EXHIBIT 10.18
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS.
McLAREN STOCK OPTION PURCHASE AGREEMENT
THIS STOCK OPTION PURCHASE AGREEMENT (the "Agreement") is made as of August
1, 2001, by and between EMM McLAREN INVESTMENT COMPANY, L.L.C., a Michigan
limited liability company located at 0000 Xxxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx
00000 ("Investor"), and MCLAREN PERFORMANCE TECHNOLOGIES, INC., a Delaware
corporation with offices at 00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000
("McLaren").
RECITALS:
A. McLaren has offered to Investor, and Investor desires to acquire, the
option to acquire up to One Million Seven Hundred Fifty Thousand (1,750,000)
shares of the common stock of McLaren, par value $0.00001 per share ("Common
Stock"), in accordance with the terms of this Agreement (the "Option Shares").
X. XxXxxxx has offered to Investor, and Investor desires to acquire,
warrants to purchase additional shares of Common Stock equal to twenty percent
(20%) of the sum of the Option Shares acquired by Investor on or before October
1, 2001, in accordance with the terms of this Agreement (the "Warrant Shares").
X. XxXxxxx and Investor desire to enter into this Agreement to facilitate
the acquisition of the Option Shares and the Warrant Shares (collectively, the
"Shares").
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated into
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and made part of this Agreement.
2. Grant of Option. McLaren hereby grants to Investor an option to
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purchase the Option Shares (the "Option"), on the following terms:
(a) Minimum Initial Exercise. Investor shall have the option to
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purchase not less than Six Hundred Fifty Thousand (650,000) Option Shares (the
"Initial Option Shares") at the Exercise Price (as defined below) on or before
August 21, 2001. In the event that Investor, or Investor's permitted assignee,
has not exercised its option to purchase the Initial Option Shares on or before
August 21, 2001, this Agreement, and Investor's right to purchase any Shares
hereunder, shall immediately terminate.
(b) Additional Exercises. In the event that Investor, and/or
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Investor's permitted assignee, has exercised its option to purchase the Initial
Option Shares on or before August ___, 2001, Investor shall have the option to
purchase additional Option Shares at the Exercise Price on or before October 1,
2001; provided, however, that the aggregate number of the Initial Option Shares
and Additional Option Shares purchased by Investor shall not exceed One Million
Seven Hundred Fifty Thousand (1,750,000) Option Shares.
(c) Exercise Price. The exercise price (the "Exercise Price") for
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each of the Option Shares shall be $0.98 per share.
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(d) Exercise of the Option. Investor shall have the right to
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exercise the Option at any time, in whole or in part, in one or more
transactions, during the period commencing on the date hereof and ending at 5:00
p.m., Detroit, Michigan time, on October 1, 2001 (the "Exercise Period"). The
Option may only be exercised during the Exercise Period. The Option shall
terminate with respect to all unexercised Option Shares upon the expiration of
the Exercise Period.
(e) Method of Exercising the Option. The Option may be exercised
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only by written notice received by the Chief Financial Officer of McLaren. The
notice shall state the irrevocable election to exercise the Option as to any or
all of the Option Shares. Such notice shall be accompanied by payment of the
full Exercise Price for such Option Shares in immediately available funds. Upon
receipt of the appropriate notice and the Exercise Price in immediately
available funds, McLaren will instruct its stock transfer agent to issue that
number of shares equal to the Option Shares to Investor at Investor's address
set forth above.
3. Warrants. On or before October 5, 2001, McLaren shall deliver to
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Investor: (a) a warrant, in the form attached hereto as Exhibit A, to purchase
one-half of the Warrant Shares on or before December 31, 2002, at an exercise
price of $1.00 per share; and (b) a warrant, in the form attached hereto as
Exhibit B, to purchase one-half of the Warrant Shares on or before December 31,
2003, at an exercise price of $2.00 per share (the "Warrants").
4. Adjustments to Number of Option Shares. The number of Option Shares
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shall be subject to adjustment from time to time in accordance with this Section
4, including the limitations set forth in Subsection 4(i).
(a) Definitions. Certain capitalized terms used in this Section 4
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shall have the following meanings:
(i) "Additional Shares of Common Stock" means all shares
of Common Stock issued by McLaren after the date hereof, except (i) the Shares,
and (ii) any shares of Common Stock issued pursuant to the exercise of stock
options issued by McLaren to its employees pursuant to any Company stock option
plans.
(ii) "Convertible Securities" means evidences of
indebtedness, shares of stock or other securities that are convertible into or
exchangeable for shares of Common Stock.
(iii) "Per Share Market Price" means on any particular date
(a) the closing bid price per share of the Common Stock on such date on NASDAQ
or other registered national stock exchange on which the Common Stock is then
listed or if there is no such price on such date, then the closing bid price on
such exchange or quotation system on the date nearest preceding such date, or
(b) if the Common Stock is not listed then on NASDAQ or any registered national
stock exchange, the closing bid price for a share of Common Stock in the over-
the-counter market, as reported by the OTC Bulletin Board or in the National
Quotation Bureau Incorporated or similar organization or agency succeeding to
its functions of reporting prices) at the close of business on such date, or (c)
if the Common Stock is not then reported by the OTC Bulletin Board or the
National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices), then the average of the "Pink
Sheet" quotes for the relevant conversion period, as determined in good faith by
McLaren's Board of Directors, or (d) if the Common Stock is not then publicly
traded, the fair market value of a share of Common Stock as determined in good
faith by McLaren's Board of Directors.
(b) Stock Dividends, Subdivision and Combination. In the event that,
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on or before October 1, 2001, McLaren shall: (i) pay a dividend or other
distribution of Common Stock to the holders of its outstanding Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a larger number of
shares of Common Stock, or (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock; then the number of Option
Shares shall be adjusted so as to consist of the number of shares of Common
Stock that a record holder of the number of shares of Common Stock comprising
the Option Shares immediately prior to the happening of such event would own or
be entitled to receive after the happening of such event. The adjustments
required by this subsection shall be made whenever and as often as any specified
event requiring an adjustment shall occur.
(c) Certain Other Dividends and Distributions. In the event that,
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on or before October 1, 2001, McLaren intends to pay a dividend or other
distribution of: (i) cash, or (ii) any evidences of its indebtedness, any other
securities or property of any nature whatsoever (other than cash or Common
Stock); then at least ten (10) business days prior to the record date to
determine shareholders entitled to receive such dividend or distribution,
McLaren
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shall give notice of such proposed dividend or distribution to the Investor for
the purpose of enabling the Investor to exercise the Option, and thereby
participate in such dividend or distribution.
(d) Issuance of Additional Shares. In the event that, on or before
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October 1, 2001, McLaren shall issue or sell any Additional Shares of Common
Stock for a consideration per share less than the Per Share Market Price, then
the number of Option Shares shall be adjusted to that number determined by
multiplying the number of Option Shares immediately prior to such adjustment by
a fraction: (i) the numerator of which shall be the sum of the number of shares
of Common Stock issued and outstanding, plus the number of Additional Shares of
Common Stock deemed to be outstanding pursuant to Subsection 4(d) immediately
prior to the issuance of such Additional Shares of Common Stock, plus the number
of such Additional Shares of Common Stock so issued; and (ii) the denominator of
which shall be the sum of the number of shares of Common Stock issued and
outstanding, plus the number of Additional Shares of Common Stock deemed to be
outstanding pursuant to Subsection 4(d) immediately prior to the issuance of
such Additional Shares of Common Stock, plus the number of shares of Common
Stock that the aggregate consideration for the total number of such Additional
Shares of Common Stock so issued would purchase at the Per Share Market Price.
The provisions of this Subsection 4(d) shall not apply to any issuance of
Additional Shares of Common Stock for which an adjustment is provided under
Subsection 4(b). No adjustment of the number of Option Shares shall be made
under this subsection upon the issuance of any Additional Shares of Common Stock
that are issued pursuant to the exercise of any warrants or other subscription
or purchase rights or pursuant to the exercise of any conversion or exchange
rights in any Convertible Securities, if any such adjustment shall previously
have been made upon the issuance of such warrants or other rights or upon the
issuance of such Convertible Securities (or upon the issuance of any warrant or
other rights therefor) pursuant to Subsection 4(d).
(e) Issuance of Warrants, Convertible Securities or Other Rights.
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In the event that, on or before October 1, 2001, McLaren shall issue or sell any
warrants or other rights to subscribe for or purchase any Additional Shares of
Common Stock or any Convertible Securities (whether or not the rights to
exchange or convert thereunder are immediately exercisable) and the
consideration per share for which Additional Shares of Common Stock may at any
time thereafter be issuable pursuant to such warrants or other rights or
pursuant to the terms of such Convertible Securities shall be lower than the
Exercise Price, then the number of Option Shares shall be adjusted as provided
in Subsection 4(c) and the aggregate consideration for such maximum number of
Additional Shares of Common Stock shall be deemed to be the minimum
consideration received and receivable by McLaren for the issuance of such
Additional Shares of Common Stock pursuant to such warrants or other rights or
pursuant to the terms of such Convertible Securities. No adjustment of the
number of Option Shares of shall be made under this Subsection 4(e) upon the
issuance of any Convertible Securities that are issued pursuant to the exercise
of any warrants or other subscription or purchase rights therefor, if any such
adjustment shall previously have been made upon the issuance of such warrants or
other rights pursuant to this Subsection 4(e).
