EXHIBIT 10.15
STOCK PURCHASE WARRANT
This STOCK PURCHASE WARRANT ("Warrant") is issued
this ____ day of September 1998, by METRISA, INC., a Delaware
corporation (the "Company"), to SIRROM INVESTMENTS, INC., a
Tennessee corporation (SIRROM INVESTMENTS, INC. and any
subsequent assignee or transferee hereof are hereinafter referred to
collectively as "Holder" or "Holders").
AGREEMENT:
1. Issuance of Warrant; Term. For and in consideration
of SIRROM INVESTMENTS, INC. making a loan to the Company in
an amount of Two Million and no/100ths Dollars ($2,000,000.00)
pursuant to the terms of a secured promissory note of even date
herewith (the "Note") and related loan agreement of even date herewith
(the "Loan Agreement"), and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company hereby grants to Holder the right to purchase 143,738 shares
("Base Amount") of the Company's common stock (the "Common
Stock"), which the Company represents to equal 8.63% of the shares of
capital stock outstanding on the date hereof, calculated on a fully diluted
basis and assuming exercise of this Warrant.
The shares of Common Stock issuable upon exercise of this
Warrant are hereinafter referred to as the "Shares." This Warrant shall
be exercisable at any time and from time to time from the date hereof
until October 31, 2003 (the "Expiration Date").
2. Exercise Price. The exercise price (the "Exercise
Price") per share for which all or any of the Shares may be purchased
pursuant to the terms of this Warrant shall be Fifty Cents ($.50).
3. Exercise. This Warrant may be exercised by the Holder
hereof (but only on the conditions hereinafter set forth) in whole or in
part, upon delivery of written notice of intent to exercise to the
Company in the manner at the address of the Company set forth in
Section 14 hereof, together with this Warrant and payment to the
Company of the aggregate Exercise Price of the Shares so purchased.
The Exercise Price shall be payable, at the option of the Holder, (a) by
certified or bank check, (b) by the surrender of the Note or portion
thereof having an outstanding principal balance equal to the aggregate
Exercise Price or (c) by the surrender of a portion of this Warrant
where the Shares subject to the portion of this Warrant that is
surrendered have a fair market value equal to the aggregate Exercise
Price. In the absence of an established public market for the Common
Stock, fair market value shall be established by the Company's board
of directors in a commercially reasonable manner. Upon exercise of
this Warrant as aforesaid, the Company shall as promptly as
practicable, and in any event within fifteen (15) days thereafter, execute
and deliver to the Holder of this Warrant a certificate or certificates for
the total number of whole Shares for which this Warrant is being
exercised in such names and denominations as are requested by such
Holder. If this Warrant shall be exercised with respect to less than all
of the Shares, the Holder shall be entitled to receive a new Warrant
covering the number of Shares in respect of which this Warrant shall
not have been exercised, which new Warrant shall in all other respects
be identical to this Warrant. The Company covenants and agrees that
it will pay when due any and all state and federal issue taxes which may
be payable in respect of the issuance of this Warrant or the issuance of
any Shares upon exercise of this Warrant.
4. Covenants and Conditions. The above provisions are
subject to the following:
(a) Neither this Warrant nor the Shares have been
registered under the Securities Act of 1933, as amended
("Securities Act"), or any state securities laws ("Blue Sky
Laws"). This Warrant has been acquired for investment
purposes and not with a view to distribution or resale and may
not be sold or otherwise transferred without (i) an effective
registration statement for such Warrant under the Securities Act
and such applicable Blue Sky Laws, or (ii) an opinion of
counsel, which opinion and counsel shall be reasonably
satisfactory to the Company and its counsel, that registration is
not required under the Securities Act or under any applicable
Blue Sky Laws (the Company hereby acknowledges that
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C. is acceptable counsel). Transfer of
the Shares shall be restricted in the same manner and to the
same extent as the Warrant and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF COMMON STOCK
REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE
TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT UNDER THE ACT AND SUCH
APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (II) IN THE OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY,
REGISTRATION UNDER SUCH SECURITIES ACTS
AND SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other
documents and instruments as counsel for the Company
reasonably deems necessary to effect the compliance of the
issuance of this Warrant and any shares of Common Stock
issued upon exercise hereof with applicable federal and state
securities laws.
(b) The Company covenants and agrees that all
Shares which may be issued upon exercise of this Warrant will,
upon issuance and payment therefor, be legally and validly
issued and outstanding, fully paid and nonassessable, free from
all taxes, liens, charges and preemptive rights, if any, with
respect thereto or to the issuance thereof. The Company shall
at all times reserve and keep available for issuance upon the
exercise of this Warrant such number of authorized but unissued
shares of Common Stock as will be sufficient to permit the
exercise in full of this Warrant.
