Exhibit 4.4
TANISYS TECHNOLOGY, INC.
WARRANT AGREEMENT
January 16, 1996
To the Subscribers whose names are set forth on Exhibit B hereto
Gentlemen:
Tanisys Technology, Inc., a Wyoming corporation (the "Company"), hereby
agrees to issue in connection with the private offering of its Common Stock, no
par value ("Common Stock"), Class C Stock Purchase Warrants entitling the
holders to purchase an aggregate of 941,177 shares of the Common Stock, each
Warrant currently being equal to one share of Common Stock of the Company, to be
evidenced by an instrument in the form attached hereto as Exhibit A (hereinafter
referred to as the "Warrant," and the Warrant and all instruments hereafter
issued in replacement, substitution, combination or subdivision thereof being
hereinafter collectively referred to as the "Warrants"). The number and
character of shares of Underlying Securities purchasable upon exercise of the
Warrants are subject to adjustment as provided in Section 6 below. The Warrants
will be exercisable by each Warrantholder as to all Units covered thereby at the
Purchase Price per Unit as defined below, at any time and from time to time
after the date hereof and ending at 5:00 p.m., Austin time, on December 20,
1997.
1. DEFINITIONS.
As used herein, the following terms, unless the context otherwise requires,
shall have for all purposes hereof the following respective meanings:
(a) The term "Act" refers to the Securities Act of 1933, as amended
from time to time.
(b) The term "Commission" refers to the Vancouver Stock Exchange, the
British Columbia Securities Commission or the Securities and Exchange
Commission.
(c) The term "Common Stock" refers to the Company's Common Stock, no
par value.
(d) The term "Other Securities" refers to any securities of the
Company or any other person (corporate or otherwise), any property
(including cash), and any right to receive any securities or property that
the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or
shall have been issued in exchange for or in replacement of Common Stock or
Other Securities pursuant to Section 6 hereof or otherwise; provided,
however, that Other Securities does not include cash dividends payable upon
Common Stock or Other Securities, which cash dividend was payable to
holders of record prior to the date of exercise of a Warrant.
(e) The term "Purchase Price" means $1.70 per Unit prior to
December 20, 1996 and $1.95 thereafter, subject to adjustment as set forth
in Subsection 6(a).
(f) The term "Underlying Securities" refers to the shares of Common
Stock and Other Securities issuable under this Warrant Agreement and the
Warrants pursuant to the exercise of the Warrants; provided, however, that
"underlying Securities" does not include Common Stock or Other Securities,
the right to the purchase of which has been waived pursuant to
Subsection 6(b) hereof.
(g) The term "Warrantholder" refers to the initial recipients of the
Warrants and any transferee or transferees thereof permitted by
Section 3(a) below.
2. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to you as follows:
(a) EXISTENCE. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(B) CORPORATE AND OTHER ACTION. The Company has all requisite power
and authority (corporate and other), and has taken all necessary corporate
action, to authorize, execute, deliver and perform this Warrant Agreement;
to execute, issue, sell and deliver the Warrants and a certificate or
certificates evidencing the Warrants; to authorize and reserve for issuance
and, upon payment from time to time of the Purchase Price, to issue, sell
and deliver the shares of the Underlying Securities issuable upon exercise
of the Warrants; and to perform all of its obligations under this Warrant
Agreement and the Warrants. This Warrant Agreement has been duly executed
and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms. No authorization,
approval, consent or other order of any regulatory authority is required
for such authorization, issue or sale.
(c) NO VIOLATION. The execution and delivery of this Warrant
Agreement, the consummation of the transactions herein contemplated, and
the compliance with the terms and provisions of this Warrant Agreement and
of the Warrants will not conflict with, or result in a breach of, or
constitute a default or an event permitting acceleration under, any
statute, the Certificate of Incorporation or Bylaws of the Company, or any
indenture, mortgage, deed of trust, note, bank loan, credit agreement,
franchise, license,
2
lease, permit or any other agreement, understanding, instrument, judgment,
decree, order, statute, rule or regulation to which the Company is a party
or by which it is bound.
(d) VALIDITY. The Warrant, when delivered to you, will be duly
authorized, executed and delivered and will be a legal, valid and binding
obligation of the Company enforceable in accordance with its terms. The
shares of Underlying Securities of the Company, when delivered to you upon
payment of the Purchase Price, will be duly authorized and validly issued
and outstanding, fully paid and nonassessable, and free of preemptive
rights.
