EXHIBIT 4.15
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN AND WILL NOT BE, AS OF THE TIME OF ISSUANCE, REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW, AND
MAY NOT BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY EXEMPTION
THEREFROM UNDER SUCH ACT. THIS WARRANT AND SUCH SHARES MAY BE TRANSFERRED ONLY
IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS WARRANT.
PACIFIC AEROSPACE & ELECTRONICS, INC.
COMMON STOCK PURCHASE WARRANT
Expiring May 22, 2001
February 5, 1998
PACIFIC AEROSPACE & ELECTRONICS, INC., a Washington corporation (the
"Company"), for value received, hereby certifies that XXXXXX X. XXXXX UNIFIED
CREDIT TRUST ("Holder"), is entitled to purchase THIRTY-SEVEN THOUSAND FIVE
HUNDRED (37,500) shares of the Company's voting common stock, par value $.001
per share (the "Warrant Stock"), at the times and according to the terms set
forth in this Warrant.
The Company's predecessor, PCT Holdings, Inc. ("PCTH") issued a Common
Stock Purchase Warrant to Xxxxxx X. Xxxxx on May 22, 1996, which entitled the
holder to purchase 37,500 shares of PCTH's common stock for $4.80 per share (the
"PCTH Warrant"). As a result of the reincorporation merger of the Company and
PCTH on November 30, 1996, the right of the holder of the PCTH Warrant to
purchase shares of PCTH's common stock was converted automatically into the
right to purchase the same number of shares of the Company's common stock. This
Common Stock Purchase Warrant (the "Warrant") is otherwise in all respects the
same as the PCTH Warrant and is issued to replace the PCTH Warrant. Furthermore,
this Warrant is issued, pursuant to Section 8 of the PCTH Warrant, to evidence
the transfer of the PCTH Warrant from Xxxxxx X. Xxxxx, who is now deceased, to
the Holder. This Warrant supersedes and replaces the PCTH Warrant in its
entirety, and the PCTH Warrant shall from the date hereof be null and void.
1. Terms of Warrant. This Warrant is being issued by the Company as a fee
in connection with and pursuant to that certain Amended and Restated Promissory
Note of even date herewith (the "Promissory Note") made by PCTH and payable to
Holder. This Warrant shall be exercisable at any time after the date hereof. The
exercise price (the "Exercise Price") of this Warrant shall be $4.80 per share
of the Warrant Stock acquired upon any such exercise.
2. Exercise of Warrant. The holder of this Warrant may exercise it during
normal business hours on any business day after the date hereof and before 5:00
p.m., P.S.T., on May
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22, 2001, or if such date is a day on which federal or state chartered banking
institutions are authorized by law to close, then on the next succeeding day
which shall not be such a day, by surrendering this Warrant to the Company at
the Company's principal office, accompanied by an executed subscription
agreement in substantially the form annexed hereto as Exhibit "A" and by
payment, in cash or by certified or official bank check payable to the order of
the Company, or by any combination of such methods, in the amount obtained by
multiplying (a) the number of Warrant Stock designated in such subscription by
(b) the Exercise Price, whereupon such holder shall be entitled to receive the
number of duly authorized, validly issued, fully paid and nonassessable shares
of Warrant Stock as is indicated on the subscription.
3. Partial Exercise Allowed; Issuance of Substitute Warrant. This Warrant
is exercisable in whole or in part by Holder. In the event Holder exercises this
Warrant with respect to only a portion of the Warrant Stock that could be
acquired upon exercise, a replacement Warrant ("Replacement Warrant") with
identical terms except for a corresponding reduction of the number of shares of
Warrant Stock receivable upon exercise of the Replacement Warrant shall be
issued by the Company within three (3) business days after any such partial
exercise.
4. When Exercise Effective. The exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in Section 2, and at such time the person or persons in whose name or names any
certificate or certificates for shares of Warrant Stock shall be issued upon
such exercise shall be deemed for all corporate purposes to have become the
holder of record thereof.
5. Delivery of Stock Certificates. As soon as practicable after the
exercise of this Warrant, and in any event within five (5) business days
thereafter, 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
Holder or to the person or entity such holder may direct (and upon payment by
such holder of any applicable transfer taxes), a certificate or certificates for
the number of duly authorized, validly issued, fully paid and nonassessable
shares of Warrant Stock to which the holder or its designee shall be entitled
upon such exercise.