(c) The Company covenants and agrees that it shall
not sell any shares of the Company's capital stock at a price per
share below the fair market value of such shares, without the
prior written consent of the Holder hereof (except in accordance
with the Company's stock option plans and currently outstanding
options and warrants, which in no event shall twelve and one
half percent (12.5%) of the Stock of the Borrower outstanding
on the date hereof). In the event that the Company sells shares
of Common Stock at a price per share below the fair market
value of such shares (a "Below Market Transaction"), without
the prior written consent of the Holder hereof, the Company
covenants and agrees that the number of shares issuable upon
exercise of this Warrant shall be equal to the product obtained
by multiplying the number of shares issuable pursuant to this
Warrant prior to the Below Market Transaction by a fraction,
the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to consummation
of the Below Market Transaction plus the number of shares of
Common Stock issued in the Below Market Transaction, and the
denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to the Below Market
Transaction plus the number of shares of Common Stock that
the aggregate consideration received by the Company in the
Below Market Transaction would purchase at fair market value.
For purposes of this subsection, Common Stock shall be
deemed to include that number of shares of Common Stock that
would be obtained assuming (i) the conversion of any securities
of the Company which, by their terms, are convertible into or
exchangeable for Common Stock, and (ii) the exercise of all
options to purchase or rights to subscribe for Common Stock or
securities which, by their terms, are convertible into or
exchangeable for Common Stock. In the absence of an
established public market for the securities sold by the Company
in a Below Market Transaction, fair market value shall be
established by the Company's board of directors in a
commercially reasonable manner.
5. Transfer of Warrant. Subject to the provisions of
Section 4 hereof, this Warrant may be transferred, in whole or in part,
to any person or business entity, by presentation of the Warrant to the
Company with written instructions for such transfer. Upon such
presentation for transfer, the Company shall promptly execute and
deliver a new Warrant or Warrants in the form hereof in the name of
the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in
connection with the preparation, issuance and delivery of Warrants
under this Section.
6. Warrant Holder Not Shareholder; Rights Offering;
Preemptive Rights. Except as otherwise provided herein, this Warrant
does not confer upon the Holder, as such, any right whatsoever as a
shareholder of the Company. Notwithstanding the foregoing, if the
Company should offer to all of the Company's shareholders the right to
purchase any securities of the Company, then all shares of Common
Stock that are subject to this Warrant shall be deemed to be outstanding
and owned by the Holder and the Holder shall be entitled to participate
in such rights offering. The Company shall not grant any preemptive
rights with respect to any of its capital stock without the prior written
consent of the Holder.
7. Observation Rights. The Holder of this Warrant shall
receive notice of and be entitled to attend or may send a representative
to attend all meetings of the Company's Board of Directors in a non-
voting observation capacity and shall receive a copy of all
correspondence and information delivered to the Company's Board of
Directors, from the date hereof until such time as the indebtedness
evidenced by the Note has been paid in full; provided, that Holder shall
maintain the confidentiality of such information except for any
disclosures required by law.
8. Adjustment Upon Changes in Stock.
(a) If all or any portion of this Warrant shall be
exercised subsequent to any stock split, stock dividend,
recapitalization, combination of shares of the Company, or other
similar event, occurring after the date hereof, then the Holder
exercising this Warrant shall receive, for the aggregate Exercise
Price, the aggregate number and class of shares which such
Holder would have received if this Warrant had been exercised
immediately prior to such stock split, stock dividend,
recapitalization, combination of shares, or other similar event.
If any adjustment under this Section 8(a), would create a
fractional share of Common Stock or a right to acquire a
fractional share of Common Stock, such fractional share shall be
disregarded and the number of shares subject to this Warrant
shall be the next higher number of shares, rounding all fractions
upward. Whenever there shall be an adjustment pursuant to this
Section 8(a), the Company shall forthwith notify the Holder or
Holders of this Warrant of such adjustment, setting forth in
reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated.
