EXHIBIT 4.3
EXHIBIT B
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
WARRANT
FOR COMMON STOCK OF
XXXXXXXX, INC.
Warrant No. ____
THIS CERTIFIES that, for value received ________________,
________________, or its permitted assigns (collectively, the "Holder"), is
entitled to purchase from Xxxxxxxx, Inc., a Minnesota corporation (the
"Company"), at any time, and from time to time, during the exercise period
referred to in Section 1 hereof ____________________________________ fully paid,
validly issued and nonassessable shares (the "Warrant Shares") of common stock
of the Company, par value $0.25 (the "Common Stock"), at the exercise price of
$.01 per share (the "Warrant Price"). Securities issuable upon exercise of this
Warrant and the exercise price payable therefor are subject to adjustment from
time to time as hereinafter set forth. As used herein, the term "Warrant" shall
include any warrant or warrants hereafter issued in consequence of the exercise
of this Warrant in part or transfer of this Warrant in whole or in part. This
Warrant is being issued pursuant to that certain Subordinated Notes and Warrant
Purchase Agreement dated as of October 25, 2001 between the Company, and the
Holder and other parties named therein (the "Purchase Agreement").
1. Exercise; Payment for Ownership Interest.
(a) Upon the terms and subject to the conditions set forth herein, this
Warrant may be exercised in whole or in part by the Holder hereof at any time,
or from time to time, on or after the Closing (as defined in the Purchase
Agreement) and prior to 5 p.m. Minneapolis time on the seventh anniversary of
the date of the Closing, by presentation
and surrender of this Warrant to the principal offices of the Company, or at the
office of its Transfer Agent (as hereinafter defined), if any, together with the
Purchase Form annexed hereto, duly executed, and accompanied by payment to the
Company of an amount equal to the Warrant Price multiplied by the number of
Warrant Shares as to which this Warrant is then being exercised. The Holder of
this Warrant shall be deemed to be a shareholder of the Warrant Shares as to
which this Warrant is exercised in accordance herewith effective immediately
after the close of business on the date on which the Holder shall have delivered
to the Company this Warrant in proper form for exercise and payment of the
Warrant Price for the number of Warrant Shares as to which the exercise is being
made, notwithstanding that the stock transfer books of the Company shall be then
closed or that certificates representing such Warrant Shares shall not then be
physically delivered to the Holder.
(b) All or any portion of the Warrant Price may be paid by surrendering
Warrants effected by presentation and surrender of this Warrant to the Company,
or at the office of its Transfer Agent, if any, with a Cashless Exercise Form
annexed hereto duly executed (a "Cashless Exercise"). Such presentation and
surrender shall be deemed a waiver by the Company of the Holder's obligation to
pay all or any portion of the aggregate Warrant Price. Except as provided in
Section 3(b) below, in the event of a Cashless Exercise, the Holder shall
exchange its Warrant for that number of shares of Common Stock determined by
multiplying the number of Warrant Shares for which the Holder desires to
exercise this Warrant by a fraction, the numerator of which shall be the
difference between the then current market price per share of the Common Stock
and the Warrant Price, and the denominator of which shall be the then current
market price per share of Common Stock. For purposes of any computation under
this Section 1(b), the then current market price per share of Common Stock at
any date shall be deemed to be the average for the ten consecutive business days
immediately prior to the Cashless Exercise of the daily closing prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is admitted to trading or listed, or if not listed or admitted to trading
on any such exchange, the closing prices as reported by the Nasdaq National
Market or, if applicable, the Nasdaq SmallCap Market, or if not then included
for quotation on the Nasdaq National Market or the Nasdaq SmallCap Market, the
average of the highest reported bid and lowest reported asked prices as reported
by the OTC Bulletin Board or the National Quotations Bureau, as the case may be,
or if not then publicly traded, the fair market price, not less than book value
thereof, of the Common Stock as determined in good faith by the independent
members of the Board of Directors of the Company.