6. Adjustment of Warrant Stock Issuable Upon Exercise. If the Company at
any time or from time to time after the date of this Warrant but before
expiration effects a split or subdivision of the outstanding shares of its then
outstanding common stock into a greater number of shares of common stock, or if
the Company effects a reverse split of the outstanding shares of its common
stock into a lesser number of shares of common stock, (by reclassification or
otherwise than by payment of a dividend in common stock), then, and in each such
case, the number of shares called for on the face of this Warrant (or the face
of any replacement Warrant issued upon partial exercise) shall be adjusted
proportionally, and the exercise price with respect to such adjusted number of
shares also shall be adjusted proportionally.
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7. Reservation of Shares. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
the number of shares of common stock that would be issuable upon the exercise,
in whole, of this Warrant or any replacement Warrant. All such shares shall be
duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and nonassessable with no liability on the part of the holders
thereof.
8. Ownership, Transfer and Substitution of Warrant. The Company will treat
Holder as the owner and holder of this Warrant for all purposes, until the
Company receives notice to the contrary. This Warrant shall be transferable by
Holder, and the Company shall recognize on its books and records any lawful
transfer of this Warrant upon receipt of notice of such transfer by Holder. Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft of destruction of this Warrant, upon delivery of indemnity reasonably
satisfactory to the Company in form and amount or, in the case of any such
mutilation, upon surrender of such, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
9. No Rights or Liabilities as Stockholder. Nothing herein shall give or
shall be construed to give Holder any of the rights of a shareholder of the
Company including, without limitation, the right to vote on matters requiring
the vote of shareholders, the right to receive any dividend declared and payable
to the holders of common stock, and the right to a pro-rata distribution upon
the Company's dissolution.
10. Authorization; No Breach. The Company represents and warrants that (i)
the Company is duly organized, validly existing, and in good standing under the
laws of the State of Nevada, and has the requisite power and authority to issue
this Warrant and the Warrant Stock; (ii) the number of shares of Warrant Stock
issuable upon the entire exercise of this Warrant are presently authorized but
unissued; (iii) the issuance of this Warrant and the issuance of the Warrant
Stock issuable upon exercise of this Warrant have been authorized and approved
by all necessary corporate action; (iv) the execution, delivery and issuance of
this Warrant and the issuance of the Warrant Stock underlying this Warrant will
not violate any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on the Company or the provision or provisions of any agreement
to which the Company is a party or is subject, or by which any of the Company's
property is bound, or conflict with or constitute a material default thereunder,
or result in the creation or imposition of any lien pursuant to the terms of any
such agreement, or constitute a breach of any fiduciary duty owed by the Company
to any third party, or require the approval of any third party pursuant to any
contract, agreement, instrument, relationship or legal obligation to which the
Company is subject or to which any of its properties may be subject, except for
the approvals set forth on Exhibit A to the Promissory Note from the Company to
Holder of even date herewith; and (v) when issued, both this Warrant and the
Warrant Stock issuable upon exercise of this Warrant shall be duly and validly
issued, fully paid and nonassessable.
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11. Registration Right. If the Company shall determine to register any of
its common stock either for its own account or the account of a security holder
or holders, other than a registration relating solely to (i) employee benefit
plans, or (ii) registration on any registration form that does not permit
secondary sales, the Company will: (a) promptly give written notice of the
proposed registration to the holder of any Warrant Stock issued or issuable upon
the exercise of this Warrant (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under applicable
blue sky laws); and (b) include in such registration (and any related
qualification or other compliance filing under applicable blue sky laws), and in
any underwriting involved therein, all or any portion of the Warrant Stock then
issued or issuable upon exercise of this Warrant as specified in a written
request made by such holders within thirty (30) days after receipt of the
written notice from the Company described in clause (a) above, provided,
however, that if the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise such holders as part of the written notice described in clause (a) above.
In such event, such holders' rights to registration pursuant to this Section 11
shall be conditioned upon participation in such underwriting and the inclusion
of stock in the underwriting to the extent provided herein. Such holders and the
Company (and any other security holders proposing to distribute their securities
through such underwriting) shall enter into an underwriting agreement in
customary form with the representatives of the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provisions of this Section 11, if the representatives of the underwriter or
underwriters determine in good faith that marketing factors make it advisable to
impose a limitation on the number of secondary shares to be underwritten, the
number of such secondary shares, if any, that may be included in the
registration and underwriting on behalf of such holders, and any other security
holders proposing to distribute their securities of the Company through such
underwriting shall be allocated in proportion, as nearly as practicable, to the
respective amounts of securities that they had requested to be included in such
registration at the time of filing the registration statement. If such holders
disapprove of the terms of any such underwriting, they may elect to withdraw
therefrom by written notice to the Company and the representatives of the
underwriter or underwriters.