(b) If all or any portion of this Warrant shall be
exercised subsequent to any merger, consolidation, exchange of
shares, separation, reorganization or liquidation of the
Company, or other similar event, occurring after the date
hereof, as a result of which shares of Common Stock shall be
changed into the same or a different number of shares of the
same or another class or classes of securities of the Company or
another entity, or the holders of Common Stock are entitled to
receive cash or other property, then the Holder exercising this
Warrant shall receive, for the aggregate Exercise Price, the
aggregate number and class of shares, cash or other property
which such Holder would have received if this Warrant had
been exercised immediately prior to such merger, consolidation,
exchange of shares, separation, reorganization or liquidation, or
other similar event. If any adjustment under this Section 8(b)
would create a fractional share of Common Stock or a right to
acquire a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares subject to
this Warrant shall be the next higher number of shares, rounding
all fractions upward. Whenever there shall be an adjustment
pursuant to this Section 8(b), the Company shall forthwith notify
the Holder or Holders of this Warrant of such adjustment,
setting forth in reasonable detail the event requiring the
adjustment and the method by which such adjustment was
calculated.
9. Put Agreement.
(a) The Company hereby irrevocably grants and
issues to Holder the right and option to sell to the Company (the
"Put") this Warrant for a period of thirty (30) days immediately
prior to the Expiration Date, at a purchase price (the "Put
Price") equal to the Fair Market Value (as hereinafter defined)
of the shares of Common Stock issuable to Holder upon exercise
of this Warrant less the Exercise Price.
(b) Holder may exercise the Put by delivery of
written notice (the "Put Notice") of such exercise to the
Company in the manner and at the address of the Company set
forth in Section 14 hereof. The Company shall pay to Holder,
in cash or by wire transfer of immediately available funds, the
Put Price within thirty (30) days of the receipt of the Put Notice.
(c) For purposes of this Section 9, the Fair Market
Value of the shares of Common Stock of the Company issuable
pursuant to this Warrant shall be determined as follows:
(i) The Company and the Holder shall each
appoint an independent, experienced appraiser who is a
member of a recognized professional association of
business appraisers. The two appraisers shall determine
the value of the shares of Common Stock which would
be issued upon the exercise of the Warrant, assuming
that the sale would be between a willing buyer and a
willing seller, both of whom have full knowledge of the
financial and other affairs of the Company, and neither
of whom is under any compulsion to sell or to buy.
(ii) If the higher of the two appraisals is not
ten percent (10%) greater than the lower of the
appraisals, the Fair Market Value shall be the average of
the two appraisals. If the higher of the two appraisals is
equal to or greater than ten percent (10%) more than the
lower of the two appraisals, then a third appraiser shall
be appointed by the two appraisers, and if they cannot
agree on a third appraiser, the American Arbitration
Association shall appoint the third appraiser. The third
appraiser, regardless of who appoints him or her, shall
have the same qualifications as the first two appraisers.
(iii) The Fair Market Value after the
appointment of the third appraiser shall be the mean of
the three appraisals.
(iv) The fees and expenses of the appraisers
shall be paid one-half by the Company and one-half by
the Holder.
(d) Notwithstanding the foregoing, if the Common Stock is
traded on a national securities exchange or included in the
Nasdaq National Market, the Fair Market value will be the
average of the closing price of the Common Stock during the
twenty (20) trading days preceding the payment of the Put Price
(as listed in The Wall Street Journal).
10. Registration.
(a) The Company and the Holder of the Warrant and
the Shares agree that if at any time after the date hereof the
Company shall propose to file a registration statement with
respect to any of its Common Stock on a form suitable for a
secondary offering, it will give notice in writing to such effect
to the Holder(s) at least thirty (30) days prior to such filing,
and, at the written request of any such registered holder, made
within ten (10) days after the receipt of such notice, will include
therein at the Company's cost and expense (including the fees
and expenses of counsel to such Holder(s), but excluding
underwriting discounts, commissions and filing fees attributable
to the Shares included therein) such of the Shares as such
Holder(s) shall request; provided, however, that if the offering
being registered by the Company is underwritten and if the
representative of the underwriters certifies in writing that the
inclusion therein of the Shares would materially and adversely
affect the sale of the securities to be sold by the Company
thereunder, then the Company shall be required to include in the
offering only that number of securities, including the Shares,
which the underwriters determine in their sole discretion will
not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among all selling
shareholders according to the total amount of securities entitled
to be included therein owned by each selling shareholder, but in
no event shall the total amount of Shares included in the offering
be less than the number of securities included in the offering by
any other single selling shareholder unless all of the Shares are
included in the offering).
