EXHIBIT 4.9
THE SECURITIES REPRESENTED BY THIS WARRANT MAY NOT BE OFFERED FOR
SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT MADE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
WARRANT
SI DIAMOND TECHNOLOGY, INC.
The Transferability of this Warrant is Restricted
as Provided in Article 3
FOR GOOD AND VALUABLE consideration, the receipt of which is hereby
acknowledged by SI DIAMOND TECHNOLOGY, INC., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxx 00000, a Texas corporation (the "Company"), Xxxxxxx Xxxxxx
("Holder"), is hereby granted the right to purchase, at the initial exercise
price of $0.25 per share, 100,000 shares of the Company's common stock, $.001
par value (the "Common Shares").
Subject to the further terms hereof, this Warrant shall be exercisable
in whole or in part at any time and from time to time prior to 11:59 p.m.
(Austin time) on October 29, 1999. This Warrant shall be exercisable only in
the event that the exercise is for, at a minimum, the lesser of (i) 10,000
Common Shares or (ii) the remaining number of Common Shares which the
registered holder of this Warrant has the right to purchase thereunder. Upon
the expiration of the applicable period for exercise of this Warrant, this
Warrant shall no longer entitle the holder thereof to acquire any shares of
Common Shares or any other security of the Company. For the purposes of this
Warrant, "Affiliates" or "Affiliate" of Holder shall mean any person or
entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with Holder.
"Control" in, of or by an Affiliate requires ownership of more than fifty
percent (50%) of (i) voting stock of a company which issued voting stock, or
(ii) ownership interest in any enterprise; an entity or person is an
Affiliate only as long as control exists.
This Warrant initially is exercisable in whole or part as provided above
at a price of $0.25 per Share payable by wire transfer of collected funds,
subject to adjustment as provided in Article 5 hereof. Upon surrender of
this Warrant, with the annexed Subscription Form duly executed, together with
payment of the Purchase Price (as hereinafter defined) for the Common Shares
purchased, at the offices of the Company, the registered holder of this
Warrant shall be entitled to receive a certificate or certificates for all
the Common Shares.
1. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable at the
option of the Holder hereof, in whole Common Shares only (but not as to
fractional Common Shares underlying this Warrant), during any period in
which this Warrant may be exercised as set forth above.
If this Warrant is exercised in part only, the Company, upon surrender of
this Warrant for cancellation, shall execute and deliver a new Warrant of
like tenor evidencing the right of the holder to purchase the balance of
the Common Shares purchasable hereunder.
2. ISSUANCE OF CERTIFICATES
Upon the exercise of this Warrant, the issuance of certificates for Common
Shares underlying this Warrant shall be made forthwith (and in any event
within five business days thereafter) without charge to the Holder hereof
including, without limitation, any tax which may be payable in respect of
the issuance thereof, and such certificates shall (subject to the
provisions of Article 3 hereof) be issued in the name of, or in such names
as may be directed by, the Holder hereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Company shall
not be required to issue or deliver such certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid. The certificates
representing the Common Shares underlying this Warrant shall be executed on
behalf of the Company by the manual or facsimile signature of one of the
present or any future Chairman or President of the Company and any present
or future Vice President or Secretary of the Company. Upon transfer of
this Warrant in whole or in part to an Affiliate of Holder, such transferee
shall be entitled to all the rights of a Holder hereof.
3. RESTRICTION ON TRANSFER OF WARRANT AND COMMON SHARES
The Holder of this Warrant, by its acceptance hereof, covenants and agrees
that this Warrant and the Common Shares are being acquired as an investment
and not with a view to the distribution thereof, and that the Warrant may
not be exercised, and neither the Warrant nor the Shares may be sold,
transferred, assigned, hypothecated or otherwise disposed of (other than to
an Affiliate of Holder), in whole or in part unless in the opinion of
counsel reasonably concurred in by the Company's counsel such transfer is
in compliance with all applicable securities laws, after which this Warrant
and the Common Shares shall again be subject to the restrictions contained
in this Article 3.
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4. PRICE
4.1. INITIAL AND ADJUSTED PURCHASE PRICE. The initial purchase price shall
be $0.25 per Share. The adjusted purchase price shall be the price
which shall result from time to time from any and all adjustments of
the initial purchase price in accordance with the provisions of
Article 5 hereof.
4.2. PURCHASE PRICE. The term "Purchase Price" herein shall mean the
initial purchase price or the adjusted purchase price, depending upon
the context.