3. COMPLIANCE WITH THE ACT.
(a) PURCHASE FOR INVESTMENT; TRANSFERABILITY. You represent and
warrant to the Company that the Warrants and the shares of Underlying
Securities are being acquired for investment and not with a view to the
distribution or resale thereof. You agree that the Warrants and the
Underlying Securities may not be transferred, sold, assigned or
hypothecated, except pursuant to a registration statement that has become
effective under the Act, setting forth the terms of such offering, the
underwriting discount and commissions and any other pertinent data with
respect thereto, unless you have provided the Company with an opinion of
counsel reasonably acceptable to the Company that such registration is not
required. You acknowledge that holders of the Company's Common Stock
currently are not afforded the use of Rule 144 promulgated under the Act
and that the Company is under no obligation to take the actions necessary
to make such Rule available to you.
(b) LEGEND. Each certificate representing Underlying Securities
shall be imprinted with a legend in substantially the following form:
The securities represented by this certificate were issued
upon exercise of a stock purchase warrant granted effective
December 20, 1995, have not been registered or qualified
under the Securities Act of 1933 or any applicable state
securities laws, and may not be sold or transferred in the
absence of effective registration or qualified under such
laws or an exemption from registration or qualification
thereunder. The transfer of such security also is subject
to the conditions specified in the Warrant Agreement, dated
as of January 16, 1996, with an effective date of
December 20, 1995, between the Corporation and certain
subscribers, and the Corporation reserves the right to
refuse the transfer of such security until such conditions
have been fulfilled with respect to such transfer. Upon
written request, a copy of such agreement will be furnished
by the Corporation to the holder hereof without charge. Any
transferee of the security represented by this certificate
also agrees to be bound by the terms and conditions of such
Warrant Agreement.
3
THE WARRANTS REPRESENTED BY THIS WARRANT CERTIFICATE AND ANY
SHARES ACQUIRED UPON THE EXERCISE THEREOF ARE SUBJECT TO A
HOLD PERIOD AND MAY NOT BE TRADED IN BRITISH COLUMBIA UNTIL
THE EXPIRY OF THE HOLD PERIOD EXCEPT AS PERMITTED BY THE
SECURITIES ACT (BRITISH COLUMBIA) AND REGULATIONS MADE UNDER
THE ACT. FOR CANADIAN RESIDENTS, THE HOLD PERIOD EXPIRES ON
JANUARY 16, 1997; HOWEVER, PURSUANT TO THE POLICIES OF THE
VANCOUVER STOCK EXCHANGE, THE WARRANTS, IF EXERCISABLE FOR A
PERIOD OF MORE THAN ONE YEAR, REMAIN NON-TRANSFERABLE FOR
THE BALANCE OF THE EXERCISE PERIOD.
(c) Unless the content otherwise requires, references in this
Section 3 to "you" or "your" shall mean and include a Warrantholder or a
holder of Underlying Securities, as the case may be.
4. EXERCISE OF WARRANTS.
Warrants may only be exercised in full by the Warrantholder by surrender of
the Warrant, with the form of subscription at the end thereof duly executed by
such Warrantholder, to the Company at its principal executive offices,
accompanied by certified or bank cashier's check payable to the order of the
Company in the full amount obtained by multiplying the number of Units
represented by the respective Warrant or Warrants by the Purchase Price per
Unit.
5. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE.
Any exercise of the Warrants pursuant to Section 4 hereof shall be deemed
to have been effective immediately prior to the close of business on the date on
which the Warrants with the subscription form and the check for the aggregate
Purchase Price shall have been received by the Company; except that the Company
shall not be required to open its stock transfer books in order to effect an
exercise, and the effective time in such event shall be the date the stock
transfer books are reopened. At such time, the person or persons in whose name
or names any certificate or certificates for shares of Underlying Securities
shall be issuable upon such exercise shall be deemed to have become the holder
or holders of record of the shares of Underlying Securities so purchased. As
soon as practicable after the exercise of any Warrant, the Company, at its
expense (including the payment by it of any applicable issue taxes), will cause
to be issued in the name of, and delivered to, the purchasing Warrantholder, a
certificate or certificates for the number of fully paid and nonassessable
shares of the Underlying Securities to which such Warrantholder shall be
entitled upon such exercise, plus in lieu of any fractional share to which such
Warrantholder would otherwise be entitled, cash in an amount determined pursuant
to Subsection 7(h) hereof. Such certificate shall contain the legend required
by Subsection 3(b) hereof.