(c) If this Warrant shall be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise
and surrender of this Warrant, the Company (i) will issue and deliver to the
Holder a certificate or certificates in the name of the Holder for the largest
whole number of Warrant Shares to which the Holder shall be entitled and, if
this Warrant is exercised in whole, in lieu of any fractional Warrant Share to
which the Holder otherwise might be entitled, cash in an amount equal to the
fair value of such fractional Warrant Share (determined in such reasonable and
equitable manner as the Board of Directors of the Company shall in good faith
determine), and (ii) will deliver to the Holder such other securities,
properties and cash which the Holder may be entitled to receive upon such
exercise, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
2. Anti-Dilution Provisions. The Warrant Price in effect at any time
and the number and kind of securities issuable upon exercise of this Warrant
shall be subject to adjustment from time to time upon happening of certain
events as follows:
2.1 Reorganization, Reclassification, Consolidation, Merger or Sale. If
any capital reorganization, reclassification or any other change of capital
stock of the Company, or any consolidation or merger of the Company with another
person, or the sale or transfer of all or substantially all of its assets to
another person shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for their shares of Common Stock, then provision shall be made by
the Company, in accordance with this Section 2.1, whereby the Holder hereof
shall thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in this Warrant and in addition to or in
exchange for, as applicable, the Warrant Shares subject to this Warrant
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such securities or assets as would have been issued
or payable with respect to or in exchange for the aggregate Warrant Shares
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby if exercise of the Warrant had occurred immediately
prior to such reorganization, reclassification, consolidation, merger or sale.
The Company will not effect any such consolidation, merger, sale, transfer or
lease unless prior to the consummation thereof the successor entity (if other
than the Company) resulting from such consolidation or merger or the entity
purchasing such assets shall assume by written instrument (i) the obligation to
deliver to the Holder such securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and (ii) all other
obligations of the Company under this Warrant; provided, however, that the
failure to comply with the foregoing shall not affect the validity or legality
of such consolidation, merger, sale, transfer or lease. The provisions of this
Section 2.1 shall similarly apply to successive consolidations, mergers,
exchanges, sales, transfers or leases. In the event that in connection with any
such capital reorganization or reclassification, consolidation, merger, sale or
transfer, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Common Stock, any such issue
shall be treated as an issue of Common Stock covered by the provisions of
Section 2.2 hereof.
2.2 Stock Dividends and Securities Distributions. If, at any time or
from time to time after the date of this Warrant, the Company shall distribute
to the holders of shares of Common Stock (i) securities (including rights,
warrants, options or another form of convertible securities), (ii) property,
other than cash, or (iii) cash, without fair payment therefor, then, and in each
such case, the Holder, upon the exercise of this Warrant, shall be entitled to
receive such securities, property and cash which the Holder would hold on the
date of such exercise if, on the date of the distribution, the Holder had been
the holder of record of the shares of Common Stock issued upon such exercise
and, during the period from the date of this Warrant to and including the date
of such exercise, had retained such shares of Common Stock and the securities,
property and cash receivable by the Holder during such period, subject, however,
to the Holder agreeing to any conditions to such distribution as were required
of all other holders of shares of Common Stock in connection with such
distribution.
2.3 Other Adjustments. In addition to those adjustments set forth in
Sections 2.1 and 2.2, but without duplication of the adjustments to be made
under such Sections, if the Company:
(i) declares or pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(ii) subdivides or reclassifies its outstanding shares of Common Stock
into a greater number of shares;
(iii) combines or reclassifies its outstanding shares of Common Stock
into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital
stock other than Common Stock; and/or
(v) issues, by reclassification of its Common Stock, any shares of its
capital stock;
then the number and kind of Warrant Shares purchasable upon exercise of
this Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the events described above had this Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 2.3 shall
become effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or issuance. If, as a
result of an adjustment made pursuant to this Section 2.3, the Holder of this
Warrant thereafter surrendered for exercise shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and any
other class of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a written notice to
all holders of Warrants promptly after such adjustment) shall determine the
allocation of the adjusted Warrant Price between or among shares of such classes
of capital stock or shares of Common Stock and such other class of capital
stock.
The adjustment to the number of Warrant Shares purchasable upon the
exercise of this Warrant described in this Section 2.3 shall be made each time
any event listed in paragraphs (i) through (v) of this Section 2.3 occurs.
