EXHIBIT 4.13
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
Date: September 25, 2001 No. 2001-C-05
UNIVIEW TECHNOLOGIES CORPORATION
STOCK PURCHASE WARRANT
This Warrant is issued for good and valuable consideration, receipt of
which is hereby acknowledged, to Massive Capital, LLC (the "Holder") by
uniView Technologies Corporation, a Texas corporation (the "Company").
1. Purchase of Shares. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing), to purchase from the
Company Fifty Thousand (50,000) shares of par value $.80 Common Stock of the
Company (the "Shares"), as adjusted pursuant to the provisions of this
Warrant.
2. Exercise Price. The exercise price for the Shares shall be
Thirty-two Dollars and No/100 ($32.00) per share. Such price shall be
subject to adjustment pursuant to Section 8 hereof (such price, as adjusted
from time to time, is herein referred to as the "Exercise Price").
3. Exercise Period. This Warrant is exercisable at any time and from
time to time and, except as provided below, shall remain so exercisable
through September 5, 2004. This Warrant shall immediately terminate upon
(a) the sale of all or substantially all the assets of the Company or
(b) the merger of the Company into or consolidation with any other entity in
which at least 50% of the voting power of the Company is transferred. In
the event of a transaction of the kind described above, the Company shall
notify the Holder at least twenty (20) days prior to the consummation of
such event or transaction.
4. Restricted Stock; Registration. The shares of Common Stock of the
Company purchased upon exercise of this Warrant ("Restricted Stock") or
purchasable upon exercise of this Warrant ("Underlying Stock") shall not be
transferable except upon the conditions stated below, which are intended to
insure compliance with federal and state securities laws. The certificates
representing these shares of stock, unless the same are registered prior to
exercise of this Warrant, shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state. The securities have been acquired
for investment and may not be sold, offered for sale or
transferred in the absence of an effective registration under the
Securities Act of 1933, as amended, and any applicable state
securities laws or an opinion of counsel satisfactory in form and
substance to counsel for the Company that the transaction shall
not result in a violation of state or federal securities laws."
5. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise may
be effected by:
(i) the surrender of the Warrant, together with a duly
executed copy of the form of exercise attached hereto, to the Secretary of
the Company at its principal offices; and either
(ii) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased; or
(iii) in lieu of purchasing the entire number of shares
subject to purchase pursuant to the Warrant, the Holder may relinquish all
or any part of the unexercised portion of the Warrant (such portion of the
Warrant relinquished being hereinafter referred to as the "Relinquished
Warrant") for a number of whole shares of Common Stock equal to the product
of (i) the number of shares of Common Stock subject to the Relinquished
Warrant and (ii) a fraction, the numerator of which is the excess of (A) the
current Fair Market Value per share of Common Stock covered by the
Relinquished Warrant over (B) the Exercise Price of such Relinquished
Warrant, and the denominator of which is the then current Fair Market Value
per share of such Common Stock.
6. Certificates for Shares. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares
so purchased shall be issued as soon as practicable thereafter, and in any
event within 30 days of the delivery of the subscription notice.
7. Reservation of Shares. The Company covenants that it will at all
times, keep available such number of authorized shares of its Common Stock,
free from all preemptive rights with respect thereto, which will be
sufficient to permit the exercise of this Warrant for the full number of
Shares specified herein, upon exercise of this Warrant. The Company further
covenants that such Shares, when issued pursuant to the exercise of this
Warrant, will be duly and validly issued, fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issuance thereof.
8. Adjustment of Exercise Price and Number of Shares. The number of
and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions and Combinations. If the Company shall at any
time prior to the expiration of this Warrant subdivide its Common Stock by
split-up or otherwise, or combine its Common Stock, the number of Shares
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision, or proportionately decreased in the
case of a combination. Appropriate adjustments shall also be made to the
purchase price payable per share, but the aggregate purchase price payable
for the total number of Shares purchasable under this Warrant (as adjusted)
shall remain the same. Any adjustment under this Section 7(a) shall become
effective at the close of business on the date the subdivision or
combination becomes effective.
(b) Notice of Adjustment. When any adjustment is required to be
made in the number or kind of shares purchasable upon exercise of the
Warrant, or in the Warrant Price, the Company shall promptly notify the
Holder of such event and of the number of shares of Common Stock or other
securities or property thereafter purchasable upon exercise of the Warrant.
9. No Fractional Shares. No fractional shares shall be issued upon
the exercise of this Warrant, and the number of shares of stock issued upon
exercise of this Warrant shall be rounded to the nearest whole share.
10. No Stockholder Rights. Prior to the exercise of this Warrant, the
Holder shall not be entitled to any rights of a shareholder with respect to
the Shares, including (without limitation) the right to vote such Shares,
receive dividends or other distributions thereon, exercise preemptive rights
or be notified of shareholder meetings, and such Holder shall not be
entitled to any notice or other communication concerning the business or
affairs of the Company.
11. Exchange of Warrant. Subject to any restriction upon transfer set
forth in this Warrant, each Warrant may be exchanged for another Warrant or
Warrants of like tenor and representing in the aggregate a like number of
Warrants. Any Holder desiring to exchange a Warrant or Warrants shall make
such request in writing delivered to the Company, and shall surrender,
properly endorsed, the Warrant or Warrants to be so exchanged.