4
6. ANTI-DILUTION PROVISIONS.
The Warrants are subject to the following terms and conditions during the
term thereof:
(a) STOCK DISTRIBUTIONS, SPLITS AND COMBINATIONS; ADJUSTMENTS. In
case of (i) the outstanding shares of Common Stock (or Other Securities)
shall be subdivided into a greater number of shares, (ii) a non-cash
dividend in Common Stock (or Other Securities) shall be paid in respect of
Common Stock (or Other Securities), or (iii) the outstanding shares of
Common Stock (or Other Securities) shall be combined in to a smaller number
of shares thereof, the number of shares of Underlying Securities per Unit
subsequent to such subdivision or combination or at the record date of such
dividend or distribution shall simultaneously with the effectiveness of
such subdivision or combination or immediately after the record date of
such dividend or distribution be equal to the number of shares of Common
Stock and Other Securities a holder would have owned and had a right to
receive as a result of such subdivision, combination, dividend or
distribution if such holder had actually held of record immediately prior
to the effectiveness of such subdivision or combination or immediately
prior to the record date of such dividend or distribution the number of
shares of Underlying Securities purchasable per Unit immediately prior to
the effectiveness of such subdivision or combination or the record date of
such dividend or distribution.
(b) REORGANIZATIONS AND RECAPITALIZATIONS. In case the Company shall
be reorganized or recapitalized by reclassifying its outstanding Common
Stock (or Other Securities) without par value to stock with par value,
then, as a condition of such reorganization or recapitalization, as the
case may be, immediately after the effective time of such reorganization or
recapitalization, each Warrantholder shall thereafter have the right to
purchase, upon the terms and conditions specified herein, the number of
shares of Underlying Securities per Unit that a holder would have owned and
had the right to receive as a result of such reorganization or
recapitalization if such holder had held of record the number of shares of
Underlying Securities per Unit immediately prior to such reorganization or
recapitalization. If any consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its assets
to another corporation, shall be effected in such a way that holders of
Common Stock and Other Securities shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock and
Other Securities, then, as a condition of such consolidation, merger or
sale, immediately after the effective time of such consolidation, merger or
sale, the Warrantholders shall thereafter, subject to the last sentence of
this Subsection, have the right to purchase and receive upon the basis and
upon the terms and conditions specified in this Warrant Agreement, the
number of shares of Underlying Securities per Unit that a holder would have
owned and had a right to receive as a result of such consolidation, merger
or sale if such holder had actually held of record immediately prior to
such consolidation, merger or sale the number of shares of Underlying
Securities purchasable per Unit immediately prior to such consolidation,
merger or sale. If the Company is merged into or consolidated with another
corporation
5
under circumstances where the Company is not the surviving corporation or
where the Company will be a wholly owned subsidiary of another corporation
(except where such merger or consolidation is effected merely in order to
recapitalize or reincorporate the Company), or if the Company sells or
otherwise disposes of all or substantially all of its property or assets to
another corporation, all outstanding Warrants may be canceled by the Board
of Directors of the Company as of the effective date of any such merger,
consolidation or sale, provided that (i) written notice of such
cancellation is given to each holder of a Warrant not later than 30 days
prior to such effective date and (ii) each holder of a Warrant shall have
the right to exercise such Warrant in full during the said 30-day period
preceding the effective date of such merger, consolidation or sale.
(c) EFFECT OF DISSOLUTION OR LIQUIDATION. In case the Company shall
dissolve or liquidate all or substantially all of its assets, all rights
under this Warrant Agreement and the Warrants shall terminate as of the
date upon which a certificate of dissolution or liquidation shall be filed
with the Secretary of State of Wyoming (or, if the Company theretofore
shall have been merged or consolidated with a corporation incorporated
under the laws of another state, the state of incorporation on the date
upon which action of equivalent effect shall have been taken); provided,
however, that (i) no dissolution or liquidation shall affect the rights
under Subsection (b) hereof of any Warrantholder and (ii) if the Company's
Board of Directors shall propose to dissolve or liquidate the Company, each
Warrantholder shall be given written notice of such proposal at the earlier
of (i) the time when the Company's shareholders are first given notice of
the proposal or (ii) the time when notice to the Company's shareholders is
first required.