(b) Whenever the Company undertakes to effect the
registration of any of the Shares, the Company shall, as
expeditiously as reasonably possible:
(i) Prepare and file with the Securities and
Exchange Commission (the "Commission") a
registration statement covering such Shares and use its
best efforts to cause such registration statement to be
declared effective by the Commission as expeditiously as
possible and to keep such registration effective until the
earlier of (A) the date when all Shares covered by the
registration statement have been sold or (B) ninety (90)
days from the effective date of the registration statement;
provided, that before filing a registration statement or
prospectus or any amendment or supplements thereto,
the Company will furnish to each Holder of Shares
covered by such registration statement and the
underwriters, if any, copies of all such documents
proposed to be filed (excluding exhibits, unless any such
person shall specifically request exhibits), which
documents will be subject to the review of such Holders
and underwriters, and the Company will not file such
registration statement or any amendment thereto or any
prospectus or any supplement thereto (including any
documents incorporated by reference therein) with the
Commission if (A) the underwriters, if any, shall
reasonably object to such filing or (B) if information in
such registration statement or prospectus concerning a
particular selling Holder has changed and such Holder or
the underwriters, if any, shall reasonably object.
(ii) Prepare and file with the Commission
such amendments and post-effective amendments to such
registration statement as may be necessary to keep such
registration statement effective during the period
referred to in Section 10(b)(i) and to comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement, and cause the prospectus to be supplemented
by any required prospectus supplement, and as so
supplemented to be filed with the Commission pursuant
to Rule 424 under the Securities Act.
(iii) Furnish to the selling Holder(s) such
numbers of copies of such registration statement, each
amendment thereto, the prospectus included in such
registration statement (including each preliminary
prospectus), each supplement thereto and such other
documents as they may reasonably request in order to
facilitate the disposition of the Shares owned by them.
(iv) Use its best efforts to register and qualify
under such other securities laws of such jurisdictions as
shall be reasonably requested by any selling Holder and
do any and all other acts and things which may be
reasonably necessary or advisable to enable such selling
Holder to consummate the disposition of the Shares
owned by such Holder, in such jurisdictions; provided,
however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify
to transact business or to file a general consent to service
of process in any such states or jurisdictions.
(v) Promptly notify each selling Holder of
the happening of any event as a result of which the
prospectus included in such registration statement
contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not
misleading and, at the request of any such Holder, the
Company will prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the
purchasers of such Shares, such prospectus will not
contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein
not misleading.
(vi) Provide a transfer agent and registrar for
all such Shares not later than the effective date of such
registration statement.
(vii) Enter into such customary agreements
(including underwriting agreements in customary form
for a primary offering) and take all such other actions as
the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Shares
(including, without limitation, effecting a stock split or
a combination of shares).
(viii) Make available for inspection by any
selling Holder or any underwriter participating in any
disposition pursuant to such registration statement and
any attorney, accountant or other agent retained by any
such selling Holder or underwriter, all financial and
other records, pertinent corporate documents and
properties of the Company, and cause the officers,
directors, employees and independent accountants of the
Company to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
(ix) Promptly notify the selling Holder(s) and
the underwriters, if any, of the following events and (if
requested by any such person) confirm such notification
in writing: (A) the filing of the prospectus or any
prospectus supplement and the registration statement and
any amendment or post-effective amendment thereto
and, with respect to the registration statement or any
post-effective amendment thereto, the declaration of the
effectiveness of such documents, (B) any requests by the
Commission for amendments or supplements to the
registration statement or the prospectus or for additional
information, (C) the issuance or threat of issuance by the
Commission of any stop order suspending the
effectiveness of the registration statement or the
initiation of any proceedings for that purpose and (D) the
receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threat of
initiation of any proceeding for such purposes.
(x) Make every reasonable effort to prevent
the entry of any order suspending the effectiveness of the
registration statement and obtain at the earliest possible
moment the withdrawal of any such order, if entered.
(xi) Cooperate with the selling Holder(s) and
the underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing the
Shares to be sold and not bearing any restrictive legends,
and enable such Shares to be in such lots and registered
in such names as the underwriters may request at least
two (2) business days prior to any delivery of the Shares
to the underwriters.
(xii) Provide a CUSIP number for all the
Shares not later than the effective date of the registration
statement.
(xiii) Prior to the effectiveness of the
registration statement and any post-effective amendment
thereto and at each closing of an underwritten offering,
(A) make such representations and warranties to the
selling Holder(s) and the underwriters, if any, with
respect to the Shares and the registration statement as are
customarily made by issuers in primary underwritten
offerings; (B) use its best efforts to obtain "cold
comfort" letters and updates thereof from the
Company's independent certified public accountants
addressed to the selling Holders and the underwriters, if
any, such letters to be in customary form and covering
matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with
primary underwritten offerings; (C) deliver such
documents and certificates as may be reasonably
requested (1) by the holders of a majority of the Shares
being sold, and (2) by the underwriters, if any, to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Company; and (D) obtain opinions of counsel to the
Company and updates thereof (which counsel and which
opinions shall be reasonably satisfactory to the
underwriters, if any), covering the matters customarily
covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested
by the selling Holders and underwriters or their counsel.