12. Mutilated or Missing Warrants. In case any Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated
Warrant, or in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an equivalent right
or interest, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction of such Warrant and indemnity
or bond, if requested, also reasonably satisfactory to the Company. An
applicant for such substitute Warrant shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company
may prescribe.
13. Payment of Taxes. The Company will pay all taxes (other than any
income taxes or other similar taxes), if any, attributable to the initial
issuance of the Warrant and the issuance of the Shares upon the exercise of
the Warrant, provided, however, that the Company shall not be required to
pay any tax or taxes which may be payable in respect of the issuance or
delivery of any Warrant, or the transfer thereof, and no such issuance,
delivery or transfer shall be made unless and until the person requesting
such issuance or transfer has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that no such
tax is payable or such tax has been paid.
14. Warrant Register. The Warrants shall be numbered and shall be
registered on the books of the Company (the "Warrant Register") as they are
issued. The Company shall be entitled to treat the registered holder of any
Warrant on the Warrant Register as the owner in fact thereof for all
purposes and shall not be bound to recognize any equitable or other claim to
or interest in such Warrant on the part of any other person, and shall not
be liable for any registration or transfer of Warrants which are registered
or to be registered in the name of a fiduciary or the nominee of a fiduciary
unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer, or
with knowledge of such facts that its participation therein amounts to bad
faith.
15. Transfer of Warrants. The Warrants shall be transferable on the
Warrant Register only upon delivery thereof duly endorsed by the Holder or
by his duly authorized attorney or representative, or accompanied by proper
evidence of succession, assignment or authority to transfer. In all cases of
transfer by an attorney, the original power of attorney, duly approved, or
an official copy thereof, duly certified shall be deposited with the
Company. In case of transfer by executors, administrators, guardians or
other legal representatives, duly authenticated evidence of their authority
shall be produced, and may be required to be deposited with the Company in
its discretion. Upon any registration of transfer, the Company shall
deliver a new Warrant or Warrants to the Person entitled thereto.
Notwithstanding the foregoing, the Company shall have no obligation to cause
Warrants to be transferred on its books to any Person, unless the Holder of
such Warrants shall furnish to the Company evidence of compliance with the
Securities Act of 1933, as amended, and applicable state blue sky laws.
16. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the
holders hereof and their respective successors and assigns.
17. Amendments and Waivers. This Warrant may be amended, modified,
superseded or canceled, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
signed by the parties to be bound thereby. Any waiver or amendment effected
in accordance with this Section shall be binding upon each holder of any
Shares purchased under this Warrant at the time outstanding (including
securities into which such Shares have been converted), each future holder
of all such Shares, and the Company.
18. Governing Law. This Warrant and the validity and enforceability
hereof shall be governed by and construed and interpreted in accordance with
the laws of the State of Texas without giving effect to conflict of laws
rules or choice of laws rules thereof.
IN WITNESS WHEREOF, the undersigned hereby executes this Stock Purchase
Warrant as of the date first written above.
UNIVIEW TECHNOLOGIES CORPORATION
By: ______________________
Xxxxxxx X. Xxxxxx, CEO
NOTICE OF EXERCISE
To: uniView Technologies Corporation (the "Company")
(1) The undersigned ("Holder") hereby elects to exercise its rights to
purchase __________________________ shares of the Common Stock of the
Company (the "Securities") pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price in full, together with
all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing the
Securities in the name of the undersigned Holder:
_______________________________
(Name)
_______________________________
(Address)
(3) With respect to the Securities being purchased hereunder, the
Holder makes, as of the date hereof, all of the representations and
warranties set forth below:
(a) Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
Securities. Holder is purchasing these Securities for its own account for
investment purposes only and not with a view to, or for the resale in
connection with, any "distribution" thereof for purposes of the Securities
Act of 1933, as amended ("Securities Act").
(b) Holder understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent as expressed herein. In this connection,
Holder understands that, in the view of the Securities and Exchange
Commission ("SEC"), the statutory basis for such exemption may be
unavailable if its representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase
or decrease in the market price of the Securities, or for a period of one
year or any other fixed period in the future.
(c) Holder further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available. In addition,
Holder understands that the instruments or certificates evidencing the
Securities will be imprinted with a legend which prohibits the transfer of
the Securities unless they are registered or such registration is not
required in the opinion of counsel for the Company.
(d) Holder is aware of the provisions of Rule 144, promulgated
under the Securities Act, which in substance, permits limited public resale
of "restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions, including, among other
things: the availability of certain public information about the Company;
the resale occurring not less than one year after the party has purchased
and paid for the securities to be sold; the sale being made through a broker
in an unsolicited "broker's transaction" or in transactions directly with a
market maker (as said term is defined under the Securities Exchange Act of
1934, as amended) and the amount of securities being sold during any three
month period not exceeding the specified limitations stated therein.
(e) Holder further understands that at the time Holder wishes to
sell the Securities there may be no public market upon which to make such a
sale, and that, even if such a public market then exists the Company may not
be satisfying the current public information requirements of Rule 144, and
that, in such event, Holder could be precluded from selling the Securities
under Rule 144 even if the one-year minimum holding period had been
satisfied.
(f) Holder further understands that in the event all of the
requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144
is not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons
and their respective brokers who participate in such transactions do so at
their own risk.
__________________________ ______________________________
(Date) (Signature and Title)
______________________________
(Name printed)