(d) NOTICE OF CHANGE OF UNDERLYING SECURITIES. Whenever the number
of shares of Underlying Securities per Unit or the kind or amount of
securities or assets purchasable pursuant to the Warrants shall be adjusted
pursuant to any of the provisions of this Warrant Agreement, or the number
of shares of Underlying Securities or the kind or amount of securities or
assets receivable upon conversion of Underlying Securities shall be
adjusted pursuant to the terms thereof, the Company shall forthwith
thereafter cause to be sent to each Warrantholder a notice setting forth
such adjustment and also setting forth in detail the facts requiring such
adjustments.
7. FURTHER COVENANTS OF THE COMPANY.
(a) DILUTION OR IMPAIRMENTS. The Company will not, by amendment of
its certificate of incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of the Warrant or of this Warrant
Agreement, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary
or appropriate in order to protect the rights of the Warrantholders against
dilution or other impairment. Without limiting the generality of the
foregoing, the Company:
6
(i) shall at all times reserve and keep available, solely for
issuance and delivery upon the exercise of the Warrants, all shares of
the Underlying Securities from time to time issuable upon the exercise
of the Warrants and shall use its best efforts to ensure that the par
value per share, if any, of the Underlying Securities is at all times
equal to or less than the then effective Purchase Price per share of
Underlying Securities; and
(ii) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock and Other
Securities upon the exercise of the Warrants from time to time
outstanding.
(b) TITLE TO STOCK. All shares of the Underlying Securities
delivered upon the exercise of the Warrants shall be validly issued, fully
paid and nonassessable; each holder of a Warrant shall receive good and
marketable title to the Underlying Securities, free and clear of all voting
and other trust arrangements, liens, encumbrances, equities and claims
whatsoever; and the Company shall have paid all taxes, if any, in respect
of the issuance thereof.
(c) LISTING ON SECURITIES EXCHANGES; REGISTRATION. If the Company at
any time shall list any Common Stock on any national securities exchange,
the Company will, at its expense, simultaneously list on such exchange,
upon official notice of issuance upon the exercise of the Warrants, and
maintain such listing of, all shares of Common Stock included in the
Underlying Securities from time to time issuable upon the exercise of the
Warrants or upon conversion of Underlying Securities, and the Company will
so list on any national securities exchange, will so register, and will
maintain such listing of, any Other Securities if and at the time that any
securities of such class shall be listed on such national securities
exchange by the Company. You shall have no right to require the Company to
register the Warrants. The Company will use its best efforts to register
the shares of Common Stock underlying the Warrants and to keep such
registration statement effective for a period of no less than two years.
(d) REMEDIES. The Company stipulates that the remedies at law of the
Warrantholder or any holder of Underlying Securities in the event of any
default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant Agreement or the Warrants
are not and will not be adequate and that such terms may be specifically
enforced by a decree of the specific performance of any agreement contained
herein or in the Warrants or by an injunction against a violation of any of
the terms hereof or thereof or otherwise.
(e) EXCHANGE OF WARRANTS. Subject to Subsection 3(a) hereof, upon
surrender or exchange of any Warrant to the Company, the Company at its
expense will promptly issue and deliver to or upon the order of the holder
thereof a new Warrant of like tenor, in the name of such holder or as such
holder (upon payment by such Warrantholder of any applicable transfer
taxes) may direct, calling in the aggregate for the purchase of the
7
number of shares of the Underlying Securities called for on the face or
faces of the Warrant or Warrants so surrendered. The Warrants and all
rights thereunder are transferable in whole or in part upon the books of
the Company by the registered holder thereof subject to the provisions of
Subsection 3(a) hereof, in person or by duly authorized attorney, upon
surrender of the Warrant, duly endorsed, at the principal office of the
Company.
(f) REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of any Warrant, and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form and
amount to the Company, or in the case of such mutilation, upon surrender
and cancellation of such Warrant, the Company, at the expense of the
Warrantholder, will execute and deliver, in lieu thereof, a new Warrant of
like tenor.