(f) Superseding Adjustment to Option Shares. If, at any time after
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any adjustment of the number of Option Shares shall have been made pursuant to
the foregoing Subsection 4(e) on the basis of the issuance of warrants or other
rights or the issuance of other Convertible Securities, or after any new
adjustments of the number of shares comprising the Option Shares shall have been
made pursuant to this Subsection 4(f), (i) such warrants or rights or the right
of conversion or exchange in such other Convertible Securities shall expire, and
a portion of such warrants or rights, or the right of conversion or exchange in
respect of a portion of such other Convertible Securities, as the case may be,
shall not have been exercised, and/or (ii) the consideration per share, for
which shares of Common Stock are issuable pursuant to such warrants or rights or
the terms of such other Convertible Securities, shall be increased for any
reason, then such previous adjustment shall be rescinded and annulled and the
Additional Shares of Common Stock that were deemed to have been issued by virtue
of the computation made in connection with the adjustment so rescinded and
annulled shall no longer be deemed to have been issued by virtue of such
computation. Thereupon, a recomputation shall be made of the effect of such
rights or options or other Convertible Securities on the basis of (x) treating
the number of Additional Shares of Common Stock, if any, theretofore actually
issued or issuable pursuant to the previous exercise of such warrants or rights
or such right of conversion or exchange, as having been issued on the date or
dates of such exercise and for the consideration actually received and
receivable therefor, and (y) treating any such warrants or rights or any such
other Convertible Securities that then remain outstanding as having been granted
or issued immediately after the time of such increase of the consideration per
share for which shares of Common Stock are issuable under such warrants or
rights or other Convertible Securities; and, if and to the extent called for by
the foregoing provisions of this Section 4 on the basis aforesaid, a new
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adjustment of the number of Option Shares shall be made, which new adjustment
shall supersede the previous adjustment so rescinded and annulled.
(g) Other Provisions Applicable to Adjustment Under This Section.
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The following provisions shall be applicable to the making of adjustments of the
number of Option Shares hereinbefore provided for in this Section 4:
(i) Treasury Stock. The sale or other disposition of any
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issued shares of Common Stock owned or held by or for the account of McLaren
shall be deemed an issuance thereof for the purposes of this Section 4.
(ii) Computation of Consideration. To the extent that any
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Additional Shares of Common Stock or any Convertible Securities or any warrants
or other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for a cash consideration,
the consideration received by McLaren therefor shall be deemed to be the amount
of the cash received by McLaren therefor, or, if such Additional Shares of
Common Stock or Convertible Securities are offered by McLaren for subscription,
the subscription price, or, if such Additional Shares of Common Stock or
Convertible Securities are sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price, in any such
case excluding any amounts paid or receivable for accrued interest or accrued
dividends (but without deduction of any compensation, discounts or expenses paid
or incurred by McLaren for and in the underwriting of, or otherwise in
connection with, the issuance thereof). To the extent that such issuance shall
be for a consideration other than cash, then, except as herein otherwise
expressly provided, the amount of such consideration shall be deemed to be the
fair value of such consideration at the time of such issuance as determined in
good faith by the Board of Directors of McLaren (but without deduction of any
compensation, discounts or expenses paid or incurred by McLaren for and in the
underwriting of, or otherwise in connection with, the issuance thereof). In case
any Additional Shares of Common Stock or Convertible Securities or any warrants
or other rights to subscribe for or purchase such Additional Shares of Common
Stock or Convertible Securities shall be issued in connection with any merger in
which McLaren issues any securities, the amount of consideration therefor shall
be deemed to be the fair value, as determined in good faith by the Board of
Directors of McLaren, of such portion of the assets and business of the
nonsurviving corporation as such Board in good faith shall determine to be
attributable to such Additional Shares of Common Stock, Convertible Securities,
warrants or other rights, as the case may be. In the event of any consolidation
or merger of McLaren in which McLaren is not the surviving corporation or in the
event of any sale of all or substantially all of the assets of McLaren for stock
or other securities of any corporation, McLaren shall be deemed to have issued a
number of Additional Shares of Common Stock or Convertible Securities of the
other corporation computed on the basis of the actual exchange ratio on which
the transaction was predicated, and the consideration received for such issuance
shall be equal to the fair market value, as determined in good faith by the
Board of Directors of McLaren, on the date of such transaction, of such stock or
securities of the other corporation, and if any such calculation results in
adjustment of the number of Option Shares immediately prior to such merger,
conversion or sale for purposes of this Subsection 4(g), such merger, conversion
or sale shall be deemed to have been made after giving effect to such
adjustment. The consideration for any Additional Shares of Common Stock issuable
pursuant to any warrants or other rights to subscribe for or purchase the same
shall be the consideration received by McLaren for issuing such warrants or
other rights, plus the additional consideration payable to McLaren upon the
exercise of such warrants or other rights. The consideration for any Additional
Shares of Common Stock issuable pursuant to the terms of any Convertible
Securities shall be the consideration received by McLaren for issuing any
warrants or other rights to subscribe for or purchase such Convertible
Securities, plus the consideration paid or payable to McLaren in respect of the
subscription for or purchase of such Convertible Securities, plus the additional
consideration, if any, payable to McLaren upon the exercise of the right of
conversion or exchange in such Convertible Securities.
(iii) Fractional Interests. In computing adjustments under
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this section, fractional interests in Common Stock shall not be taken into
account.
(iv) When Adjustment Not Required; Abandonment of Plan for
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Dividend and the Like. If McLaren shall declare a dividend or distribution of,
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or grant subscription or purchase rights with respect to, Common Stock as
described in this Section 4 and shall, thereafter, legally abandon its plan to
pay or deliver such dividend, distribution, subscription or purchase rights,
then thereafter no adjustment shall be required and any such adjustment
previously made in respect thereof shall be rescinded and annulled.
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(h) Reorganization, Reclassification, Merger, Consolidation or Disposition
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of Assets. In case McLaren shall reorganize its capital, reclassify its capital
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stock, merge or consolidate into another corporation, then the number of shares
of stock purchasable upon exercise of the Option shall be adjusted to consist of
the number of shares of stock or other securities that a record holder of the
number of shares of Common Stock purchasable upon exercise of the Option
immediately prior to such event would own or be entitled to receive immediately
after such event.
(i) No Adjustment. Notwithstanding the foregoing, an adjustment as
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provided in this Section 4 shall not be made if: (a) McLaren offers securities
to the public pursuant to a registration statement under the Act, (b) McLaren
issues securities pursuant to the acquisition by McLaren of any product,
technology, know-how or another corporation by merger, purchase of all or
substantially all of the assets, or any other reorganization whereby McLaren
owns over fifty percent (50%) of the voting power of such corporation, (c)
Company issues shares of its capital stock in connection with any stock split,
stock dividend or McLaren issues any shares of common stock of McLaren pursuant
to options, warrants or rights granted before the date hereof, or granted before
or after the date hereof if granted to purchase shares of such common stock in
favor of employees, directors, officers, strategic partners or consultants of
McLaren or any subsidiary thereof pursuant to a stock option plan or agreement
approved by McLaren's Board of Directors; provided that such stock options
thereunder, if granted after the date hereof, are granted at a conversion or
exercise price that McLaren's Board of Directors determines in good faith is not
less than the fair market value of the securities into which they are
exercisable as of the date of grant, or (d) McLaren converts any securities into
Common Stock pursuant to McLaren's Certificate of Incorporation, as amended.
(j) Notice of Adjustment. Whenever McLaren takes any action that causes
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the composition of the Option to change under Subsections 4(b) through 4(h),
McLaren shall provide the Investor with written notice of such change and the
number of Option Shares for which the Option is or will become exercisable. In
addition to any other notice required hereunder, McLaren shall provide the
Investor with a copy of any notice that McLaren is required to provide those
persons holding shares of Common Stock on the same date such persons receive
such notice.
5. Representations and Warranties of Investor. Investor hereby acknowledges,
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represents and warrants as follows:
(a) INVESTOR ACKNOWLEDGES THAT THE SHARES HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
(b) Investor has the financial ability to bear the economic risk of
Investor's investment in the Shares (including a complete loss of Investor's
investment) and has no need for liquidity with respect to Investor's investment
in the Shares.
(c) Each of Investor's members has: (i) acknowledged that the Shares
represent substantially all of Investor's assets; (ii) the financial ability to
bear the economic risk of such member's investment in Investor (including a
complete loss of such member's investment in Investor), (iii) and no need for
liquidity with respect to Member's investment in the Investor.
(d) Investor, and each of Investor's members, has such knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of an investment in the Shares and has obtained, in
Investor's reasonable judgment, sufficient information from McLaren to evaluate
the merits and risks of an investment in the Shares.
(e) Investor, and each of Investor's members, is an "accredited investor"
as that term is defined in Rule 501(a) promulgated under Regulation D of the
Securities Act (an "Accredited Investor").
(f) Investor is acquiring the Shares for its own account and not with a
view to the distribution thereof within the meaning of the Securities Act.
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(g) The Shares are not being subscribed for by Investor as a result of any
material information about McLaren's business that has not been publicly
disclosed.
(h) Investor has been given the opportunity to ask questions of, and
receive answers from, the management of McLaren concerning the terms and
conditions of the Offering and other matters pertaining to Investor's
investment, and has been given the opportunity to obtain such additional
information necessary to verify the accuracy of the information which was
otherwise provided in order for Investor to evaluate the merits and risks of an
investment in the Shares to the extent McLaren possesses such information or can
acquire it without unreasonable effort or expense.
(i) Investor, and each of Investor's members, has obtained and reviewed
McLaren's Annual Report on Form 10-KSB for the year ended September 30, 2000,
Quarterly Reports on Form 10-QSB for the quarters ended December 31, 2000, and
March 31, 2001, Current Report on Form 8-K filed December 8, 2000, Current
Report on Form 8-K filed April 26, 2001, 2000 Annual Report to Shareholders, and
Definitive Proxy Statement for the Annual Meeting of Shareholders held on
February 11, 2001.
(j) Investor acknowledges that the representations, warranties,
agreements, undertaking and acknowledgments made by Investor in this Agreement
are made with the intent that they be relied upon by McLaren and its management
in determining Investor's suitability as a purchaser of the Shares.
(k) Investor has obtained written representations and warranties similar
to those set forth in this Section 6 from each of Investor's members and has
informed each of its members in writing that such representations and warranties
shall be relied upon by McLaren and its management in determining Investor's
suitability as a purchaser of the Shares.