Such counsel shall also state that no facts have come to
the attention of such counsel which cause them to believe
that such registration statement, the prospectus contained
therein, or any amendment or supplement thereto, as of
their respective effective or issue dates, contains any
untrue statement of any material fact or omits to state
any material fact necessary to make the statements
therein not misleading (except that no statement need be
made with respect to any financial statements, notes
thereto or other financial data or other expertized
material contained therein). If for any reason the
Company's counsel is unable to give such opinion, the
Company shall so notify the Holders of the Shares and
shall use its best efforts to remove expeditiously all
impediments to the rendering of such opinion.
(xiv) Otherwise use its best efforts to comply
with all applicable rules and regulations of the
Commission, and make generally available to its security
holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-
five (45) days after the end of any twelve-month period
(or ninety (90) days, if such period is a fiscal year) (A)
commencing at the end of any fiscal quarter in which the
Shares are sold to underwriters in a firm or best efforts
underwritten offering, or (B) if not sold to underwriters
in such an offering, beginning with the first month of the
first fiscal quarter of the Company commencing after the
effective date of the registration statement, which
statements shall cover such twelve-month periods.
(c) After the date hereof, the Company shall not
grant to any holder of securities of the Company any registration
rights which have a priority greater than or equal to those
granted to Holders pursuant to this Warrant without the prior
written consent of the Holder(s).
(d) The Company's obligations under Section 10(a)
above with respect to each Holder of Shares are expressly
conditioned upon such Holder's furnishing to the Company in
writing such information concerning such holder and the terms
of such holder's proposed offering as the Company shall
reasonably request for inclusion in the registration statement.
If any registration statement including any of the Shares is
filed, then the Company shall indemnify each Holder thereof
(and each underwriter for such holder and each person, if any,
who controls such underwriter within the meaning of the
Securities Act) from any loss, claim, damage or liability arising
out of, based upon or in any way relating to any untrue
statement of a material fact contained in such registration
statement or any omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except for any such statement or
omission based on information furnished in writing by such
Holder of the Shares expressly for use in connection with such
registration statement; and such Holder shall indemnify the
Company (and each of its officers and directors who has signed
such registration statement, each director, each person, if any,
who controls the Company within the meaning of the Securities
Act, each underwriter for the Company and each person, if any,
who controls such underwriter within the meaning of the
Securities Act) and each other such holder against any loss,
claim, damage or liability arising from any such statement or
omission which was made in reliance upon information
furnished in writing to the Company by such holder of the
Shares expressly for use in connection with such registration
statement.
(e) For purposes of this Section 10, all of the Shares
shall be deemed to be issued and outstanding.
11. Certain Notices. In case at any time the Company shall
propose to:
(a) declare any cash dividend upon its Common
Stock;
(b) declare any dividend upon its Common Stock
payable in stock or make any special dividend or other
distribution to the holders of its Common Stock;
(c) offer for subscription to the holders of any of its
Common Stock any additional shares of stock in any class or
other rights;
(d) reorganize, or reclassify the capital stock of the
Company, or consolidate, merge or otherwise combine with, or
sell of all or substantially all of its assets to, another
corporation;
(e) voluntarily or involuntarily dissolve, liquidate or
wind up of the affairs of the Company; or
(f) redeem or purchase any shares of its capital stock
or securities convertible into its capital stock;
then, in any one or more of said cases, the Company shall give
to the Holder of the Warrant, by certified or registered mail, (i)
at least twenty (20) days' prior written notice of the date on
which the books of the Company shall close or a record shall be
taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, and (ii) in the case of such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least twenty (20) days'
prior written notice of the date when the same shall take place.
Any notice required by clause (i) shall also specify, in the case
of any such dividend, distribution or subscription rights, the
date on which the holders of Common Stock shall be entitled
thereto, and any notice required by clause (ii) shall specify the
date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up, as the case may be.