(g) REPORTING BY THE COMPANY. The Company agrees that during the
term of the Warrants and as long as you hold Underlying Securities, it will
use its best efforts to keep current in the filing of all forms and other
materials, if any, which it may be required to file with the appropriate
regulatory authority pursuant to the Exchange Act and all other forms and
reports required to be filed with any regulatory authority having
jurisdiction over the Company.
(h) FRACTIONAL SHARES. No fractional shares of Underlying Securities
are to be issued upon the exercise of any Warrant, but the Company shall
pay a cash adjustment in respect of any fraction of a share that would
otherwise be issuable in an amount equal to such fraction multiplied by the
closing market price per share of Underlying Securities on the day of
exercise, as determined by the closing bid and asked price regular way on
the principal national securities exchange on which the Underlying
Securities is listed or admitted to trading, or if not listed or admitted
to trading on any national securities exchange, the average of the highest
reported bid and lowest reported asked price over the preceding 30-day
period as furnished by the National Quotation Bureau Incorporated;
provided, however, that if the Underlying Securities are not traded in such
manner that the quotations referred to herein are available, the market
price shall be deemed to be the fair market value of such Underlying
Securities as reasonably determined by the Board of Directors.
8. OTHER WARRANTHOLDERS.
The Warrants are issued upon the following terms, to all of which each
holder or owner thereof by the taking thereof consents and agrees: (a) any
person who shall become a transferee, within the limitations on transfer imposed
by Subsection 3(a) hereof, shall take such Warrant subject to the provisions of
Subsection 3(a) hereof and the other provisions hereof and thereupon shall be
authorized to represent himself as absolute owner thereof and, subject to the
restrictions contained in this Warrant Agreement, shall be empowered to transfer
absolute title by endorsement and delivery thereof to a permitted bonafide
purchaser for value; (b) each prior
8
taker or owner waives and renounces all of his equities or rights in such
Warrant in favor of each such permitted bonafide purchaser, and each such
permitted bonafide purchaser shall acquire absolute title thereto and to all
rights presented thereby; (c) until such time as the respective Warrant is
transferred on the books of the Company, the Company may treat the registered
holder thereof as the absolute owner thereof for all purposes, notwithstanding
any notice to the contrary; and (d) all references to the words "you" and "your"
in this Warrant Agreement shall be deemed to apply with equal effect to any
person to whom a Warrant has been transferred in accordance with the terms
hereof, and where appropriate, to any person holding shares of the Underlying
Securities.
9. MISCELLANEOUS.
All notices, certificates, and other communications from or at the request
of the Company to any Warrantholder shall be mailed by first class, registered,
or certified mail, postage prepaid, to the address set forth herein, to such
address as may have been furnished to the Company in writing by such
Warrantholder, or, if no notice of transfer has been received by the Company, to
the address of the last holder of such Warrant. This Warrant Agreement and any
of the terms hereof may be changed, waived, discharged, or terminated only
pursuant to Subsection 6(b) hereof or by an instrument in writing signed by the
Company and the holders of Warrants to purchase in excess of 50% of the
Underlying Securities then subject to purchase pursuant to the Warrants. This
Warrant Agreement shall be construed and enforced in accordance with and
governed by the internal laws of the State of Wyoming. The headings in this
Warrant Agreement are for purpose of reference only and shall not limit or
otherwise affect any of the terms hereof. This Warrant Agreement, together with
the forms of instruments annexed hereto as Exhibit A, constitutes the full and
complete agreement of the parties hereto with respect to the subject matter
hereof.
THIS WARRANT AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE WARRANT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the Company has caused this Warrant Agreement to be
executed as of the 16th day of January, 1996, with an effective date of
December 20, 1995, by its proper corporate officers, thereunto duly authorized.
TANISYS TECHNOLOGY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Chairman and President
9
CONFIRMED:
[SUBSCRIBER SIGNATURE]
--------------------------------------------
SIGNATURE
Printed Name:
-------------------------------
Title (if applicable):
----------------------
--------------------------------------------
SIGNATURE
Printed Name:
-------------------------------
Title (if applicable):
----------------------
(Each co-owner or joint owner must sign.)
10