6. Warranties and Representations of McLaren. McLaren represents and warrants
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to Investor that:
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
McLaren's Board of Directors, and no other corporate proceedings on the part of
McLaren are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by McLaren and constitutes a valid and binding agreement
of McLaren, enforceable against McLaren in accordance with its terms.
(b) The Shares, upon issuance pursuant hereto, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be delivered free and
clear of all claims, liens, encumbrances, security interests and charges of any
nature whatsoever.
7. Rights as a Shareholder. Investor shall have no rights of a shareholder
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of McLaren with respect to the Shares until such shares are actually issued to
Investor. Except as provided in Section 4 or the Warrants, no adjustment shall
be made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities or other property) for which the
record date is prior to the date such stock certificate is issued.
8. Registration Rights. On or before October 5, 2001, Investor and McLaren
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shall enter into a Registration Rights Agreement in form attached hereto as
Exhibit C providing Investor with certain registration rights with respect to
the Shares.
9. Miscellaneous.
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(a) Modification. Neither this Agreement nor any provision hereof shall
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be modified, discharged or terminated except by an instrument in writing signed
by the party against whom any waiver, change, discharge or termination is
sought.
(b) Notices. Any notice, demand or other communication which any party
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hereto may be required, or may elect, to give to anyone interested hereunder
shall be sufficiently given if (i) delivered by a recognized national courier
service to such address as may be given herein, or (ii) delivered personally at
such address.
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(c) Binding Effect. Except as otherwise provided herein, this Agreement
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shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
(d) Entire Agreement. This Agreement contains the entire agreement of the
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parties with respect to the subject matter hereof, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
(e) Assignability. None of this Agreement, the Options nor the Warrants
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are transferable or assignable by either party without the prior written consent
of the other party; provided, however, that Investor may assign all or a portion
of Investor's rights hereunder to any of Investor's members or any entity
controlled by Investor or Investor's members, and further provided that such
assignee is an "Accredited Investor" and, prior to such assignment, Investor
delivers to McLaren a written opinion of counsel reasonably acceptable to
McLaren that such assignment is exempt from registration under the Securities
Act and applicable state law.
(f) Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Michigan applicable to contracts made
and to be performed entirely within such state without giving effect to the
choice of law provisions of such state.
(g) Counterparts; Facsimile Execution. This Agreement may be executed
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through the use of separate signature pages or in any number of counterparts,
and each of such counterparts shall, for all purposes, constitute one agreement
binding on all the parties, notwithstanding that all parties are not signatories
to the same counterpart. This Agreement may be signed by fax delivery of a
signed signature page to the other party and such fax execution shall be valid
in all respects.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
McLAREN PERFORMANCE TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President
INVESTOR:
EMM McLAREN INVESTMENT COMPANY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxxx Member of
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Its: EMM Management Group LLC
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its Manager
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EXHIBIT A
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SAID ACTS AND ALL OTHER APPLICABLE SECURITIES LAWS
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
MCLAREN PERFORMANCE TECHNOLOGIES, INC.
Number of Shares: [10% of Option Shares acquired on or before October 1,
2001]
Date of Issuance: October 5, 2001
Date of Expiration: December 31, 2002
FOR VALUE RECEIVED, the undersigned, McLaren Performance Technologies,
Inc., a Delaware corporation (the "Company"), hereby certifies that EMM McLaren
Investment Company, L.L.C., a Michigan limited liability company located at 0000
Xxxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 ("EMM"), is entitled to subscribe for
and purchase, during the period specified in this Warrant, [10% of Option Shares
acquired on or before October 1, 2001] shares of common stock of the Company, at
an exercise price per share equal to the Per Share Exercise Price then in
effect, subject, however, to the provisions and upon the terms and conditions
hereinafter set forth.
1. Definitions. Certain capitalized terms used in this Warrant shall have the
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following meanings:
(a) "Act" means the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
(b) "Additional Shares of Common Stock" means all shares of Common Stock
issued by the Company after the date hereof, except (i) the Warrant Stock, and
(ii) any shares of Common Stock issued pursuant to the exercise of stock options
issued by the Company to its employees pursuant to any Company stock option
plans.
(c) "Common Stock" means the Company's common stock, $0.00001 par value.
(d) "Commission" means the United States Securities and Exchange
Commission or any successor agency.
(e) "Convertible Securities" means evidences of indebtedness, shares of
stock or other securities that are convertible into or exchangeable for shares
of Common Stock.
(f) "Expiration Date" means December 31, 2002.
(g) "Holder" means EMM, or any permitted assignee who may have acquired
this Warrant in accordance with the terms of Section 7.
(h) "Issuance Date" means October 5, 2001.
(i) "Per Share Exercise Price" shall mean $1.00 per share.
(j) "Per Share Market Price" means on any particular date (a) the closing
bid price per share of the Common Stock on such date on NASDAQ or other
registered national stock exchange on which the Common Stock is then listed or
if there is no such price on such date, then the closing bid price on such
exchange or quotation system on the date nearest preceding such date, or (b) if
the Common Stock is not listed then on NASDAQ or any registered national stock
exchange, the closing bid price for a share of Common Stock in the over-the-
counter market, as reported by the OTC Bulletin Board or in the National
Quotation Bureau Incorporated or similar organization or agency succeeding to
its functions of reporting prices) at the close of business on such date, or (c)
if the Common Stock is not then reported by the OTC Bulletin Board or the
National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices), then the average of the "Pink
Sheet" quotes for the relevant conversion period, as determined in good faith by
McLaren's Board of Directors, or (d) if the Common Stock is not then publicly
traded, the fair market value of a share of Common Stock as determined in good
faith by the Company's Board of Directors.
(k) "Person" means any individual, corporation, partnership, trust,
unincorporated organization and any government, and any political subdivision,
instrumentality or agency thereof.
(l) "Registration Rights Agreement" means that certain Registration Rights
Agreement made as of October 5, 2001, by and between the Company and EMM.
(m) "Term" shall have the meaning set forth in Section 2.
(n) "Warrant Stock" means the [10% of Option Shares acquired on or before
October 1, 2001] shares of Common Stock issuable upon the exercise of this
Warrant, subject to adjustment in accordance with Section 8.
(o) "Warrant Office" means 00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000, or such other office of the Company or of any transfer agent of the
Common Stock in the continental United States as to which written notice has
previously been given to the then current Holder of this Warrant.
2. Exercisability; Expiration. The right to subscribe for and purchase not
--------------------------
less than all of the shares of Warrant Stock represented hereby shall commence
on the Issuance Date and shall expire at 5:00 p.m., Detroit time, on the
Expiration Date (such period being the "Term"). The purchase rights represented
by this Warrant may be exercised in whole at any time and from time to time
during the Term. Rights to purchase shares under this Warrant shall expire and
may not be exercised after at 5:00 p.m., eastern daylight savings time, on
Expiration Date.
3. Method of Exercise. To the extent this Warrant is exercisable, to exercise
------------------
this Warrant, the Holder shall deliver to the Company at the Warrant Office in
accordance with Section 13: (a) a Notice of Exercise substantially in the form
attached hereto as Exhibit A duly executed by the Holder, (b) payment of an
amount equal to the product of the Per Share Exercise Price multiplied by the
number of shares of Warrant Stock, which shall be made in cash or by certified
or bank cashier's check payable to the order of the Company, and (c) this
Warrant. An exercise of this Warrant shall be deemed to be effective upon
receipt by the Company of all of the items described in the preceding sentence.
The Company shall thereafter, as promptly as practicable, cause to be issued and
delivered to the Holder a certificate or certificates representing the Warrant
Stock specified in the Notice of Exercise. The stock certificate or
certificates so delivered shall be in denominations of shares as may be
specified in said notice and shall be issued in the name of the Holder. The
Company shall pay all expenses, taxes (excluding capital gains and income taxes)
and other charges payable in connection with the preparation, issuance and
delivery of stock certificates.
4. Shares to be Fully Paid and Non-Assessable. The Warrant Stock shall be
------------------------------------------
validly issued, fully paid, non- assessable and free from preemptive rights.
5. No Fractional Shares to be Issued. The Company shall not be required upon
---------------------------------
any exercise of this Warrant to issue a certificate representing any fraction of
a share of Common Stock.
6. Legend on Warrant Stock. Each certificate representing the Warrant Stock,
-----------------------
unless at the time of exercise such shares are registered under the Act, shall
bear substantially the following legend (and any additional legend required by
any national securities exchanges upon which such shares may, at the time of
such exercise, be listed or under applicable securities laws): THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE FEDERAL
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THEY
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, ENCUMBERED, OR
OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE ISSUER, SUCH TRANSFER WOULD BE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACTS OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION.
7. Ownership of Warrant; Restrictions on Transfer. The Company may deem and
----------------------------------------------
treat the Person in whose name this Warrant is registered as the Holder and
owner hereof (notwithstanding any notations of ownership or writing hereon made
by anyone other than the Company) for all purposes and shall not be affected by
any notice to the contrary. Neither this Warrant, nor any rights hereunder, are
transferable, in whole or in part, without the prior written consent of the
Company.
8. Adjustments to Number of Shares of Warrant Stock. The number of shares of
-------------------------------------------------
Warrant Stock shall be subject to adjustment from time to time in accordance
with this Section 8, including the limitations set forth in Subsection 8(h).
(a) Stock Dividends, Subdivision and Combination. In the event that,
--------------------------------------------
during the Term, the Company shall: (i) pay a dividend or other distribution of
Common Stock to the holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock; then the number of shares of Warrant Stock
shall be adjusted so as to consist of the number of shares of Common Stock that
a record holder of the number of shares of Common Stock comprising the Warrant
Stock immediately prior to the happening of such event would own or be entitled
to receive after the happening of such event. The adjustments required by this
subsection shall be made whenever and as often as any specified event requiring
an adjustment shall occur.