5. ADJUSTMENTS OF PURCHASE PRICE AND NUMBER OF COMMON SHARES
5.1. SUBDIVISION AND COMBINATION
In case the Company shall at any time subdivide or combine the
outstanding Common Shares, the Purchase Price shall forthwith be
proportionately decreased in the case of subdivision or increased in
the case of combination.
5.2. RECLASSIFICATION, CONSOLIDATION, MERGER, ETC.
In case of any reclassification or change of the outstanding Common
Shares (other than a change in par value to no par value, or from no
par value to par value, or as a result of a subdivision or
combination), or in the case of any consolidation of the Company with,
or merger of the Company into, another corporation (other than a
consolidation or merger in which the Company is the surviving
corporation and which does not result in any reclassification or
change of the outstanding Common Shares, except a change as a result
of a subdivision or combination of such shares or a change in par
value, as aforesaid), or in the case of a sale or conveyance to
another corporation of the property of the Company as an entirety, the
Holder of this Warrant shall thereafter have the right to purchase
upon the exercise of this Warrant the kind and number of shares of
stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance as
if the Holder were the owner of the Common Shares underlying this
Warrant immediately prior to any such events at the Purchase Price in
effect immediately prior to the record date for such reclassification,
change, consolidation, merger, sale or conveyance as if such Holder
had exercised this Warrant.
6. EXCHANGE AND REPLACEMENT OF WARRANT
This Warrant is exchangeable without expense, upon the surrender hereof by
the registered Holder at the principal executive office of the Company for
new Warrants of like tenor and date representing in the aggregate the right
to purchase the same number of Common Shares
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as are purchasable hereunder in such denominations as shall be designated
by the Holder hereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will make and deliver a new Warrant of
like tenor, in lieu of this Warrant.
7. ELIMINATION OF FRACTIONAL INTERESTS
The Company shall not be required to issue certificates representing
fractions of Common Shares on the exercise of this Warrant, nor shall it
be required to issue scrip or pay cash in lieu of fractional interests,
it being the intent of the parties that all fractional interests shall be
eliminated.
8. RESERVATION AND LISTING OF SECURITIES
The Company shall at all times reserve and keep available out of its
authorized Common Shares, solely for the purpose of issuance upon the
exercise of this Warrant, such number of Common Shares as shall be issuable
upon the exercise hereof and thereof. The Company covenants and agrees
that, upon exercise of this Warrant and payment of the Purchase Price
therefor, all Shares issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable.
9. NOTICES
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly given when delivered,
or mailed by registered or certified mail, return receipt requested:
9.1. If to the registered Holder of this Warrant, to the address of such
Holder as shown on the books of the Company; or
9.2. If to the Company, to the address set forth on the first page of this
Warrant or to such other address as the Company may designate by
notice to the Holders.
10. SUCCESSORS
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributors,
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successors and assigns. Assignability of registration rights is limited
under the terms of this Warrant.
11. HEADINGS
The Article and Section headings in this Warrant are inserted for purposes
of convenience and shall have no substantive effect.
12. LAW GOVERNING
This Warrant shall be construed and enforced in accordance with, and
governed by, the laws of the State of Texas.
WITNESS the seal of the Company and the signature of its duly authorized
Officer.
SI DIAMOND TECHNOLOGY, INC.
By:
------------------------
Xxxxxxx X. Xxxxx
Vice President and
Chief Financial Officer
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EXHIBIT A
SUBSCRIPTION FORM
TO: SI DIAMOND TECHNOLOGY, INC.
The undersigned hereby irrevocably exercises the right to purchase
__________________ of the shares of Common Stock of SI Diamond Technology,
Inc., a Texas corporation, evidenced by the attached Warrant, and herewith
makes payment of the Exercise Price with respect to such shares in full, all
in accordance with the conditions and provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise dispose
of any of the such Common Stock, except in accordance with provisions of
Section 3 of the Warrant, and consents that the following legend may be
affixed to the certificates for the Common Stock hereby subscribed for, if
such legend is applicable:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities law, and may not be sold,
transferred, pledged, hypothecated or otherwise disposed of until
either (i) a registration statement under the Securities Act and
applicable state securities laws shall have become effective with
regard thereto, or (ii) an exemption from registration under the
Securities Act or applicable state securities laws is available in
connection with such offer, sale or transfer."
The undersigned requests that certificates for such shares be issued,
and a warrant representing any unexercised portion thereof be issued,
pursuant to the Warrant in the name of the Registered Holder and delivered
to the undersigned at the address set forth below:
Dated:
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Signature of Registered Holder
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Name of Registered Holder (Print)
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Address
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