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EXHIBIT 4.3
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH WARRANTS AND SHARES MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
SI TECHNOLOGIES, INC.
WARRANT
DATED: April ___, 1998
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Holder:
Number of Warrants:
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THIS CERTIFIES THAT Holder is the owner of the number of Warrants set
forth above of SI Technologies, Inc., a Delaware corporation (hereinafter called
the "Company"). Each Warrant entitles the registered holder (the "Holder") to
purchase one share of Common Stock of the Company ("Common Stock"). This Warrant
is issued in connection with an offering (the "Offering") by the Company of up
to 160 Units, each Unit consisting of 4,998 shares of Common Stock priced at
$5.00 per share and Warrants to purchase 1,000 shares of Common Stock at $.01
per Warrant ("Warrant Shares"), at an aggregate offering price of $25,000 per
Unit (the "Offering"), pursuant to the terms of that certain Private Placement
Memorandum, dated March 16, 1998 (the "Memorandum"), and is subject to the terms
of a Subscription Document between the Company and the Holder (the "Subscription
Document"), a form of which is included as part of such Memorandum.
1. Warrant to Purchase Common Stock. Each Warrant evidenced by this Certificate
shall constitute a Warrant to purchase one share of Company Common Stock at an
exercise price of $8.00 per share, subject to adjustment as set forth herein.
2. Certain Definitions. As used in this Warrant, the following terms shall have
the following respective meanings:
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"Act" means the Securities Act of 1933, as amended, or any similar
federal statute enacted hereafter, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time.
"Affiliate" of any person means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person. For purposes of this definition, "control," when used with respect
to any person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company, and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for or in substitution for, such common stock by reason of reason of
any stock splits, stock dividends, distributions, mergers, consolidations or
other like events.
"Company" means SI Technologies Inc., a Delaware corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Holders" means each registered holder of this Warrant and
each holder of Common Stock issued pursuant to this Warrant; provided, however,
that any person who acquires any of the Warrant Shares in a distribution
pursuant to a registration statement filed by the Company under the Act shall
not be deemed a Holder.
"NASDAQ" means the Nasdaq Market.
"Person" means any individual, corporation, partnership, joint venture,
association, joint--stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Purchase Price" means $8.00 per share, subject to adjustment as set
forth in this Warrant.
"Register," "Registered" and "Registration" refer to a registration
effective by preparing and filing a registration statement in compliance with
the Act and the declaration or ordering of effectiveness of such registration
statement by the SEC.
"SEC" means the Securities and Exchange Commission.
"Transfer Agent" means Continental Stock Transfer & Trust Company, or
any duly appointed successor transfer agent for the Common Stock.
"Warrant Shares" means the shares of Common Stock issuable or issued
upon the exercise of this Warrant.
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3. Right to Exercise Warrants. The rights represented by this Warrant are
exercisable for two years from the date hereof; provided that the Company shall
have the right, upon sixty (60) days prior written notice, to redeem for $0.01
per Warrant all or any portion of this Warrant at any time after the first
anniversary of the date of issuance of the Warrant if (i) the Company has filed
a registration statement registering the Warrant Shares for resale (the
"Registration Statement"), (ii) the Registration Statement has been effective
during the ninety (90) day period immediately preceding the date that such
notice is given by the Company (the "Notice Date"), and (iii) the closing bid of
the Company's Common Stock quoted on NASDAQ or a national securities exchange
for each of the twenty (20) consecutive business days ending on a date no
earlier than five (5) days prior to the Notice Date is at least $10.00 per
share.