(b) Certain Other Dividends and Distributions. In the event that, during
-----------------------------------------
the Term, the Company intends to pay a dividend or other distribution of: (i)
cash, or (ii) any evidences of its indebtedness, any other securities or
property of any nature whatsoever (other than cash or Common Stock); then at
least ten (10) business days prior to the record date to determine shareholders
entitled to receive such dividend or distribution, the Company shall give notice
of such proposed dividend or distribution to the Holder for the purpose of
enabling the Holder to exercise this Warrant, and thereby participate in such
dividend or distribution.
(c) Issuance of Additional Shares. In the event that, during the Term, the
-----------------------------
Company shall issue or sell any Additional Shares of Common Stock for a
consideration per share less than the Per Share Market Price, then the number of
shares of Warrant Stock shall be adjusted to that number determined by
multiplying the number of shares of Warrant Stock immediately prior to such
adjustment by a fraction: (i) the numerator of which shall be the sum of the
number of shares of Common Stock issued and outstanding, plus the number of
Additional Shares of Common Stock deemed to be outstanding pursuant to
Subsection 8(d) immediately prior to the issuance of such Additional Shares of
Common Stock, plus the number of such Additional Shares of Common Stock so
issued; and (ii) the denominator of which shall be the sum of the number of
shares of Common Stock issued and outstanding, plus the number of Additional
Shares of Common Stock deemed to be outstanding pursuant to Subsection 8(d)
immediately prior to the issuance of such Additional Shares of Common Stock,
plus the number of shares of Common Stock that the aggregate consideration for
the total number of such Additional Shares of Common Stock so issued would
purchase at the Per Share Market Price. The provisions of this Subsection 8(c)
shall not apply to any issuance of Additional Shares of Common Stock for which
an adjustment is provided under Subsection 8(a). No adjustment of the number of
shares of Warrant Stock shall be made under this subsection upon the issuance of
any Additional Shares of Common Stock that are issued pursuant to the exercise
of any warrants or other subscription or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any Convertible Securities, if
any such adjustment shall previously have been made upon the issuance
of such warrants or other rights or upon the issuance of such Convertible
Securities (or upon the issuance of any warrant or other rights therefor)
pursuant to Subsection 8(d).
(d) Issuance of Warrants, Convertible Securities or Other Rights. In the
------------------------------------------------------------
event that, during the Term, the Company shall issue or sell any warrants or
other rights to subscribe for or purchase any Additional Shares of Common Stock
or any Convertible Securities (whether or not the rights to exchange or convert
thereunder are immediately exercisable) and the consideration per share for
which Additional Shares of Common Stock may at any time thereafter be issuable
pursuant to such warrants or other rights or pursuant to the terms of such
Convertible Securities shall be lower than the Per Share Exercise Price, then
the number of shares of Warrant Stock shall be adjusted as provided in
Subsection 8(c) and the aggregate consideration for such maximum number of
Additional Shares of Common Stock shall be deemed to be the minimum
consideration received and receivable by the Company for the issuance of such
Additional Shares of Common Stock pursuant to such warrants or other rights or
pursuant to the terms of such Convertible Securities. No adjustment of the
number of shares of Warrant Stock shall be made under this Subsection 8(d) upon
the issuance of any Convertible Securities that are issued pursuant to the
exercise of any warrants or other subscription or purchase rights therefor, if
any such adjustment shall previously have been made upon the issuance of such
warrants or other rights pursuant to this Subsection 8(d).
(e) Superseding Adjustment to Warrant Stock. If, at any time after any
----------------------------------------
adjustment of the number of shares of Warrant Stock shall have been made
pursuant to the foregoing Subsection 8(d) on the basis of the issuance of
warrants or other rights or the issuance of other Convertible Securities, or
after any new adjustments of the number of shares comprising the Warrant Stock
shall have been made pursuant to this Subsection 8(e), (i) such warrants or
rights or the right of conversion or exchange in such other Convertible
Securities shall expire, and a portion of such warrants or rights, or the right
of conversion or exchange in respect of a portion of such other Convertible
Securities, as the case may be, shall not have been exercised, and/or (ii) the
consideration per share, for which shares of Common Stock are issuable pursuant
to such warrants or rights or the terms of such other Convertible Securities,
shall be increased for any reason, then such previous adjustment shall be
rescinded and annulled and the Additional Shares of Common Stock that were
deemed to have been issued by virtue of the computation made in connection with
the adjustment so rescinded and annulled shall no longer be deemed to have been
issued by virtue of such computation. Thereupon, a recomputation shall be made
of the effect of such rights or options or other Convertible Securities on the
basis of (x) treating the number of Additional Shares of Common Stock, if any,
theretofore actually issued or issuable pursuant to the previous exercise of
such warrants or rights or such right of conversion or exchange, as having been
issued on the date or dates of such exercise and for the consideration actually
received and receivable therefor, and (y) treating any such warrants or rights
or any such other Convertible Securities that then remain outstanding as having
been granted or issued immediately after the time of such increase of the
consideration per share for which shares of Common Stock are issuable under such
warrants or rights or other Convertible Securities; and, if and to the extent
called for by the foregoing provisions of this Section 8 on the basis aforesaid,
a new adjustment of the number of shares of Warrant Stock shall be made, which
new adjustment shall supersede the previous adjustment so rescinded and
annulled.
(f) Other Provisions Applicable to Adjustment Under This Section. The
------------------------------------------------------------
following provisions shall be applicable to the making of adjustments of the
number of shares of Warrant Stock hereinbefore provided for in this Section 8:
(i) Treasury Stock. The sale or other disposition of any issued
--------------
shares of Common Stock owned or held by or for the account of the Company
shall be deemed an issuance thereof for the purposes of this Section 8.
(ii) Computation of Consideration. To the extent that any Additional
----------------------------
Shares of Common Stock or any Convertible Securities or any warrants or
other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for a cash
consideration, the consideration received by the Company therefor shall be
deemed to be the amount of the cash received by the Company therefor, or,
if such Additional Shares of Common Stock or Convertible Securities are
offered by the Company for subscription, the subscription price, or, if
such Additional Shares of Common Stock or Convertible Securities are sold
to underwriters or dealers for public offering without a subscription
offering, the initial public offering price, in any such case excluding any
amounts paid or receivable for accrued interest or accrued dividends (but
without deduction of any compensation, discounts or expenses
paid or incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). To the extent that
such issuance shall be for a consideration other than cash, then, except as
herein otherwise expressly provided, the amount of such consideration shall
be deemed to be the fair value of such consideration at the time of such
issuance as determined in good faith by the Board of Directors of the
Company (but without deduction of any compensation, discounts or expenses
paid or incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). In case any Additional
Shares of Common Stock or Convertible Securities or any warrants or other
rights to subscribe for or purchase such Additional Shares of Common Stock
or Convertible Securities shall be issued in connection with any merger in
which the Company issues any securities, the amount of consideration
therefor shall be deemed to be the fair value, as determined in good faith
by the Board of Directors of the Company, of such portion of the assets and
business of the nonsurviving corporation as such Board in good faith shall
determine to be attributable to such Additional Shares of Common Stock,
Convertible Securities, warrants or other rights, as the case may be. In
the event of any consolidation or merger of the Company in which the
Company is not the surviving corporation or in the event of any sale of all
or substantially all of the assets of the Company for stock or other
securities of any corporation, the Company shall be deemed to have issued a
number of Additional Shares of Common Stock or Convertible Securities of
the other corporation computed on the basis of the actual exchange ratio on
which the transaction was predicated, and the consideration received for
such issuance shall be equal to the fair market value, as determined in
good faith by the Board of Directors of the Company, on the date of such
transaction, of such stock or securities of the other corporation, and if
any such calculation results in adjustment of the number of shares of
Warrant Stock immediately prior to such merger, conversion or sale for
purposes of this Subsection 8(f), such merger, conversion or sale shall be
deemed to have been made after giving effect to such adjustment. The
consideration for any Additional Shares of Common Stock issuable pursuant
to any warrants or other rights to subscribe for or purchase the same shall
be the consideration received by the Company for issuing such warrants or
other rights, plus the additional consideration payable to the Company upon
the exercise of such warrants or other rights. The consideration for any
Additional Shares of Common Stock issuable pursuant to the terms of any
Convertible Securities shall be the consideration received by the Company
for issuing any warrants or other rights to subscribe for or purchase such
Convertible Securities, plus the consideration paid or payable to the
Company in respect of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any, payable to the
Company upon the exercise of the right of conversion or exchange in such
Convertible Securities.
(iii) Fractional Interests. In computing adjustments under this
--------------------
section, fractional interests in Common Stock shall not be taken into
account.
(iv) When Adjustment Not Required; Abandonment of Plan for Dividend
--------------------------------------------------------------
and the Like. If the Company shall declare a dividend or distribution of,
------------
or grant subscription or purchase rights with respect to, Common Stock as
described in this Section 8 and shall, thereafter, legally abandon its plan
to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required and any such
adjustment previously made in respect thereof shall be rescinded and
annulled.
(g) Reorganization, Reclassification, Merger, Consolidation or Disposition
----------------------------------------------------------------------
of Assets. In case the Company shall reorganize its capital, reclassify its
---------
capital stock, merge or consolidate into another corporation, then the number of
shares of stock purchasable upon exercise of this Warrant shall be adjusted to
consist of the number of shares of stock or other securities that a record
holder of the number of shares of Common Stock purchasable upon exercise of this
Warrant immediately prior to such event would own or be entitled to receive
immediately after such event.
(h) No Adjustment. Notwithstanding the foregoing, an adjustment as
-------------
provided in this Section 8 shall not be made if: (a) the Company offers
securities to the public pursuant to a registration statement under the Act, (b)
the Company issues securities pursuant to the acquisition by the Company of any
product, technology, know-how or another corporation by merger, purchase of all
or substantially all of the assets, or any other reorganization whereby the
Company owns over fifty percent (50%) of the voting power of such corporation,
(c) Company issues shares of its capital stock in connection with any stock
split, stock dividend or the Company issues any shares of common stock of the
Company pursuant to options, warrants or rights granted before August 1, 2001,
or granted before or
after the date hereof if granted to purchase shares of such common stock in
favor of employees, directors, officers, strategic partners or consultants of
the Company or any subsidiary thereof pursuant to a stock option plan or
agreement approved by the Company's Board of Directors; provided that such stock
options thereunder, if granted after the date hereof, are granted at a
conversion or exercise price that the Company's Board of Directors determines in
good faith is not less than the fair market value of the securities into which
they are exercisable as of the date of grant, or (d) the Company converts any
securities into Common Stock pursuant to the Company's Certificate of
Incorporation, as amended.