12. Rights of Co-Sale.
(a) ▇▇▇▇ ▇▇▇▇▇ (the "Management/Venture Capital
Shareholders") shall enter into any transaction that would result
in the sale by him of any Common Stock now or hereafter
owned by him unless prior to such sale such Management
Shareholder shall give written notice (the "Co-Sale Notice") to
Holder addressed and delivered as set forth in Section 14 hereof,
of its intention to effect such sale in order that Holder may
exercise its rights under this Section 12 as hereinafter described.
Such notice shall set forth (i) the number of shares to be sold by
such Management Shareholder, (ii) the principal terms of the
sale, including the price at which the shares are intended to be
sold, and (iii) an offer by such Management Shareholder to use
his best efforts to cause to be included with the shares to be sold
by him in the sale, on a share-by-share basis and on the same
terms and conditions, the Shares issuable or issued to Holder
pursuant this Warrant.
(b) If Holder has not accepted such offer in writing
within a period of ten (10) days from the date of receipt of the
Co-Sale Notice, then such Management Shareholder shall
thereafter be free for a period of ninety (90) days to sell the
number of shares specified in the Co-Sale Notice, at a price no
greater than the price set forth in the Co-Sale Notice and on
otherwise no more favorable terms to such Management
Shareholder than as set forth in Co-Sale Notice, without any
further obligation to Holder in connection with such sale. In the
event that such Management Shareholder fails to consummate
such sale within such ninety-day period, the shares specified in
Co-Sale Notice shall continue to be subject to this Section 12.
(c) If Holder accepts such offer in writing within ten-
day period, then such acceptance shall be irrevocable unless
such Management Shareholder shall be unable to cause to be
included in the sale the number of Shares of stock held by
Holder and set forth in the written acceptance. In that event,
such Management Shareholder and Holder shall participate in
the sale equally, with such Management Shareholder and Holder
each selling half the total number of such shares to be sold in the
sale.
13. Article and Section Headings. Numbered and titled
article and section headings are for convenience only and shall not be
construed as amplifying or limiting any of the provisions of this
Warrant.
14. Notice. Any and all notices, elections or demands
permitted or required to be made under this Warrant shall be in writing,
signed by the party giving such notice, election or demand and shall be
delivered personally, telecopied, or sent by certified mail or overnight
via nationally recognized courier service (such as Federal Express), to
the other party at the address set forth below, or at such other address
as may be supplied in writing and of which receipt has been
acknowledged in writing. The date of personal delivery or telecopy or
two (2) business days after the date of mailing (or the next business day
after delivery to such courier service), as the case may be, shall be the
date of such notice, election or demand. For the purposes of this
Warrant:
The Address of Holder is: Sirrom Investments, Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No. 615/726-1208
with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No. 615/256-9958
The Address of Company is: Metrisa, Inc.
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No. 781/275-9665
with a copy to: Bowditch & ▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No. 508/756-7636
15. Severability. If any provisions(s) of this Warrant or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Warrant and the
application of such provisions to other persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent
permitted by law.
16. Entire Agreement. This Warrant between the Company
and Holder represents the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreement are merged herein.
17. Governing Law and Amendments. This Warrant shall
be construed and enforced under the laws of the State of Tennessee
applicable to contracts to be wholly performed in such State. No
amendment or modification hereof shall be effective except in a writing
executed by each of the parties hereto.
18. Counterparts. This Warrant may be executed in any
number of counterparts and be different parties to this Warrant in
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the same Warrant.
19. Consent to Jurisdiction; Exclusive Venue. The
Company hereby irrevocably consents to the jurisdiction of the United
States District Court for the Middle District of Tennessee and of all
Tennessee state courts sitting in Davidson County, Tennessee, for the
purpose of any litigation to which Holder may be a party and which
concerns this Warrant. It is further agreed that venue for any such action
shall lie exclusively with courts sitting in Davidson County, Tennessee,
unless Holder agrees to the contrary in writing.
20. Waiver of Trial by Jury. HOLDER AND THE
COMPANY HEREBY KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY
ACTIONS, PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS,
WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW
OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING
TO THIS WARRANT.
IN WITNESS WHEREOF, the parties hereto have set their
hands as of the date first above written.
COMPANY:
METRISA, INC.,
a Delaware corporation
By:_____________________________________
Title:____________________________________
HOLDER:
SIRROM INVESTMENTS, INC.,
a Tennessee corporation
By:______________________________________
Title:____________________________________
IN WITNESS WHEREOF, the parties hereto have executed or
caused this Warrant to be executed as of the date first above written for
the purpose of agreeing to the terms and conditions of Section 12
hereof.
MANAGEMENT SHAREHOLDERS:
________________________________________
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