combination, reclassification, exchange or subdivision of
shares otherwise provided for herein), or any merger or consolidation of
the Company with or into another corporation, or the sale of all or
substantially all the assets of the Company then, and in each such case, as
a part of such reorganization, merger, consolidation, sale or transfer,
lawful provision shall be made so that the Holder of this Warrant shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Purchase Price then in
effect, the number of shares of stock or other securities or property of
the successor corporation resulting from such reorganization, merger,
consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had
been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as
provided in this Section 4. The foregoing provisions of this Section 4.4
shall similarly apply to successive reorganizations, consolidations,
mergers, sales and transfers and to the stock or securities of any other
corporation that are at the time receivable upon the exercise of this
Warrant. If the per-share consideration payable to the Holder hereof for
shares in connection with any such transaction is in a form other than cash
or marketable securities, then (i) the value of such consideration shall be
determined in good faith by the Company's Board of Directors and (ii) if it
would create, in the Holder's reasonable belief, a significant regulatory
burden on the Holder to receive such non-cash consideration, then the
Holder shall have the right to receive, upon exercise of this Warrant and
in lieu of such non-cash consideration, an amount in cash based upon the
value determined in the preceding clause (a). In all events, appropriate
adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this
Warrant with respect to the rights and interests of the Holder after the
transaction, to the end that the provisions of this Warrant shall be
applicable after that event, as near as reasonably may be, in relation to
any shares or other property deliverable after that event upon exercise of
this Warrant. The Company shall not be a party to any reorganization,
merger or consolidation in which the Company is not the surviving entity
unless the entity suriving such transaction assumes, by written instrument,
all the Company's obligations under this Warrant.
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(e) Conversion of Common Stock. In case all or any portion of the
authorized and outstanding shares of Common Stock of the Company are
redeemed or converted or reclassified into other securities or property
pursuant to the Company's Certificate of Incorporation or otherwise, or the
Common Stock otherwise ceases to exist, then, in such case, the Holder of
this Warrant, upon exercise hereof at any time after the date on which the
Common Stock is so redeemed or converted, reclassified or ceases to exist
(the "Termination Date"), shall receive, in lieu of the number of shares of
Common Stock that would have been issuable upon such exercise immediately
prior to the Termination Date, the securities or property that would have
been received if this Warrant had been exercised in full and the Common
Stock received thereupon had been simultaneously converted immediately
prior to the Termination Date, all subject to further adjustment as
provided in this Warrant. Additionally, the Purchase Price shall be
immediately adjusted to equal the quotient obtained by dividing (i) the
aggregate Purchase Price of the maximum number of shares of Common Stock
for which this Warrant was exercisable immediately prior to the Termination
Date by (ii) the number of shares of Common Stock of the Company for which
this Warrant is exercisable immediately after the Termination Date, all
subject to further adjustment as provided herein.
Section 26. Certificates as to Adjustments. In each case of any adjustment
in the Purchase Price, or number or type of shares issuable upon exercise of
this Warrant, the Chief Financial Officer or Controller of the Company shall
compute such adjustment in accordance with the terms of this Warrant and prepare
a certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of the adjusted Purchase
Price. The Company shall promptly send (by facsimile and by either first class
mail, postage prepaid or overnight delivery) a copy of each such certificate to
the Holder.
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Section 27. Loss or Mutilation. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership of and the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to it,
and (in the case of mutilation) upon surrender and cancellation of this Warrant,
the Company will execute and deliver in lieu thereof a new Warrant of like tenor
as the lost, stolen, destroyed or mutilated Warrant.
Section 28. Reservation of Common Stock. The Company hereby covenants that
at all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of shares of Common Stock or other shares of capital
stock of the Company as are from time to time issuable upon exercise of this
Warrant and, from time to time, will take all steps necessary to amend its
Certificate of Incorporation to provide sufficient reserves of shares of Common
Stock issuable upon exercise of this Warrant. All such shares shall be duly
authorized, and when issued upon such exercise, shall be validly issued, fully
paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive rights, except encumbrances or restrictions arising under federal or
state securities laws. Issuance of this Warrant shall constitute full authority
to the Company's officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock and Common Stock upon the exercise of this Warrant.
Section 29. Restrictions on Transfer. The Holder, by acceptance hereof,
agrees that, absent an effective registration statement filed with the SEC under
the Securities Act of 1933, as amended (the "1933 Act"), covering the
disposition or sale of this Warrant or the Common Stock issued or issuable upon
exercise hereof or the Common Stock issuable upon conversion thereof, as the
case may be, and registration or qualification under applicable state securities
laws, such Holder will not sell, transfer, pledge, or hypothecate any or all
such Warrants or Common Stock, as the case may be.