(i) Notice of Adjustment. Whenever the Company takes any action that
--------------------
causes the composition of the Warrant Stock to change under Subsections 8(a)
through 8(g), the Company shall provide the Holder with written notice, in
accordance with Section 13, of such change and the number of shares of Warrant
Stock for which this Warrant is or will become exercisable. In addition to any
other notice required hereunder, the Company shall provide the Holder with a
copy of any notice that the Company is required to provide those Persons holding
shares of Common Stock on the same date such persons receive such notice.
9. Certain Covenants of the Company. The Company has taken all action
--------------------------------
necessary to authorize the issuance of this Warrant and the issuance of shares
of Common Stock upon exercise hereof. The Company covenants and agrees that it
will reserve and set apart and have at all times, free from preemptive rights, a
number of shares of authorized but unissued Common Stock or other securities
deliverable upon the exercise of this Warrant from time to time sufficient to
enable it at any time to fulfill all its obligations hereunder.
10. Entire Agreement. This Warrant contains the entire agreement between the
----------------
Holder and the Company with respect to the Warrant Stock and supersedes all
prior arrangements or understandings with respect thereto.
11. Waiver and Amendment. Any term or provision of this Warrant may be waived
--------------------
at any time by the party that is entitled to the benefits thereof, and any term
or provision of this Warrant may be amended or supplemented at any time by
agreement of the Holder and the Company, except that any waiver of any term or
condition, or any amendment or supplementation, of this Warrant must be in
writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Warrant shall not in any way affect, limit or waive a party's
rights hereunder at any time to enforce strict compliance thereafter with any
term or condition of this Warrant.
12. Illegality. In the event that any one or more of the provisions contained
----------
in this Warrant shall be determined to be invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and enforceability of any
such provision in any other respect and the remaining provisions of this Warrant
shall not, at the election of the party for whom the benefit of the provision
exists, be in any way impaired.
13. Notices. Any notice or other document required or permitted to be given or
-------
delivered to the Holder shall be delivered personally, or sent by certified or
registered mail, to the Holder at the last address shown on the books of the
Company maintained at the Warrant Office for the registration of the Warrant or
at any more recent address of which any Holder shall have notified the Company
in writing in accordance with this Section 13. Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
personally, or sent by certified or registered mail, to the Warrant Office,
attention: Chief Financial Officer. Any notice given by either party hereunder
shall be deemed to be effective upon receipt.
14. Limitation of Liability; Not A Shareholder. No provision of this Warrant
------------------------------------------
shall be construed as conferring upon the Holder the right to vote, consent,
receive dividends or receive notice other than as herein expressly provided in
respect of meetings of shareholders for the election of directors of the Company
or any other matter whatsoever as a shareholder of the Company. No provision
hereof, in the absence of affirmative action by the Holder to purchase Warrant
Stock, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of such Holder for the purchase price of any
Warrant Stock or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
15. Loss, Destruction, Etc. of Warrant. Upon receipt of evidence satisfactory
----------------------------------
to the Company of the loss, theft, mutilation or destruction of the Warrant, and
in the case of any such loss, theft or destruction, upon delivery of a bond of
indemnity in such form and amount as shall be reasonably satisfactory to the
Company, or in the event of such mutilation, upon surrender and cancellation of
the Warrant, the Company shall make and deliver a new
warrant, of like tenor, in lieu of such lost, stolen, destroyed or mutilated
Warrant. Any Warrant issued under the provisions of this Section 15 in lieu of
any Warrant alleged to be lost, destroyed or stolen, or in lieu of any mutilated
Warrant, shall constitute an original contractual obligation on the part of the
Company.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the day and
year first above written.
MCLAREN PERFORMANCE TECHNOLOGIES, INC.
By:_________________________________
Xxxxxx Xxxxx, President
EXHIBIT A
NOTICE OF EXERCISE
Dated: _______________
The undersigned hereby irrevocably elects to exercise its right to purchase
[10% of Option Shares acquired on or before October 1, 2001] shares of the
common stock, $0.00001 par value per share, of McLaren Performance Technologies,
Inc., such right being pursuant to a Warrant dated October 5, 2001, as issued to
EMM McLaren Investment Company, L.L.C. (the "Warrant"), and remits herewith the
sum of [$1.00 x 10% of Option Shares acquired on or before October 1, 2001]
dollars in payment for same in accordance with the terms of the Warrant.
INSTRUCTIONS FOR REGISTRATION OF STOCK (Please typewrite or print in block
letters)
Name: __________________________________________________
Address: __________________________________________________
__________________________________________________
__________________________________________________
Signature: __________________________________________________
EXHIBIT B
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SAID ACTS AND ALL OTHER APPLICABLE SECURITIES LAWS
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
MCLAREN PERFORMANCE TECHNOLOGIES, INC.
Number of Shares: [10% of Option Shares acquired on or before October 1, 2001]
Date of Issuance: October 5, 2001
Date of Expiration: December 31, 2003
FOR VALUE RECEIVED, the undersigned, McLaren Performance Technologies,
Inc., a Delaware corporation (the "Company"), hereby certifies that EMM McLaren
Investment Company, L.L.C., a Michigan limited liability company located at 0000
Xxxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 ("EMM"), is entitled to subscribe for
and purchase, during the period specified in this Warrant, [10% of Option Shares
acquired on or before October 1, 2001] shares of common stock of the Company, at
an exercise price per share equal to the Per Share Exercise Price then in
effect, subject, however, to the provisions and upon the terms and conditions
hereinafter set forth.
1. Definitions. Certain capitalized terms used in this Warrant shall have the
-----------
following meanings:
(a) "Act" means the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
(b) "Additional Shares of Common Stock" means all shares of Common Stock
issued by the Company after the date hereof, except (i) the Warrant Stock, and
(ii) any shares of Common Stock issued pursuant to the exercise of stock options
issued by the Company to its employees pursuant to any Company stock option
plans.
(c) "Common Stock" means the Company's common stock, $0.00001 par value.
(d) "Commission" means the United States Securities and Exchange Commission
or any successor agency.
(e) "Convertible Securities" means evidences of indebtedness, shares of
stock or other securities that are convertible into or exchangeable for shares
of Common Stock.
(f) "Expiration Date" means December 31, 2003.
(g) "Holder" means EMM, or any permitted assignee who may have acquired
this Warrant in accordance with the terms of Section 7.
(h) "Issuance Date" means October 5, 2001.
(i) "Per Share Exercise Price" shall mean $2.00 per share.
(j) "Per Share Market Price" means on any particular date (a) the closing
bid price per share of the Common Stock on such date on NASDAQ or other
registered national stock exchange on which the Common Stock is then listed or
if there is no such price on such date, then the closing bid price on such
exchange or quotation system on the date nearest preceding such date, or (b) if
the Common Stock is not listed then on NASDAQ or any registered national stock
exchange, the closing bid price for a share of Common Stock in the over-the-
counter market, as reported by the OTC Bulletin Board or in the National
Quotation Bureau Incorporated or similar organization or agency succeeding to
its functions of reporting prices) at the close of business on such date, or (c)
if the Common Stock is not then reported by the OTC Bulletin Board or the
National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices), then the average of the "Pink
Sheet" quotes for the relevant conversion period, as determined in good faith by
McLaren's Board of Directors, or (d) if the Common Stock is not then publicly
traded, the fair market value of a share of Common Stock as determined in good
faith by the Company's Board of Directors.
(k) "Person" means any individual, corporation, partnership, trust,
unincorporated organization and any government, and any political subdivision,
instrumentality or agency thereof.
(l) "Registration Rights Agreement" means that certain Registration Rights
Agreement made as of October 5, 2001, by and between the Company and EMM.
(m) "Term" shall have the meaning set forth in Section 2.
(n) "Warrant Stock" means the [10% of Option Shares acquired on or before
October 1, 2001] shares of Common Stock issuable upon the exercise of this
Warrant, subject to adjustment in accordance with Section 8.
(o) "Warrant Office" means 00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000, or such other office of the Company or of any transfer agent of the
Common Stock in the continental United States as to which written notice has
previously been given to the then current Holder of this Warrant.
2. Exercisability; Expiration. The right to subscribe for and purchase not
--------------------------
less than all of the shares of Warrant Stock represented hereby shall commence
on the Issuance Date and shall expire at 5:00 p.m., Detroit time, on the
Expiration Date (such period being the "Term"). The purchase rights represented
by this Warrant may be exercised in whole at any time and from time to time
during the Term. Rights to purchase shares under this Warrant shall expire and
may not be exercised after at 5:00 p.m., eastern daylight savings time, on
Expiration Date.
3. Method of Exercise. To the extent this Warrant is exercisable, to exercise
------------------
this Warrant, the Holder shall deliver to the Company at the Warrant Office in
accordance with Section 13: (a) a Notice of Exercise substantially in the form
attached hereto as Exhibit A duly executed by the Holder, (b) payment of an
amount equal to the product of the Per Share Exercise Price multiplied by the
number of shares of Warrant Stock, which shall be made in cash or by certified
or bank cashier's check payable to the order of the Company, and (c) this
Warrant. An exercise of this Warrant shall be deemed to be effective upon
receipt by the Company of all of the items described in the preceding sentence.
The Company shall thereafter, as promptly as practicable, cause to be issued and
delivered to the Holder a certificate or certificates representing the Warrant
Stock specified in the Notice of Exercise. The stock certificate or
certificates so delivered shall be in denominations of shares as may be
specified in said notice and shall be issued in the name of the Holder. The
Company shall pay all expenses, taxes (excluding capital gains and income taxes)
and other charges payable in connection with the preparation, issuance and
delivery of stock certificates.
