THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT COVERING THIS SECURITY OR AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
STOCK PURCHASE WARRANT
Date of Issuance: September 19, 2002 Warrant No. 2
For value received, the Company hereby grants to Registered Holder the
right to purchase from the Company an aggregate of 800,000 shares of Common
Stock ("Warrant Stock"), at a price per share equal to the greater of: (1)
$2.25; or (2) ninety percent (90%) of the average Market Price of the Common
Stock for the sixty (60) consecutive trading days immediately prior to the
Exercise Date (as may be adjusted from time to time hereunder) ("Exercise
Price"). The amount and kind of securities purchasable pursuant to the rights
granted hereunder are subject to adjustment pursuant to the provisions contained
in this Warrant. Unless otherwise defined herein, all capitalized terms shall
have the meanings set forth in that certain Purchase Agreement, dated August 28,
2001, by and between Company and the Venture Equities Management, Inc., a
Delaware corporation ("VEMI" -- VEMI or its assigns is hereinafter referred to
as the "Registered Holder").
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1.1 Exercise Period. This Warrant shall expire on August 28, 2003.
The Registered Holder may exercise, in its sole and absolute discretion, in
whole or in part (but not as to a fractional share of Warrant Stock), the
purchase rights represented by this Warrant at any time and from time to time
prior to the expiration hereof.
1.2 Exercise Procedure.
(a) This Warrant may be exercised by delivering all of the following
items to the Company at its principal office (the date on which the
Company shall receive all of such items shall be referred to as the
"Exercise Date"):
(i) a completed Exercise Agreement, as described in Section
1.3, executed by the Person exercising all or part of the purchase
rights represented by this Warrant ("Purchaser");
(ii) if this Warrant is not registered in the name of the
Purchaser, an Assignment or Assignments, in the form attached hereto
as Exhibit I, evidencing the assignment of this Warrant to the
Purchaser (in which case the Registered Holder will be deemed to
have complied with Section 4); and
(iii) a wire transfer or cashier's check payable to the
Company in an amount equal to the product of the Exercise Price
multiplied by the number of shares of Warrant Stock being purchased
upon such exercise.
(b) The Company shall use its best efforts to cause the transfer
agent of its securities to issue and deliver to the Purchaser certificates
for shares of Warrant Stock issuable upon exercise of this Warrant within
ten business days after the Exercise Date, but in no event shall such
certificates be issued and delivered later than 15 business days after the
Exercise Date.
(c) In the event that this Warrant shall be exercised for less than
all of the Warrant Stock, the Company shall, within ten business days
after the Exercise Date, execute and deliver to the Purchaser a
replacement Warrant of like tenor for the balance of the Warrant Stock
that may be purchased hereunder.
(d) The Warrant Stock issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Purchaser at 5:00 p.m. (Chicago
time) on the Exercise Date, and the Purchaser shall be deemed for all
purposes to have become the record holder of such Warrant Stock at such
time on the Exercise Date.
(e) The issuance of certificates for shares of Warrant Stock upon
exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax with respect thereto or other
cost incurred by the Company in connection with such exercise and the
related issuance of shares of Warrant Stock; provided, however, that the
Company shall not be required to pay any income tax to which the
Registered Holder or the Purchaser may be subject in connection with the
issuance of this Warrant or any Warrant Stock. Each share of Warrant Stock
issuable upon exercise of this Warrant shall be, upon payment of the
Exercise Price, duly authorized, validly issued, fully paid and
nonassessable and free from all liens, restrictions, encumbrances, and
charges.
(f) Each party shall assist and cooperate with each other party with
respect to any required governmental filings or governmental approvals
prior to, or in connection with, any exercise of this Warrant.
1.3 Exercise Agreement. To exercise this Warrant, each Purchaser
shall execute and deliver the Exercise Agreement, the form of which is attached
hereto as Exhibit II, except that if the shares of Warrant Stock are not to be
issued in the name of the Registered Holder, the Exercise Agreement shall also
state the name of the Person to whom the certificates for the shares of Warrant
Stock are to be issued, and if the number of shares of Warrant Stock to be
issued does not include all the shares of Warrant Stock purchasable hereunder,
it shall also state the name of the Person to whom a new Warrant for the
unexercised portion of the rights hereunder is to be delivered. Such Exercise
Agreement shall be dated the date of execution thereof.
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1.4 Fractional Shares. The Company shall not be required to issue
any fractional shares upon exercise of the rights represented by this Warrant.