4. Exercise of Warrants. Subject to Paragraph 3 and the other provisions of this
Warrant, the rights represented by this Warrant may be exercised by (i)
surrender of this Warrant (with the purchase form at the end hereof properly
executed) at the principal executive office of the Company (or such other office
or agency of the Company as the Company may designate by notice in writing to
Holder at the address of Holder appearing on the books of the Company); (ii)
payment to the Company of the Purchase Price for the number of shares specified
in the above-mentioned purchase form together with applicable stock transfer
taxes, if any; and (iii) delivery to the Company of a statement by Holder (in a
form acceptable to the Company and its counsel) that such shares are being
acquired by Holder for investment and not with a view to their distribution or
resale except a sale pursuant to the Registration Statement. This Warrant shall
be deemed to have been exercised immediately prior to the close of business on
the date the Warrant is surrendered and payment is made in accordance with the
foregoing provisions of this Paragraph 4, and the person or persons in whose
name or names the certificates for Warrant Shares shall be issuable upon such
exercise shall become the holder or holders of record of such Warrant Shares at
that time and date. The certificates for the Warrant Shares so purchased shall
be delivered to Holder within a reasonable time, not exceeding three (3)
business days, after the rights represented by this Warrant shall have been so
exercised. If the Warrant is exercised prior to the effective date of a
registration statement to be filed by the Company under the terms of the
Registration Rights Agreement entered into between the Holder and the Company in
connection with the Offering (the "Registration Rights Agreement"), the Warrant
Shares shall bear a legend substantially similar to the following restrictive
legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
If fewer than all of the Warrants represented by this Warrant are
exercised, this Warrant shall be surrendered and, subject to the provisions as
provided herein, a new Warrant of the same tenor and for the number of Warrants
that were not exercised shall be signed by the Company and delivered by the
Company to the person or persons entitled to receive the same.
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No service charge shall be required of a Holder for any registration of
transfer or exchange of this Warrant. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of this Warrant.
5. Assignment. This Warrant may not be transferred, sold, assigned or
hypothecated, except pursuant to a valid and effective registration statement or
if the Company has received from its counsel a written opinion to the effect
that registration of the Warrant is not necessary in connection with such
transfer, sale, assignment or hypothecation. Any such assignment shall be
effected by Holder by (i) executing the form of assignment at the end hereof;
(ii) surrendering the Warrant for cancellation at the office or agency of the
Company referred to in Paragraph 4 hereof, accompanied by the opinion of counsel
referred to above; and (iii) delivery to the Company of a statement by the
transferee Holder (in a form acceptable to the Company and its counsel) that
such Warrant is being acquired by such Holder for investment and not with a view
to its distribution or resale; whereupon the Company shall issue, in the name or
names specified by Holder (including Holder), new Warrants representing in the
aggregate rights to purchase the same number of Warrant Shares as are
purchasable under the Warrant surrendered. The term "Holder" shall be deemed to
include any person to whom this Warrant is transferred in accordance with the
terms herein. Notwithstanding anything contained in this Warrant to the
contrary, Holder is subject to a lock-up agreement with The Boston Group, L.P.
(the "Dealer Manager") restricting holder from disposing of the Warrant Shares
until the first anniversary of the initial closing of the Offering without the
Dealer Manager's consent. Furthermore, any sales of Warrant Shares by Holder
shall be effected through the Dealer Manager or any other broker authorized by
the Dealer Manager as its broker in connection such sale and shall be subject to
its customary brokerage commissions in compliance with applicable regulations of
the National Association of Securities Dealers, Inc. and the SEC. An appropriate
legend shall be marked on the stock certificates representing all Warrant Shares
subject to such "lock-up" agreements.
6. Registration of Warrant Shares. The Company has no obligation to register the
Warrant Shares except as provided in the Registration Rights Agreement.
7. Warrant Shares. The Company covenants and agrees that all Warrant Shares
which may be issued upon exercise hereof will, upon issuance, be duly and
validly issued, fully paid and non-assessable and no personal liability will
attach to the holder thereof and that upon issuance such shares shall be listed
on each national securities exchange, if any, or approved for trading on any
market on which any other shares of outstanding Common Stock of the Company are
then listed or approved for trading. The Company further covenants and agrees
that, during the periods within which this Warrant may be exercised, the Company
will at all times have authorized and reserved a sufficient number of shares of
Common Stock, free of preemptive rights, for issuance upon exercise of this
Warrant and all other Warrants.