4. Shares to be Fully Paid and Non-Assessable. The Warrant Stock shall be
------------------------------------------
validly issued, fully paid, non- assessable and free from preemptive rights.
5. No Fractional Shares to be Issued. The Company shall not be required upon
---------------------------------
any exercise of this Warrant to issue a certificate representing any fraction of
a share of Common Stock.
6. Legend on Warrant Stock. Each certificate representing the Warrant Stock,
-----------------------
unless at the time of exercise such shares are registered under the Act, shall
bear substantially the following legend (and any additional legend required by
any national securities exchanges upon which such shares may, at the time of
such exercise, be listed or under applicable securities laws): THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE FEDERAL
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THEY
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, ENCUMBERED, OR
OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE ISSUER, SUCH TRANSFER WOULD BE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACTS OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION.
7. Ownership of Warrant; Restrictions on Transfer. The Company may deem and
----------------------------------------------
treat the Person in whose name this Warrant is registered as the Holder and
owner hereof (notwithstanding any notations of ownership or writing hereon made
by anyone other than the Company) for all purposes and shall not be affected by
any notice to the contrary. Neither this Warrant, nor any rights hereunder, are
transferable, in whole or in part, without the prior written consent of the
Company.
8. Adjustments to Number of Shares of Warrant Stock. The number of shares of
------------------------------------------------
Warrant Stock shall be subject to adjustment from time to time in accordance
with this Section 8, including the limitations set forth in Subsection 8(h).
(a) Stock Dividends, Subdivision and Combination. In the event that,
--------------------------------------------
during the Term, the Company shall: (i) pay a dividend or other distribution of
Common Stock to the holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common
Stock, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock; then the number of shares of Warrant Stock
shall be adjusted so as to consist of the number of shares of Common Stock that
a record holder of the number of shares of Common Stock comprising the Warrant
Stock immediately prior to the happening of such event would own or be entitled
to receive after the happening of such event. The adjustments required by this
subsection shall be made whenever and as often as any specified event requiring
an adjustment shall occur.
(b) Certain Other Dividends and Distributions. In the event that, during
-----------------------------------------
the Term, the Company intends to pay a dividend or other distribution of: (i)
cash, or (ii) any evidences of its indebtedness, any other securities or
property of any nature whatsoever (other than cash or Common Stock); then at
least ten (10) business days prior to the record date to determine shareholders
entitled to receive such dividend or distribution, the Company shall give notice
of such proposed dividend or distribution to the Holder for the purpose of
enabling the Holder to exercise this Warrant, and thereby participate in such
dividend or distribution.
(c) Issuance of Additional Shares. In the event that, during the Term, the
-----------------------------
Company shall issue or sell any Additional Shares of Common Stock for a
consideration per share less than the Per Share Market Price, then the number of
shares of Warrant Stock shall be adjusted to that number determined by
multiplying the number of shares of Warrant Stock immediately prior to such
adjustment by a fraction: (i) the numerator of which shall be the sum of the
number of shares of Common Stock issued and outstanding, plus the number of
Additional Shares of Common Stock deemed to be outstanding pursuant to
Subsection 8(d) immediately prior to the issuance of such Additional Shares of
Common Stock, plus the number of such Additional Shares of Common Stock so
issued; and (ii) the denominator of which shall be the sum of the number of
shares of Common Stock issued and outstanding, plus the number of Additional
Shares of Common Stock deemed to be outstanding pursuant to Subsection 8(d)
immediately prior to the issuance of such Additional Shares of Common Stock,
plus the number of shares of Common Stock that the aggregate consideration for
the total number of such Additional Shares of Common Stock so issued would
purchase at the Per Share Market Price. The provisions of this Subsection 8(c)
shall not apply to any issuance of Additional Shares of Common Stock for which
an adjustment is provided under Subsection 8(a). No adjustment of the number of
shares of Warrant Stock shall be made under this subsection upon the issuance of
any Additional Shares of Common Stock that are issued pursuant to the exercise
of any warrants or other subscription or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any Convertible Securities, if
any such adjustment shall previously have been made upon the issuance of such
warrants or other rights or upon the issuance
of such Convertible Securities (or upon the issuance of any warrant or other
rights therefor) pursuant to Subsection 8(d).
(d) Issuance of Warrants, Convertible Securities or Other Rights. In the
------------------------------------------------------------
event that, during the Term, the Company shall issue or sell any warrants or
other rights to subscribe for or purchase any Additional Shares of Common Stock
or any Convertible Securities (whether or not the rights to exchange or convert
thereunder are immediately exercisable) and the consideration per share for
which Additional Shares of Common Stock may at any time thereafter be issuable
pursuant to such warrants or other rights or pursuant to the terms of such
Convertible Securities shall be lower than the Per Share Exercise Price, then
the number of shares of Warrant Stock shall be adjusted as provided in
Subsection 8(c) and the aggregate consideration for such maximum number of
Additional Shares of Common Stock shall be deemed to be the minimum
consideration received and receivable by the Company for the issuance of such
Additional Shares of Common Stock pursuant to such warrants or other rights or
pursuant to the terms of such Convertible Securities. No adjustment of the
number of shares of Warrant Stock shall be made under this Subsection 8(d) upon
the issuance of any Convertible Securities that are issued pursuant to the
exercise of any warrants or other subscription or purchase rights therefor, if
any such adjustment shall previously have been made upon the issuance of such
warrants or other rights pursuant to this Subsection 8(d).
(e) Superseding Adjustment to Warrant Stock. If, at any time after any
---------------------------------------
adjustment of the number of shares of Warrant Stock shall have been made
pursuant to the foregoing Subsection 8(d) on the basis of the issuance of
warrants or other rights or the issuance of other Convertible Securities, or
after any new adjustments of the number of shares comprising the Warrant Stock
shall have been made pursuant to this Subsection 8(e), (i) such warrants or
rights or the right of conversion or exchange in such other Convertible
Securities shall expire, and a portion of such warrants or rights, or the right
of conversion or exchange in respect of a portion of such other Convertible
Securities, as the case may be, shall not have been exercised, and/or (ii) the
consideration per share, for which shares of Common Stock are issuable pursuant
to such warrants or rights or the terms of such other Convertible Securities,
shall be increased for any reason, then such previous adjustment shall be
rescinded and annulled and the Additional Shares of Common Stock that were
deemed to have been issued by virtue of the computation made in connection with
the adjustment so rescinded and annulled shall no longer be deemed to have been
issued by virtue of such computation. Thereupon, a recomputation shall be made
of the effect of such rights or options or other Convertible Securities on the
basis of (x) treating the number of Additional Shares of Common Stock, if any,
theretofore actually issued or issuable pursuant to the previous exercise of
such warrants or rights or such right of conversion or exchange, as having been
issued on the date or dates of such exercise and for the consideration actually
received and receivable therefor, and (y) treating any such warrants or rights
or any such other Convertible Securities that then remain outstanding as having
been granted or issued immediately after the time of such increase of the
consideration per share for which shares of Common Stock are issuable under such
warrants or rights or other Convertible Securities; and, if and to the extent
called for by the foregoing provisions of this Section 8 on the basis aforesaid,
a new adjustment of the number of shares of Warrant Stock shall be made, which
new adjustment shall supersede the previous adjustment so rescinded and
annulled.
(f) Other Provisions Applicable to Adjustment Under This Section. The
------------------------------------------------------------
following provisions shall be applicable to the making of adjustments of the
number of shares of Warrant Stock hereinbefore provided for in this Section 8:
(i) Treasury Stock. The sale or other disposition of any issued
--------------
shares of Common Stock owned or held by or for the account of the Company
shall be deemed an issuance thereof for the purposes of this Section 8.
(ii) Computation of Consideration. To the extent that any Additional
----------------------------
Shares of Common Stock or any Convertible Securities or any warrants or
other rights to subscribe for or purchase any Additional Shares of Common
Stock or any Convertible Securities shall be issued for a cash
consideration, the consideration received by the Company therefor shall be
deemed to be the amount of the cash received by the Company therefor, or,
if such Additional Shares of Common Stock or Convertible Securities are
offered by the Company for subscription, the subscription price, or, if
such Additional Shares of Common Stock or Convertible Securities are sold
to underwriters or dealers for public offering without a subscription
offering, the initial public offering price, in any such case excluding any
amounts paid or receivable for accrued interest or accrued dividends (but
without deduction of any compensation, discounts or expenses
paid or incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). To the extent that
such issuance shall be for a consideration other than cash, then, except as
herein otherwise expressly provided, the amount of such consideration shall
be deemed to be the fair value of such consideration at the time of such
issuance as determined in good faith by the Board of Directors of the
Company (but without deduction of any compensation, discounts or expenses
paid or incurred by the Company for and in the underwriting of, or
otherwise in connection with, the issuance thereof). In case any Additional
Shares of Common Stock or Convertible Securities or any warrants or other
rights to subscribe for or purchase such Additional Shares of Common Stock
or Convertible Securities shall be issued in connection with any merger in
which the Company issues any securities, the amount of consideration
therefor shall be deemed to be the fair value, as determined in good faith
by the Board of Directors of the Company, of such portion of the assets and
business of the nonsurviving corporation as such Board in good faith shall
determine to be attributable to such Additional Shares of Common Stock,
Convertible Securities, warrants or other rights, as the case may be. In
the event of any consolidation or merger of the Company in which the
Company is not the surviving corporation or in the event of any sale of all
or substantially all of the assets of the Company for stock or other
securities of any corporation, the Company shall be deemed to have issued a
number of Additional Shares of Common Stock or Convertible Securities of
the other corporation computed on the basis of the actual exchange ratio on
which the transaction was predicated, and the consideration received for
such issuance shall be equal to the fair market value, as determined in
good faith by the Board of Directors of the Company, on the date of such
transaction, of such stock or securities of the other corporation, and if
any such calculation results in adjustment of the number of shares of
Warrant Stock immediately prior to such merger, conversion or sale for
purposes of this Subsection 8(f), such merger, conversion or sale shall be
deemed to have been made after giving effect to such adjustment. The
consideration for any Additional Shares of Common Stock issuable pursuant
to any warrants or other rights to subscribe for or purchase the same shall
be the consideration received by the Company for issuing such warrants or
other rights, plus the additional consideration payable to the Company upon
the exercise of such warrants or other rights. The consideration for any
Additional Shares of Common Stock issuable pursuant to the terms of any
Convertible Securities shall be the consideration received by the Company
for issuing any warrants or other rights to subscribe for or purchase such
Convertible Securities, plus the consideration paid or payable to the
Company in respect of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any, payable to the
Company upon the exercise of the right of conversion or exchange in such
Convertible Securities.