In lieu of any fractional share to which the Purchaser would otherwise have been
entitled in the absence of this section, the Company shall, within ten business
days after the Exercise Date, deliver to the Purchaser by wire transfer or a
cashier's check payable to the Registered Holder an amount equal to the
difference between the Market Price of such fractional share and the Exercise
Price of such fractional share.
1.5 Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock solely for the purpose of issuance upon the exercise of this Warrant, such
number of shares of Common Stock issuable upon the exercise of this Warrant. If,
at any time, the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the full exercise of this Warrant, the Company shall
immediately take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose. All Warrant Stock,
when issued, shall be duly authorized and validly issued, fully paid and
nonassessable, and free from all taxes, liens, encumbrances, and restrictions.
The Company shall take all actions that may be necessary to assure that such
shares of Warrant Stock may be so issued without violation of any applicable law
or governmental regulation, or any requirement of any domestic securities
exchange.
1.6 Cashless Exercise. In lieu of exercising this Warrant or any
portion hereof and paying the Exercise Price as otherwise provided herein, the
Purchaser shall have the right to convert this Warrant or any portion hereof
into a number of shares to be computed using the following formula:
(P)(Y)(A-B)
X = -------------
A
X = the number of shares of Common Stock to be issued to the Purchaser for
the portion of this Warrant being converted.
P = the portion of this Warrant being converted.
Y = the total number of shares of Common Stock issuable upon exercise of
this Warrant in full.
A = the Market Price of one share of Common Stock determined as of the
date of exercise of this Warrant.
B = the Exercise Price.
Upon any such conversion, the portion of this Warrant represented by the
variable "P" above shall be cancelled as provided herein.
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Section 2. Adjustment of Number of Shares.
2.1 Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization, or
otherwise) one or more classes of its outstanding shares of Common Stock into a
greater number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Warrant
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares of
Warrant Stock obtainable upon exercise of this Warrant shall be proportionately
decreased.
2.2 Reorganization, Reclassification, Consolidation, Merger, or
Sale. Prior to the consummation of any Organic Change,, the Company shall make
appropriate provision to ensure that each Purchaser shall thereafter have the
right to acquire and receive in lieu of, or addition to (as the case may be),
the shares of Warrant Stock immediately theretofore acquirable and receivable
upon the exercise of such holder's Warrant, such shares of stock, securities,
cash, or assets as may be issued or payable with respect to, or in exchange for,
the number of shares of Warrant Stock immediately theretofore acquirable and
receivable upon exercise of such holder's Warrant had such Organic Change not
taken place. The Company shall not effect any such Organic Change, unless prior
to the consummation thereof, the successor entity (if other than the Company)
resulting from such Organic Change or the entity purchasing such assets assumes
by written instrument the obligation to deliver to each such Registered Holder
such shares of stock, securities, cash, or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.
2.3 Notices.
(a) Immediately upon any adjustment set forth in Section 2, the
Company shall give written notice thereof to the Registered Holder,
setting forth in reasonable detail such adjustment and certifying the
calculation thereof.
(b) The Company shall give written notice to the Registered Holder
at least five business days prior to the date on which any Organic Change
shall be consummated, unless such notice would otherwise be prohibited by
applicable law or would adversely affect an Organic Change.
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Section 3. No Stockholder Rights. Prior to the exercise hereof, this
Warrant shall not, with respect to the shares of Warrant Stock, entitle the
Registered Holder or any other Person (as a holder of this Warrant) to any
rights as a stockholder of the Company, including the right to vote (or give
written consent) or to receive dividends or other distributions.
Section 4. Transfer and Exchange of Warrant.
4.1 Transfer. Subject to the transfer restrictions set forth in the
legend endorsed hereon, this Warrant and all rights hereunder are transferable,
in whole or in part (without charge by the Company to the Registered Holder),
only upon surrender of this Warrant with a properly executed Assignment (in the
form attached hereto as Exhibit I) at the principal office of the Company.
4.2 Exchange. This Warrant is exchangeable, upon the surrender
hereof by the Registered Holder at the principal office of the Company, for one
or more replacement Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each such replacement Warrant shall represent
such portion of such rights as is designated by the Registered Holder at the
time of such surrender. The date the Company initially issues this Warrant shall
be deemed to be the "Date of Issuance" for each such replacement Warrant
irrespective of the number of times one or more replacement Warrants
representing the unexpired and unexercised rights formerly represented by this
Warrant shall be issued.
4.3 Conditions. If, at the time of any transfer or exchange of this
Warrant, the Warrant Stock or this Warrant shall not be registered under the
Securities Act, the Company may require, as a condition to allowing such
transfer or exchange, that the Registered Holder furnish to the Company a
written statement that any replacement Warrant is being acquired for investment
purposes only, and not with a view to the distribution thereof.