Simultaneously with all adjustments to the number and/or kind of
securities, property and cash under this Section 2.3 to be issued in connection
with the exercise of this Warrant, the Warrant Price will also be appropriately
and proportionately adjusted.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.3, the Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in Sections 2.1 and 2.2 above.
2.4 Notice of Adjustments. Upon the occurrence of each adjustment or
readjustment of the Warrant Price pursuant to this Section 2, the Company at its
expense will promptly compute such adjustment or readjustment in accordance with
the terms of this Warrant and prepare a certificate setting forth such
adjustment or readjustment, including a statement of the adjusted Warrant Price
or adjusted number of Warrant Shares, if any, issuable upon exercise of each
Warrant, describing the transaction giving rise to such adjustments and showing
in detail the facts upon which such adjustment or readjustment is based. The
Company will forthwith mail, by first class mail, postage prepaid, a copy of
each such certificate to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, and to its Transfer Agent.
2.5 Other Notices. If at any time:
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property to the holders of shares of the Common
Stock (including, without limitation, evidences of indebtedness and equity and
debt securities) (other than dividends payable in the form of the Company's
Common Stock to holders of the Company's Series D, E, F
and G Convertible Preferred Stock or other series of preferred stock); or (iii)
issue securities convertible into, or rights or warrants to purchase, securities
of the Company;
(b) there shall be any capital reorganization or reclassification or
consolidation or merger of the Company with, or sale, transfer or lease of all
or substantially all of its assets to, another entity; or
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (a) at least 15 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no stockholder vote
is required and at least 15 days' prior written notice of the record date for
stockholders entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such subscription rights, the date on which the
holders of shares of Common Stock shall be entitled to exercise their rights
with respect thereto, and such notice in accordance with the foregoing clause
(b) shall also specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Failure to give the notice referred to herein shall not affect the
validity or legality of the action which should have been the subject of the
notice.
2.6 No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($0.01) in
such price; provided, however, that any adjustments which by reason of this
Section 2.6 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment required to be made hereunder. All
calculations under this Section 2 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
3. No Voting Rights. This Warrant shall not be deemed to confer upon
the Holder any right to vote or to consent to or receive notice as a stockholder
of the Company, as such, in respect of any matters whatsoever, or any other
rights or liabilities as a stockholder, prior to the exercise hereof.
4. Warrants Transferable. This Warrant and all rights hereunder are
transferable, in whole or in part, at the principal offices of the Company by
the Holder hereof, upon surrender of this Warrant properly endorsed; provided,
that this Warrant and
all rights hereunder may be transferred only (i) in a transaction exempt from
registration under the 1933 Act, provided that the Company receives an opinion
of counsel that such transfer may be effected without registration under the
1933 Act; or (ii) pursuant to the registration of this Warrant or the Warrant
Shares under the 1933 Act or pursuant to an available exemption from such
registration. It shall be a condition to transfer of this Warrant that the
transferee agrees to be bound by the restrictions on transfer contained in this
Section 4.
5. Warrants Exchangeable; Assignment; Loss, Theft, Destruction, Etc.
This Warrant is exchangeable, without expense, upon surrender hereof by the
Holder hereof at the principal offices of the Company, or at the office of its
Transfer Agent, if any, for new Warrants of like tenor representing in the
aggregate the right to subscribe for and purchase the Warrant Shares which may
be subscribed for and purchased hereunder, each such new Warrant to represent
the right to subscribe for and purchase such Warrant Shares as shall be
designated by such Holder hereof at the time of such surrender. Upon surrender
of this Warrant to the Company at its principal office, or at the office of its
Transfer Agent, if any, with an instrument of assignment duly executed and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Warrant in the name of the assignee named in such instrument
of assignment and this Warrant shall promptly be cancelled. This Warrant may be
divided or combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company, or at the office of
its Transfer Agent, if any, together with a written notice specifying the names
and denominations in which new Warrants are to be issued and signed by the
Holder hereof. The term "Warrant" as used herein includes any Warrants into
which this Warrant may be divided or exchanged. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of a bond or indemnity satisfactory to the Company, or, in the case of
any such mutilation, upon surrender or cancellation of this Warrant, the Company
will issue to the Holder hereof a new Warrant of like tenor, in lieu of this
Warrant, representing the right to subscribe for and purchase the Warrant Shares
which may be subscribed for and purchased hereunder. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation of
the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
6. Legend. Any certificate evidencing the securities issued upon
exercise of this Warrant shall bear a legend in substantially the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST
AND WITHOUT CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES,
LIMITATIONS AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES
OF CAPITAL STOCK AUTHORIZED TO BE ISSUED, SO FAR AS THEY HAVE BEEN
DETERMINED, AND THE AUTHORITY OF THE BOARD TO DETERMINE THE RELATIVE
RIGHTS AND PREFERENCES OF THE SUBSEQUENT CLASSES OR SERIES.