(iii) Fractional Interests. In computing adjustments under this
--------------------
section, fractional interests in Common Stock shall not be taken into
account.
(iv) When Adjustment Not Required; Abandonment of Plan for Dividend
--------------------------------------------------------------
and the Like. If the Company shall declare a dividend or distribution of,
------------
or grant subscription or purchase rights with respect to, Common Stock as
described in this Section 8 and shall, thereafter, legally abandon its plan
to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required and any such
adjustment previously made in respect thereof shall be rescinded and
annulled.
(g) Reorganization, Reclassification, Merger, Consolidation or Disposition
----------------------------------------------------------------------
of Assets. In case the Company shall reorganize its capital, reclassify its
---------
capital stock, merge or consolidate into another corporation, then the number of
shares of stock purchasable upon exercise of this Warrant shall be adjusted to
consist of the number of shares of stock or other securities that a record
holder of the number of shares of Common Stock purchasable upon exercise of this
Warrant immediately prior to such event would own or be entitled to receive
immediately after such event.
(h) No Adjustment. Notwithstanding the foregoing, an adjustment as
-------------
provided in this Section 8 shall not be made if: (a) the Company offers
securities to the public pursuant to a registration statement under the Act, (b)
the Company issues securities pursuant to the acquisition by the Company of any
product, technology, know-how or another corporation by merger, purchase of all
or substantially all of the assets, or any other reorganization whereby the
Company owns over fifty percent (50%) of the voting power of such corporation,
(c) Company issues shares of its capital stock in connection with any stock
split, stock dividend or the Company issues any shares of common stock of the
Company pursuant to options, warrants or rights granted before August 1, 2001,
or granted before or
after the date hereof if granted to purchase shares of such common stock in
favor of employees, directors, officers, strategic partners or consultants of
the Company or any subsidiary thereof pursuant to a stock option plan or
agreement approved by the Company's Board of Directors; provided that such stock
options thereunder, if granted after the date hereof, are granted at a
conversion or exercise price that the Company's Board of Directors determines in
good faith is not less than the fair market value of the securities into which
they are exercisable as of the date of grant, or (d) the Company converts any
securities into Common Stock pursuant to the Company's Certificate of
Incorporation, as amended.
(i) Notice of Adjustment. Whenever the Company takes any action that
--------------------
causes the composition of the Warrant Stock to change under Subsections 8(a)
through 8(g), the Company shall provide the Holder with written notice, in
accordance with Section 13, of such change and the number of shares of Warrant
Stock for which this Warrant is or will become exercisable. In addition to any
other notice required hereunder, the Company shall provide the Holder with a
copy of any notice that the Company is required to provide those Persons holding
shares of Common Stock on the same date such persons receive such notice.
9. Certain Covenants of the Company. The Company has taken all action
--------------------------------
necessary to authorize the issuance of this Warrant and the issuance of shares
of Common Stock upon exercise hereof. The Company covenants and agrees that it
will reserve and set apart and have at all times, free from preemptive rights, a
number of shares of authorized but unissued Common Stock or other securities
deliverable upon the exercise of this Warrant from time to time sufficient to
enable it at any time to fulfill all its obligations hereunder.
10. Entire Agreement. This Warrant contains the entire agreement between the
----------------
Holder and the Company with respect to the Warrant Stock and supersedes all
prior arrangements or understandings with respect thereto.
11. Waiver and Amendment. Any term or provision of this Warrant may be waived
--------------------
at any time by the party that is entitled to the benefits thereof, and any term
or provision of this Warrant may be amended or supplemented at any time by
agreement of the Holder and the Company, except that any waiver of any term or
condition, or any amendment or supplementation, of this Warrant must be in
writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Warrant shall not in any way affect, limit or waive a party's
rights hereunder at any time to enforce strict compliance thereafter with any
term or condition of this Warrant.
12. Illegality. In the event that any one or more of the provisions contained
----------
in this Warrant shall be determined to be invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and enforceability of any
such provision in any other respect and the remaining provisions of this Warrant
shall not, at the election of the party for whom the benefit of the provision
exists, be in any way impaired.
13. Notices. Any notice or other document required or permitted to be given or
-------
delivered to the Holder shall be delivered personally, or sent by certified or
registered mail, to the Holder at the last address shown on the books of the
Company maintained at the Warrant Office for the registration of the Warrant or
at any more recent address of which any Holder shall have notified the Company
in writing in accordance with this Section 13. Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
personally, or sent by certified or registered mail, to the Warrant Office,
attention: Chief Financial Officer. Any notice given by either party hereunder
shall be deemed to be effective upon receipt.
14. Limitation of Liability; Not A Shareholder. No provision of this Warrant
------------------------------------------
shall be construed as conferring upon the Holder the right to vote, consent,
receive dividends or receive notice other than as herein expressly provided in
respect of meetings of shareholders for the election of directors of the Company
or any other matter whatsoever as a shareholder of the Company. No provision
hereof, in the absence of affirmative action by the Holder to purchase Warrant
Stock, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of such Holder for the purchase price of any
Warrant Stock or as a shareholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.
15. Loss, Destruction, Etc. of Warrant. Upon receipt of evidence satisfactory
----------------------------------
to the Company of the loss, theft, mutilation or destruction of the Warrant, and
in the case of any such loss, theft or destruction, upon delivery of a bond of
indemnity in such form and amount as shall be reasonably satisfactory to the
Company, or in the event of such mutilation, upon surrender and cancellation of
the Warrant, the Company shall make and deliver a new warrant, of like tenor, in
lieu of such lost, stolen, destroyed or mutilated Warrant. Any Warrant issued
under the
provisions of this Section 15 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or in lieu of any mutilated Warrant, shall constitute an
original contractual obligation on the part of the Company.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the day and
year first above written.
MCLAREN PERFORMANCE TECHNOLOGIES, INC.
By:_________________________________
Xxxxxx Xxxxx, President
EXHIBIT A
NOTICE OF EXERCISE
Dated: _______________
The undersigned hereby irrevocably elects to exercise its right to purchase
[10% of Option Shares acquired on or before October 1, 2001] shares of the
common stock, $0.00001 par value per share, of McLaren Performance Technologies,
Inc., such right being pursuant to a Warrant dated October 5, 2001, as issued to
EMM McLaren Investment Company, L.L.C. (the "Warrant"), and remits herewith the
sum of [$2.00 x 10% of Option Shares acquired on or before October 1, 2001]
dollars in payment for same in accordance with the terms of the Warrant.
INSTRUCTIONS FOR REGISTRATION OF STOCK (Please typewrite or print in block
letters)
Name: _______________________________________________________
Address: _______________________________________________________
_______________________________________________________
_______________________________________________________
Signature: _______________________________________________________
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the 5th
day of October, 2001, by and between McLAREN PERFORMANCE TECHNOLOGIES, INC., a
Delaware corporation located at 00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000 (the "Company"), and EMM McLAREN INVESTMENT COMPANY, L.L.C., a Michigan
limited liability company located at 0000 Xxxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx
00000 (the "Purchaser").
RECITALS:
A. The Purchaser is the purchaser of [Option Shares acquired on or before
October 1, 2001] shares of Common Stock (as defined below) pursuant to a certain
McLaren Stock Option Purchase Agreement dated as of August 1, 2001, by and
between the Purchaser and the Company (the "Purchase Agreement").
B. The Purchaser has the right to purchase an additional [20% of Option
Shares acquired on or before October 1, 2001] shares of Common Stock pursuant to
two Warrants each dated as of October 5, 2001, issued to the Purchaser by the
Company (the "Warrants").
C. The Company and the Purchaser desire to set forth the registration rights
to be granted to the Purchaser.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
-----------
the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock of the Company, $0.00001 par value.
The terms "register", "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means the shares of Common Stock purchased by the
Purchaser pursuant to the terms of the Subscription Agreement, and the shares of
Common Stock issuable to Purchaser upon exercise of the Warrants.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute promulgated in replacement thereof, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Securities" shall mean the Registrable Securities and any securities issued in
respect thereto or upon conversion thereof.
2. Demand Registration.
-------------------
(a) Demand Rights. Subject to the limitations set forth in Section 5
-------------
hereof, at any time beginning 180 days after the date hereof, one time only,
upon written demand by the Purchaser to the Company demanding registration of
not less than 200,000 shares of Common Stock that constitute Registrable
Securities, the Company shall, as soon as practicable, use its reasonable best
efforts to effect a registration with respect to such Registrable Securities (as
adjusted for stock splits, stock dividends, recapitalizations and similar
events), including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under applicable blue sky
or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act, as would permit or facilitate the
sale and distribution of all or such portion of such Registrable Securities as
are
specified in such request; provided that the Company shall not be obligated to
take any action to effect any such registration, qualification or compliance
pursuant to this Section 2:
(i) which would require the Company to prepare and file a form of
registration statement other than Form S-3 or any successor form;
(ii) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(iii) within the one hundred twenty (120) day period immediately
following the effective date of a registration statement pertaining to a
public offering of Common Stock for its own account or for the account of
another shareholder of the Company, other than a registration relating
solely to employee benefit plans or securities issued or issuable to
employees or consultants (including a registration on Form S-8), a
registration relating solely to a Commission Rule 145 transaction, a
registration on Form S-4 in connection with a merger, acquisition,
divestiture, reorganization or similar event or a registration on any
registration form which does not include substantially the same information
as would be required to be included in a registration statement covering
the sale of Registrable Securities;
(iv) after the Company has effected one (1) registration pursuant to
this Section 2 and such registration has been declared or ordered
effective; or
(v) if the Company furnishes to the Purchaser a letter signed by
the Chief Executive Officer or the President of the Company stating that
the Company intends to file a registration statement in connection with a
bona fide firm commitment underwritten registration for securities to be
offered for its own account (the "Intended Registration"); provided,
however, that if the Company does not file with the Commission its Intended
Registration within ninety (90) days of the request of the Purchaser, the
Company shall file the requested registration statement within thirty (30)
days of the termination of such ninety (90) day period.