Section 30. Compliance With Securities Laws. By acceptance of this Warrant,
the holder hereby represents, warrants and covenants that any shares of stock
purchased upon exercise of this Warrant or acquired upon conversion thereof
shall be acquired for investment only; that the Holder is able to bear the
economic risk of holding such shares as may be acquired pursuant to the exercise
of this Warrant for an indefinite period; that the Holder understands that the
shares of stock acquired pursuant to the exercise of this Warrant or acquired
upon conversion thereof will not be registered under the 1933 Act (unless
otherwise required pursuant to exercise by the Holder of the registration
rights, if any, previously granted to the registered Holder) and will be
"restricted securities" within the meaning of Rule 144 under the 1933 Act and
that the exemption from registration under Rule 144 will not be available for at
least one year from the date of exercise of this Warrant, subject to any special
treatment by the SEC for exercise of this Warrant pursuant to Section 2(b), and
even then will not be available unless a public market then exists for the
stock, adequate information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied with; and that
all stock certificates representing shares of stock issued to the Holder upon
exercise of this Warrant or upon conversion of such shares may have affixed
thereto a legend substantially in the following form:
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THE WARRANTS REPRESENTED HEREBY, AND ALL SHARES OF CAPITAL STOCK ISSUABLE
HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS REMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
Section 31. No Rights or Liabilities as Stockholders. This Warrant shall
not entitle the Holder to any voting rights or other rights as a stockholder of
the Company. In the absence of affirmative action by such Holder to purchase
Common Stock by exercise of this Warrant, no provisions of this Warrant, and no
enumeration herein of the rights or privileges of the Holder hereof shall cause
such Holder hereof to be a stockholder of the Company for any purpose.
Section 32. Notices. All notices and other communications from the Company
to the Holder hereunder shall be in writing and delivered personally or sent by
registered mail, postage prepaid to Holder's address on the records of the
Company.
Section 33. Headings. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.
Section 34. Governing Law; Forum Selection; Consent to Jurisdiction. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THE
PARTIES SUBJECT HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA, WITHOUT GIVING EFFECT
TO THE CHOICE OF LAW PRINCIPLES THEREOF. ANY ACTION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY NOTE ISSUED PURSUANT
HERETO, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NORTH CAROLINA, IN THE COUNTY IN WHICH THE CITY OF CHARLOTTE IS LOCATED OR IN
THE UNITED STATES DISTRICT COURT COVERING SUCH COUNTY. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF NORTH
CAROLINA, IN THE COUNTY IN WHICH THE CITY OF CHARLOTTE IS LOCATED OR IN THE
UNITED STATES DISTRICT COURT COVERING SUCH COUNTY, FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NORTH CAROLINA.
THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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Section 35. Waiver of Jury Trial. THE COMPANY AND HOLDER MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS WARRANT OR ANY OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY.
Section 36. Successors and Assigns. All covenants and agreements of the
Company in this Warrant shall bind its successors and assigns.
Section 37. No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or bylaws, 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
Registered Holder of this Warrant against impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value of
any shares of stock issuable upon the exercise of this Warrant above the amount
payable therefor upon such exercise, and (b) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon exercise of this
Warrant.
Section 38. Notices of Record Date. In case:
(a) 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 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;
or
(b) of any consolidation or merger of the Company with or into another
corporation, any capital reorganization of the Company, any
reclassification of the Capital Stock of the Company, or any conveyance of
all or substantially all of the assets of the Company to another
corporation in which holders of the Company's stock are to receive stock,
securities or property of another corporation; or
(c) of any voluntary dissolution, liquidation or winding-up of the
Company; or
(d) of any redemption or conversion of all outstanding Common Stock;
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (y)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, or (z) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation,
winding-up, redemption or conversion 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 as at the time are 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, liquidation or winding-up. Such notice shall be delivered at least
30 days prior to the date therein specified.
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Section 39. Severability. If any term, provision, covenant or restriction
of this Warrant is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 40. Counterparts. For the convenience of the parties, any number of
counterparts of this Warrant may be executed by the parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original
instrument.
Section 41. No Inconsistent Agreements. The Company will not on or after
the date of this Warrant enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of this Warrant or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to holders of the Company's securities under any other
agreements, except rights that have been waived.
Section 42. Saturdays, Sundays and Holidays. If the Expiration Date falls
on a Saturday, Sunday or legal holiday, the Expiration Date shall automatically
be extended until 5:00 p.m. the next business day.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the
Effective Date.
COMPANY:
TRANSBOTICS CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name Xxxxxxx X Xxxxxxx
-------------------------
Title Chief Executive Officer
------------------------
HOLDER:
XXXXXXX X. XXXXXXX IRREVOCABLE
TRUST
By /s/ Xxxxxx X Xxxxxxx
--------------------
Name Xxxxxx X Xxxxxxx
-------------------------
Title Trustee
------------------------
[EXECUTION PAGE OF WARRANT TO PURCHASE COMMON STOCK OF
TRANSBOTICS CORPORATION, A DELAWARE CORPORATION]
EXHIBIT 1
NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
TRANSBOTICS CORPORATION COMMON STOCK WARRANT NO. 2
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
the securities of TRANSBOTICS CORPORATION as provided for therein, and tenders
herewith payment of the exercise price in full in the form of cash or a
certified or official bank check in same-day funds in the amount of
$____________ for _________ of such securities.
Please issue a certificate or certificates for such securities in the name of,
and pay any cash for any fractional share to (please print name, address and
social security number):
Name: _____________________________________________________
Address: _____________________________________________________
Signature: _____________________________________________________
Date: _____________________________________________________
Note: The above signature should correspond exactly with the name on the first
page of this Warrant Certificate.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher whole number of shares.
2