8. No Stockholder Rights. This Warrant shall not entitle Holder to any voting
rights or other rights as a stockholder of the Company, including, without
limitation, the right to receive dividends or subscription rights, the right to
vote, to consent, to exercise any preemptive right, to receive any notice of
meetings of stockholders for the election of directors of the Company or
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any other matter or to receive any notice of any proceedings of the Company,
except as may be specifically provided for herein. To the extent such documents
are required to be sent by the Company to the holders of its outstanding Common
Stock, the Company shall provide Holder, within 15 days after it files them with
the SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company may be required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
9. Adjustment of Rights. In the event that the outstanding shares of Common
Stock of the Company are at any time increased or decreased or changed into or
exchanged for a different number or kind of share or other security of the
Company or of another corporation through reorganization, merger, consolidation,
liquidation, recapitalization, stock split, combination of shares or stock
dividends payable with respect to such Common Stock, appropriate adjustments in
the number and kind of such securities then subject to this Warrant shall be
made effective as of the date of such occurrence so that the position of Holder
upon exercise will be the same as it would have been had Holder owned
immediately prior to the occurrence of such events the Warrant Shares subject to
this Warrant. Such adjustment shall be made successively whenever any event
listed above shall occur and the Company will notify Holder of the Warrant of
each such adjustment. Any fraction of a share resulting from any adjustment
shall be eliminated and the price per share of the remaining shares subject to
this Warrant adjusted accordingly. If, as a result of an adjustment made
pursuant to this paragraph, the Holder of any Warrant thereafter exercised shall
become entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted Purchase Price between or among shares
of such classes of capital stock. This provision shall not limit the rights of
Holder as specified herein to exercise this Warrant prior to any of the events
described herein.
In the event of a complete liquidation of the Company, or a merger,
reorganization, consolidation of the Company with any other corporation in which
the Company is not the surviving corporation or the Company becomes a
wholly-owned subsidiary of another corporation, or the Company sells all or
substantially all of its assets (each such event referred to herein as a
"Corporate Event"), the Company shall provide written notice of the proposed
Corporate Event to all Holders of Warrants thirty-five (35) days prior to the
occurrence of any such Corporate Event, describing all material terms of the
proposed Corporate Event and providing the opportunity to all Holders to review
all relevant documents in connection with the Corporate Event.
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of this Warrant. If any fraction of a share of Common
Stock would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay to
Holder an amount in cash calculated by the Company to equal the then current
market value per share multiplied by such fraction computed to the nearest whole
cent. Holder, by acceptance of this Warrant, expressly waives any and all rights
to receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
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10. Notices. Notices and other communications provided for herein shall be in
writing and may be given by mail, courier, confirmed telex or facsimile
transmission and shall, unless otherwise expressly required, be deemed given
when received, when delivery thereof is refused, or when mailed first class,
postage prepaid and addressed as provided herein, whichever is earlier. In the
case of Holder, such notices and communications shall be addressed to its
address as shown on the books maintained by the Company, unless Holder shall
notify the Company that notices and communications should be sent to a different
address (or telex or facsimile number) in which case such notices and
communications shall be sent to the address (or telex or facsimile number)
specified by Holder. Notices and communications to the Company shall be sent to:
SI Technologies, Inc., 0000 Xxxxx 000xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, unless
Company notifies Holder that notices and communications shall be sent to another
address (or telex or facsimile number) specified by the Company in which case
such notices and communications shall be sent to the address (or telex or
facsimile number) specified by the Company.
11. Governing Law. This Warrant shall be governed by and construed in accordance
with the internal laws of Delaware.
12. Right of Action. All rights of action in respect of this Warrant are vested
in Holder, and Holder, without the consent of the holder of any other warrant,
may, on Holder's own behalf and for Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, Holder's rights hereunder,
including the right to exercise, exchange or surrender for purchase such Warrant
in the manner provided herein.
13. Payment of Taxes. The Company will pay all taxes and other governmental
charges that may be imposed on the Company or on this Warrant or on any
securities deliverable upon exercise of this Warrant with respect thereto. The
Company will not be required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any certificate for shares
of Common Stock or other securities underlying this Warrant or payment of cash
or other securities underlying this Warrant or payment of cash or other property
to any person other than Holder upon the exercise hereof and in case of such
transfer or payment, the Company shall not be required to issue any stock
certificate or security or pay any cash or distribute any property until any tax
or charge which the Company advises the Holder is due has been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
14. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. If (a) this
Warrant is mutilated and it is surrendered to the Company or (b) the Company
receives evidence to its satisfaction of the destruction, loss or theft of this
Warrant, and there is delivered to the Company such security or indemnity as may
be reasonably required by the Company to save it harmless, then, in the absence
of notice to the Company that this Warrant has been acquired by a bona fide
purchaser, the Company shall execute and deliver, in exchange for the mutilated
Warrant or in lieu of the destroyed, lost or stolen Warrant, a new Warrant of
like tenor and for a like aggregate number of Warrants.