Section 5. Replacement. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership and the loss, theft, destruction, or mutilation
of this Warrant, and in the case of any such loss, theft, or destruction, upon
receipt of indemnity reasonably satisfactory to the Company, or, in the case of
any such mutilation, upon surrender of this Warrant, the Company shall (at the
expense of the Company) execute and deliver in lieu of this Warrant, a new
Warrant of like tenor representing the same rights represented by such lost,
stolen, destroyed, or mutilated Warrant and dated the Date of Issuance.
Section 6. Definitions. Unless otherwise set forth in this Warrant, all
capitalized terms have the meanings set forth below:
"Common Stock" means the Company's common stock, $0.01 par value per
share.
"Market Price" means the average of the closing prices of such security's
sales on all securities exchanges on which such security may at the time be
listed, or, if there has been no sales on any such exchange on any day, the
average of the highest bid and lowest asked prices on all such exchanges at the
end of such day, or, if on any day such security is not so listed, the average
of the representative bid and asked prices quoted by the Nasdaq Stock Market as
of 4:00
5
P.M., New York time, or, if on any day such security is not quoted by the Nasdaq
Stock Market, the average of the highest bid and lowest asked prices on such day
in the domestic over-the-counter market as reported by Pink Sheets LLC, or any
similar successor organization, in each such case averaged over a period of 21
days consisting of the day as of which "Market Price" is being determined and
the 20 consecutive business days prior to such day. If at any time such security
is not listed on any securities exchange or quoted by the Nasdaq Stock Market or
the over-the-counter market, the "Market Price" will be the fair value thereof
determined in good faith by the Board of Directors.
"Organic Change" means any recapitalization, reorganization,
reclassification, consolidation, merger, share acquisition or exchange, or sale
of all or substantially all of the Company's assets to another Person, or other
transaction that is effected in such a way that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities, cash, or assets with respect to, or in exchange for, Common Stock.
"Securities Act" means the Securities Act of 1933, as amended.
Section 7. Miscellaneous.
7.1 Limitation of Liability. No provision hereof, in the absence of
affirmative action by the Registered Holder or the Purchaser to purchase Warrant
Stock, and no enumeration herein of the rights or privileges of the Registered
Holder or the Purchaser, shall give rise to any liability of such Registered
Holder or Purchaser for the purchase price of any Warrant Stock or as a
stockholder of the Company.
7.2 Remedies. The Registered Holder and the Purchaser shall have all
rights and remedies set forth in this Warrant, the Certificate of Incorporation,
and all of the rights that the Registered Holder and the Purchaser has under any
law. Any Person having any rights under any provision of this Warrant shall be
entitled to enforce such rights specifically, without posting a bond or other
security, to recover damages by reason of any xxxxxx of any provision of this
Warrant and to exercise all other rights granted by law.
7.3 Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Warrant may be amended only by a written instrument signed by
the Company and the Registered Holder. No other course of dealing between the
Company and the Registered Holder or the Purchaser or any delay in exercising
any rights hereunder, under the Company's Certificate of Incorporation, or
otherwise shall operate as a waiver of any rights of the Registered Holder or
the Purchaser. The failure of any party to enforce any of the provisions of this
Warrant shall not be construed as a waiver of such provisions and will not
affect the right of such party thereafter to enforce each and every provision of
this Warrant in accordance with its terms.
7.4 Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant.
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7.5 Payments. All payments required or permitted hereunder shall be
made in immediately available funds in the lawful currency of the United States
of America.
7.6 Governing Law. This Warrant shall be governed by, and construed
and enforced in accordance with, the substantive laws of the State of Illinois,
without regard to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated the Date of Issuance hereof.
UNIVERSAL AUTOMOTIVE INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Its: President
--------------------------------
Attest:
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Secretary
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EXHIBIT I
ASSIGNMENT
FOR VALUE RECEIVED, hereby sells, assigns, and transfers all of the rights
of the undersigned under the attached Warrant (Certificate No. ____) with
respect to the number of shares of the Warrant Stock covered thereby set forth
below, unto:
NAME OF XXXXXXXX ADDRESS NO. OF SHARES
---------------- ------- -------------
DATED: , 200
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Signature:
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Witness:
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EXHIBIT II
EXERCISE AGREEMENT
To: Universal Automotive Industries, Inc. Dated: , 200
--------------- --
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. ___), hereby agrees to subscribe for the purchase of
shares of the Warrant Stock covered by such Warrant and makes payment herewith
in full therefor at the price per share provided by such Warrant.
Signature:
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Address:
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