THE SHARES OF COMMON STOCK OF XXXXXXXX, INC. INTO WHICH THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE CONVERTIBLE ENTITLE THE
HOLDER THEREOF TO CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT
BETWEEN XXXXXXXX, INC. AND XXXXX FARGO BANK, N.A., DATED AS OF JUNE 16,
1996 AND AMENDED ON JULY 25, 1998 AND NOVEMBER 10, 2000 (THE "RIGHTS
AGREEMENT"), A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF
XXXXXXXX, INC. UNDER CERTAIN CIRCUMSTANCES, SUCH RIGHTS ISSUED TO OR
HELD BY AN ACQUIRING PERSON, OR AFFILIATE OR ASSOCIATE THEREOF (AS
DEFINED IN THE RIGHTS AGREEMENT), AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS, MAY BECOME NULL AND VOID.
7. Modifications and Waivers. The terms of the Warrants may be amended,
modified or waived only by the written agreement of the Company and the Holder.
8. Miscellaneous. The Company shall pay all expenses and other charges
payable in connection with the preparation, issuance and delivery of this
Warrant and all substitute Warrants. The Holder shall pay all taxes (other than
any issuance taxes, including, without limitation, documentary stamp taxes,
transfer taxes and other governmental charges, which shall be paid by the
Company) in connection with such issuance and delivery of this Warrant and the
Warrant Shares.
The Company shall maintain, at the office or agency of the Company
maintained by the Company, books for the registration and transfer of the
Warrant.
9. Reservation of Warrant Shares. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock or its authorized and issued Common Stock
held in its treasury, solely for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of this Warrant, the maximum
number of shares of Common Stock which may then be deliverable upon the exercise
of this Warrant.
The Company or, if appointed, the Transfer Agent for the Common Stock
(the "Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Warrant on file with the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by this
Warrant. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the Holder pursuant
to Section 2.5 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, assuming the availability of
sufficient authorized shares of Common Stock of the Company at the time of such
issuance, be fully paid, nonassessable, free of preemptive rights and free from
all taxes, liens, charges and security interests with respect to the issue
thereof.
10. Registration. The Holder shall be entitled to the registration
rights with respect to the Warrant Shares set forth in Section 12.11 of the
Purchase Agreement.
11. Descriptive Headings and Governing Law. The descriptive headings of
the several paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant. This Warrant shall be construed and
enforced in accordance with the laws of the State of Minnesota, and the rights
of the parties shall be governed by, the law of such State.
IN WITNESS WHEREOF, this Warrant has been executed as of the 25th day
of October, 2001.
XXXXXXXX, INC.
By:
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Name: Xxxxxx X. Xxxxxxxxx
Title: President and
Chief Executive Officer
PURCHASE FORM
Dated: __________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes
payment of $_____________ in payment of the exercise price thereof.
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CASHLESS EXERCISE
Dated: __________, ____
The undersigned irrevocably elects to exercise the within
Warrant for Warrant Shares and hereby makes payment pursuant to the Cashless
Exercise provision of the within Warrant, and directs that the payment of the
Warrant Price be made by cancellation as of the date of exercise of a portion of
the within Warrant in accordance with the terms and provisions of Section 1(b)
of the within Warrant.
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