1
Exhibit 10.7
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED IN A TRANSACTION NOT
INVOLVING ANY PUBLIC OFFERING AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
XXXXXXX-XXXXXXX, INC.
---------------
CLASS A STOCK PURCHASE WARRANT
---------------
X. Xxxxx.
XxXxxxx-Xxxxxxx, Inc., a Delaware corporation (hereinafter "Company"),
for value received hereby grants to Xxxxxxx X. Xxxxxxx, Xx. or his registered
assigns (hereinafter "Holder"), under the terms herein the right to purchase
fifty-two thousand eighty-three (52,083) fully paid and non-assessable shares
of the Company's outstanding common stock, as provided by paragraph 2.01B. of
the Investment Agreement referenced below, in addition to any shares that may
arise under any other stock purchase warrants or stock acquisitions.
II. Expiration.
This Warrant may be exercised at any time in whole or in part from and
after May 25, 1996 and shall expire the later of (i) three (3) years from the
date of the final payment on the Debentures issued under the Investment
Agreement or (ii) May 25, 2004.
III. Exercise Price.
The exercise price of this Warrant shall be One Cent ($0.01) per share.
IV. Investment Agreement.
This Warrant is subject to the terms of an Investment Agreement dated
May 25, 1994 between the Company, the Holder and certain other parties, as
amended by a certain First Amendment to Investment Agreement dated the date
hereof, a copy of which is on file and may be examined at the Company's offices
during regular business hours.
V. Anti-dilution and Registration Rights.
Regardless of the above grant provision, the Holder shall have certain
anti-dilution rights as set forth in the Investment Agreement and registration
rights as set forth in a Registration Agreement dated May 25, 1994 between the
Company, the Holder and certain other parties, as amended by a certain First
Amendment to Registration Agreement of even date herewith.
VI. Exercise Procedure.
This Warrant may be exercised, in whole or in part, by presenting it and
tendering the exercise price in legal tender or by bank cashier's or certified
check at the principal office of the Company along with written subscription
substantially in the form of Exhibit A hereof. In lieu of paying such
exercise price in cash the Holder may tender to the Company for cancellation
that number of shares issuable under this
2
Warrant which represents the aggregate fair market value (as determined in good
faith by the board of directors of the Company and the Holder) equal to such
exercise price. The date on which this Warrant is thus surrendered,
accompanied by tender or payment as hereinbefore or hereinafter provided, is
referred to herein as the Exercise Date. The Company shall forthwith at its
expense (including the payment of issue taxes) issue and deliver the proper
number of shares, and such shares shall be deemed issued for all purposes as of
the opening of business on the Exercise Date notwithstanding any delay in the
actual issuance.
VII. Sale or Exchange of Company or Assets.
If prior to issuance of stock under this Warrant the Company sells or
exchanges all or substantially all of its assets, or all of the
then-outstanding shares of capital stock of the Company are sold or exchanged
to any party other than the Holder, then the Holder at his option may receive,
in lieu of the stock otherwise issuable hereunder, such money or property as he
would have been entitled to receive if this Warrant had been exercised prior to
such sale or exchange.
VIII. Sale of Warrant or Shares.
Neither this Warrant nor other shares of common stock issuable upon
exercise of the conversion rights herein, have been registered under the
Securities Act of 1933, as amended, or under the securities laws of any state.
Neither this Warrant nor any shares when issued may be sold, assigned,
transferred, pledged or hypothecated or otherwise disposed of in the absence of
(i) an affective registration statement for this Warrant or the shares, as the
case may be, under the Securities Act of 1933, as amended, and such
registration or qualification as may be necessary under the securities laws of
any state, or (ii) an opinion of counsel reasonably satisfactory to and at the
cost of the Company that such registration or qualification is not required.
The Company shall cause a certificate or certificates evidencing all or any of
the shares issued upon exercise of the conversion rights herein prior to said
registration or qualification of such shares to bear the following legend:
"The shares evidenced by this certificate have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of any state.
The shares may not be sold, assigned, transferred, pledged or hypothecated or
otherwise disposed of in the absence of an effective registration statement
under the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of any state, or an
opinion of counsel satisfactory to the Company that such registration or
qualification is not required."
IX. Transfer.
This Warrant shall be registered on the books of the Company which
shall be kept for that purpose, and shall be transferable in whole or in part
but only on such books by the Holder in person or by duly authorized attorney
with written notice substantially in the form of Exhibit B hereof, and only in
compliance with the preceding paragraph. The Company may issue appropriate
stop orders to its transfer agent to prevent a transfer in violation of the
preceding paragraph.
X. Replacement of Warrant.
At the request of the Holder and on production of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) if required by the
Company, upon delivery of an indemnity agreement, the Company, at Holder's
expense, will issue in lieu thereof a new Warrant of like tenor.
2
3
XI. Covenants of the Company.
The Company hereby makes the same covenants as set out in the
Investment Agreement, subject to the applicable limitations therein.
XII. Investment Covenant.
The Holder by its acceptance hereof covenants that this Warrant is,
and any stock issued hereunder will be, acquired for his own account for
investment purposes, and that the Holder will not distribute the same in
violation of any state or federal law or regulation.
XIII. Governing Law.
This Warrant shall be construed according to the laws of the State of
Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its President and to be attested by
its Secretary, as of this 23rd day of October, 1995.
XXXXXXX-XXXXXXX, INC.
Attest: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- ----------------------------
Xxxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxxx, President
3
4
Exhibit A
IRREVOCABLE SUBSCRIPTION
To: XxXxxxx-Xxxxxxx, Inc.
Gentlemen:
The undersigned hereby elects to exercise his rights under the attached
Warrant by purchasing ____________ shares of the Common Stock of your company,
and hereby irrevocably subscribes to such issue. The certificates for such
shares shall be issued in the name of
--------------------------------------------------------
(Name)
--------------------------------------------------------
(Address)
--------------------------------------------------------
(Taxpayer Number)
and delivered to:
--------------------------------------------------------
(Name)
--------------------------------------------------------
(Address)
The exercise price of $__________ is enclosed.
Date:
--------------------
Signed:
------------------------------------------------
(Name of Holder, Please Print)
------------------------------------------------
(Address)
------------------------------------------------
(Signature)
5
Exhibit B
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------
(Name)
------------------------------------------------------
(Address)
the attached Warrant together with all right, title and interest therein to
purchase _____________ shares of Common Stock in XxXxxxx-Xxxxxxx, Inc., to
which the Warrant relates, and does hereby irrevocably appoint ________________
________________________________________ attorney to transfer said Warrant on
the books of ______________________________, Inc., with full power of
substitution in the premises.
Dated:
--------------------------
----------------------------------
(Signature)
----------------------------------
(Name and Title)
----------------------------------
----------------------------------
(Address)