(b) Underwriting. The sale of Registrable Securities pursuant to
------------
this Section 2 must be made by means of a firm commitment underwriting
through underwriters who are reasonably acceptable to the Company and the
Purchaser that are proposed to be distributed through such underwriting.
The right of the Purchaser to registration pursuant to this Section 2 shall
be conditioned upon the Purchaser's participation in such underwriting and
the inclusion of the Purchaser's Registrable Securities in the underwriting
to the extent requested by the Purchaser as may be permitted herein. The
Company and the Purchaser shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 2(b), if
the underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten and so advises the Purchaser in
writing, then the Purchaser shall so advise the Company and the number of
Registrable Securities that may be included in the registration and
underwriting shall be allocated first to the Purchaser; second to the
Company; and third to other shareholders of the Company who have requested
to sell in the registration. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration; provided, however, that, notwithstanding
Section 2(a)(iv) above, Purchaser's demand registration rights under this
Section 2 shall survive an effective registration under this Section 2 with
respect to any Registrable Securities which are so excluded subject to the
limitations of Sections 2(a)(i), (ii), (iii), and (v). If the Purchaser
disapproves of the terms of the underwriting, the Purchaser may elect to
withdraw therefrom by written notice to the Company and the underwriter.
The Registrable Securities and/or other securities so withdrawn from such
underwriting shall also be withdrawn from such registration. In the event
of such withdrawal, the Purchaser's demand registration rights under
Section 2(a) shall immediately terminate. If the underwriter has not
limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account or the account of others
in such registration if the underwriter so agrees and if the number of
Registrable Securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(c) Delay of Registration. If the Company shall furnish to the
---------------------
Purchaser: (i) a certificate signed by the President of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
registration statement to be filed on or before the date filing would be
required, and (ii) a letter from the Company's underwriter confirming that the
filing of such registration statement would be severely detrimental to the
Company and its shareholders, then the Company may direct that such request for
registration be delayed for a period not in excess of ninety (90) days.
3. Piggyback Registration.
----------------------
(a) Piggyback Rights. If at any time after the date hereof, the Company
----------------
shall determine to register for sale for cash any of its Common Stock, for its
own account or for the account of others (other than the Purchaser), other than
a registration relating solely to employee benefit plans or securities issued or
issuable to employees or consultants (including a registration on Form S-8), a
registration relating solely to a Commission Rule 145 transaction, a
registration on Form S-4 in connection with a merger, acquisition, divestiture,
reorganization or similar event or a registration on any registration form which
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company promptly will give to the Purchaser written notice
thereof and shall use its reasonable best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request, made within ten (10) days after
receipt of such written notice from the Company, by the Purchaser. However, the
Company may, without the consent of the Purchaser, withdraw such registration
statement prior to its becoming effective if the Company has abandoned its
proposal to register the securities proposed to be registered thereby.
(b) Underwriting. If the registration of which the Company gives notice
------------
is for a registered public offering involving an underwriting, the Company shall
so advise the Purchaser as a part of the written notice given pursuant to
Section 3(a). In such event the right of the Purchaser to registration pursuant
to Section 3(a) shall be conditioned upon the Purchaser's participation in such
underwriting and the inclusion of the Purchaser's Registrable Securities in the
underwriting to the extent provided herein. The Purchaser shall (together with
the Company and any other shareholders of the Company distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
3(b), if the underwriter or the Company determines that marketing factors
require a limitation of the number of shares to be underwritten, the underwriter
may exclude some or all Registrable Securities from such registration and
underwriting. The Company shall so advise the Purchaser, and the number of
shares of Registrable Securities that may be included in the registration and
underwriting, if any, shall be determined as follows: The number of shares of
Common Stock that may be included in the registration and underwriting shall be
allocated first to the Company and then to all selling shareholders, including
the Purchaser, who have requested to sell in the registration on a pro rata
basis according to the number of shares of Common Stock, including Registrable
Securities, requested to be included.
(c) Exclusion. No Registrable Securities excluded from the underwriting
---------
by reason of the underwriter's marketing limitation shall be included in such
registration. If the Purchaser disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company and the underwriter. The Registrable Securities and/or other
securities so withdrawn from such underwriting shall also be withdrawn from such
registration; provided, however, that, if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration.
4. Registration Procedures. In the event of a registration, qualification or
-----------------------
compliance effected by the Company pursuant to Section 2 or Section 3, the
Company will keep the Purchaser advised in writing as to the initiation of each
registration, qualification and compliance and as to the completion thereof. At
its expense, the Company will use its reasonable best efforts to:
(a) Keep such registration, qualification or compliance effective for a
period of ninety (90) days or until the Purchaser has completed the distribution
described in the registration statement relating thereto, whichever first
occurs; and
(b) Furnish such number of prospectuses and other documents incident
thereto as the Purchaser from time to time may reasonably request.
5. Rule 144(k). Notwithstanding anything to the contrary contained herein,
-----------
the Purchaser shall not have rights to a registration under Section 2 or Section
3 after the time that the Purchaser could sell any of its Registrable Securities
pursuant to Rule 144(k) promulgated under the Securities Act or any successor
rule thereto.
6. Registration Expenses.
---------------------
(a) With respect to a registration pursuant to Section 2, the Purchaser
and the Company shall each pay 50% of all registration, filing and NASD fees,
printing expenses, all fees and expenses of complying with securities or blue
sky laws, and the fees and disbursements of counsel for the Company and the
Purchaser and their respective independent accountants; provided that the
Company shall pay all of its own underwriting discounts, commissions, transfer
taxes and fees incurred as a result of the Company's inclusion of securities
(other than the Purchaser's Registrable Securities) in such offering.
(b) With respect to a registration pursuant to Section 3, the Company
shall pay all registration, filing and NASD fees, printing expenses, all fees
and expenses of complying with securities or blue sky laws, and the fees and
disbursements of counsel for the Company and of its independent accountants;
provided that the Purchaser shall pay all of its own underwriting discounts,
commissions, transfer taxes and fees and disbursements of counsel and other
experts retained by the Purchaser.
7. Assignment of Rights. The Purchaser may not assign its rights under this
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Agreement to any party without the prior written consent of the Company which
consent shall not be unreasonably withheld or delayed, and any attempted
transfer in violation of this Section 7 shall be null and void.
8. Information of Purchaser. The Purchaser shall promptly furnish to the
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Company such information regarding the Purchaser and the distribution proposed
by the Purchaser as the Company may request in writing for the preparation of
and/or inclusion in a registration statement.
9. Standstill Agreement. In connection with each offering pursuant to a
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registration statement for which the Purchaser is or may be eligible to include
Registrable Securities pursuant to this Agreement, the Purchaser shall refrain
from selling any Registrable Securities not included in such registration during
the period of distribution of securities by such underwriters pursuant to such
registration and the period in which the underwriting syndicate participates in
the after market; provided, however, that such period shall not exceed the
shortest such period applicable to any person subject to such restriction in
connection with such registration. The Company may impose stop- transfer
instructions with respect to the shares (or securities) pursuant to the
foregoing restriction until the end of such period.
10. Indemnification.
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(a) In the event of the registration of Registrable Securities
hereunder,, the Company shall indemnify and hold harmless the Purchaser
against any losses, claims, damages or liabilities to which the Purchaser,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which such
shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances in which they
were made not misleading, and the Company shall reimburse the Purchaser for
any legal or any other expenses reasonably incurred by him in connection
with investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of the Purchaser. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or on behalf of the Company.
(b) In the event of the registration of Registrable Securities hereunder,
the Purchaser shall indemnify and hold harmless the Company, its directors and
officers and each other Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which the Company or any such director or
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information about the Purchaser furnished to the Company through an
instrument duly executed by the Purchaser specifically stating that it is for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling person
and shall survive the transfer by the Purchaser of such shares.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 10(a) or (b) (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such
action; provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Section 10(a) or (b), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party shall be entitled
to participate in and to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. Neither an indemnified nor an indemnifying party shall be liable
for any settlement of any action or proceeding effected without its consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
11. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Michigan applicable to contracts
entered into and to be performed entirely within the State of Michigan.
(b) Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full and entire
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understanding and agreement between the parties with regard to the subjects
hereof.
(d) Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be effective three (3) days
after mailed by first-class mail, postage prepaid, or otherwise delivered by
hand or by messenger, addressed (a) if to a Purchaser, at such Purchaser's
address set forth in the introduction to this Agreement, or at such other
address as such Purchaser shall have furnished to the Company in writing, or (b)
if to the Company, at such address as the Company shall have furnished to the
Purchaser in writing.
(e) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. In the case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(g) Amendments. The provisions of this Agreement may be amended at any
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time and from time to time, and particular provisions of this Agreement may be
waived, with and only with an agreement or consent in writing signed by the
Company and the Purchaser.
This Agreement is hereby executed as of the date first above written.
McLAREN PERFORMANCE TECHNOLOGIES, INC.
By:_________________________________
Xxxxxx Xxxxx, President
EMM McLAREN INVESTMENT COMPANY, L.L.C.
By:_________________________________
Its:________________________________