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Upon the issuance of any new Warrant under this Section 14, the Company
may require the payment by Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and other expenses
(including the reasonable fees and expenses of counsel to the Company in
connection therewith).
Every new Warrant executed and delivered pursuant to this Section 14 in
lieu of any destroyed, lost or stolen Warrant shall constitute an original
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to the benefits hereof equally and proportionately with any and all other
Warrant issued in connection with the Offering.
The provisions of this Section 14 are exclusive and shall preclude (to
the extent lawful) all other rights or remedies with respect to the replacement
of the mutilated, destroyed, lost or stolen Warrant.
15. Miscellaneous Rights. The rights of Holder upon the occurrence of the events
set forth in this Warrant are cumulative. If more than one such event shall
occur and the periods following the occurrence of such events and prior to the
closing of the transactions that are the subject of such events overlap, Holder
may exercise such rights arising therefrom as Holder may elect without any
condition imposed upon such exercise not contained in this Warrant.
Neither the Company nor any of its Affiliates involved in any proposed
transaction that is the subject of such an event shall have any obligation to
Holder to consummate any such proposed transaction once an agreement or
agreement in principle or decision to proceed with respect thereto is reached,
whether on the terms first proposed or as revised, or to include Holder in, or
apprise Holder of, any negotiations or discussions concerning any such proposed
transaction among the prospective parties thereto, except as expressly provided
herein.
16. Persons Benefiting. This Warrant shall be binding upon and inure to the
benefit of the Company and its respective successors, assigns, beneficiaries,
executors and administrators, and the Holder from time to time of the Warrant.
Nothing in this Warrant is intended or shall be construed to confer upon any
person, other than the Company and the Holder of this Warrant, any right, remedy
or claim under or by reason of this Warrant or any part hereof.
17. Counterparts. This Warrant may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together constitute
one and the same instrument.
18. Amendments. The Company may, without the consent of the Holder, by
supplemental agreement or otherwise, make any changes or corrections in this
Warrant that it shall have been advised by counsel (a) are required to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or (b) add to the
covenants and agreements of the Company for the benefit of Holder, or surrender
any rights or power reserved to or conferred upon the Company in this Warrant;
provided that, in the case of (a) or (b), such changes or corrections shall not
adversely affect the interests of Holder in any material respect. Except as
otherwise provided in this Warrant, this Warrant or any
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provision hereof may be changed, waived, discharged or terminated only by a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
19. Headings. The descriptive headings of the several Sections of this Warrant
are inserted for convenience and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers, and to be dated as of the date set forth above.
SI TECHNOLOGIES, INC., a Delaware
corporation
By:_____________________________________
Name: Xxxx X. Xxxxx
Title: President
HOLDER:
________________________________________
Signature
________________________________________
Print or Type Name
________________________________________
Social Security Number or
Tax Identification Number
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
1. The undersigned, the holder of the foregoing Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant to exercise
___________ Warrants for, and to the purchase thereunder, __________ shares of
Common Stock of SI Technologies Inc., a Delaware corporation, and herewith makes
payment of $____________ thereof, and requests that the certificates for shares
of Common Stock be issued in the name(s) of, and delivered to _______________
whose address(es) is (are) _________________________.
2. The undersigned hereby certifies that the undersigned is an "Accredited
Investor" (as defined in Regulation D promulgated pursuant to the Securities Act
of 1933, as amended).
3. The undersigned acknowledges that if a registration statement covering the
shares to be issued upon the exercise of the Warrant is not effective as of the
date of the exercise, a legend in substantially the following form will be
placed on the certificates representing the Common Stock along with any other
legend required by any applicable state securities laws:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Dated: ____________, ____
________________________________________
(Signature)
________________________________________
(Print or Type Name)
________________________________________
Address
________________________________________
Social Security Number or
Tax Identification Number
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TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______________ the right to purchase shares of Common Stock
represented by _________________________ Warrants, and appoints
_________________________ attorney to transfer such rights on the books of
_________________________, with full power of substitution in the premises.
Dated: ____________, _____
________________________________________
Holder's Signature
________________________________________
(Print or Type Name)
________________________________________
Address
________________________________________
In the presence of:
________________________________________
(Signature)
________________________________________
(Print or Type Name)