11.1 Lock-up Agreement. Notwithstanding any other provision of this
Section 11, in the event that (A) the Company shall file any registration
statement within one hundred twenty (120) calendar days after the date hereof,
and (B) Holder otherwise would have the right to include securities in such
registration under this Section 11, Holder hereby agrees that, notwithstanding
the inclusion of any shares beneficially owned by Holder in such registration,
Holder will not sell any such registered securities for a period of one hundred
eighty (180) calendar days from the effective date of such registration
statement. The Company agrees that, in such event, the Company will take all
action necessary to cause such registration statement to remain effective for a
period of at least ninety (90) calendar days after the date that Holder first
becomes able to sell any securities included in the registration in light of the
contractual restriction set forth in this Section 11.1 or until Holder has
informed the Company in writing that the distribution of Holder's securities
included in the registration has been completed, and shall prepare and file with
the Securities and Exchange Commission such amendments and supplements, if any,
to such registration statement and the prospectus used in connection
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therewith as may be necessary to keep such registration statement effective for
the period described in this Section 11.1.
12. Notices. All notices and other communications provided for herein shall
be delivered or mailed by first class mail, postage prepaid, addressed (a) if to
any holder of any Warrant or Warrant Stock, at the registered address of such
holder as set forth in the register kept at the principal office of the Company,
or (b) if to the Company, at its principal office, or to such other location as
the Company shall have furnished to each holder of any Warrants or Warrant Stock
in writing, provided that the exercise of any Warrants shall be effective only
in the manner provided in Section 2.
13. Miscellaneous. This Warrant embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof. There are no unwritten oral agreements between the
parties with respect to the subject matter hereof. This Warrant and any term
hereof may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. This Warrant shall be governed by the laws
of the State of Washington. The headings of this Warrant are inserted for
convenience only and shall not be deemed to constitute a part hereof.
PACIFIC AEROSPACE & ELECTRONICS, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, President
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Exhibit A
SUBSCRIPTION
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(To be executed by the holder of the Warrant to exercise the right to
purchase common stock evidenced by the Warrant)
To: Pacific Aerospace & Electronics, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
The undersigned hereby irrevocably subscribes for ___________shares of the
common stock, par value $.001 per share, of Pacific Aerospace & Electronics,
Inc., a Washington corporation, pursuant to and in accordance with the terms and
conditions of a Warrant dated February 5, 1998 (the "Warrant"), and tenders with
the Warrant and this Subscription Agreement payment of $______________ as
payment for the shares, and requests that a certificate for such shares be
issued in the name of the undersigned and be delivered to the undersigned at the
address stated below.
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The undersigned agrees that, upon issuance of the shares, the undersigned
will execute an investment letter in the form attached hereto as Exhibit 1, to
reflect that the shares are being acquired for investment purposes and not with
a view toward their resale or distribution to the public.
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Signed
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Dated
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Exhibit 1
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Pacific Aerospace & Electronics, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: ___________ shares of common stock, $.001 par value per
share, of Pacific Aerospace & Electronics, Inc. , a
Washington corporation (the "Shares")
Ladies and Gentlemen:
This letter is given to you in connection with the undersigned's
acquisition of the above described Shares.
1. The Shares are being acquired by the undersigned for investment for the
undersigned's own account and not on behalf of any other persons, and not with a
view to, or for resale or other distribution in connection with, any
distribution of all or any part of the Shares, unless pursuant to a transaction
exempt from the registration and prospectus delivery requirements of state and
federal securities laws.
2. You shall not be required to effect, permit or recognize any sale, offer
for sale, exchange, transfer, assignment or pledge of any or all of the Shares
unless they are registered under the Securities Act of 1933, and any applicable
state securities acts (collectively, the "Acts"), or unless you are furnished
with an attorney's opinion, reasonably acceptable to you, that such registration
is not required; and you shall be entitled to cause legends to this effect to be
endorsed on any certificates evidencing the Shares. Further, you shall have the
right to place a stop-transfer order with your Secretary or transfer agent
pursuant to which transfer of all or any portion of the Shares shall be
prohibited except upon a proper showing of compliance with this letter.
3. Except as to the undersigned's registration rights set forth in the
Common Stock Purchase Warrant dated February 5, 1998, the undersigned
understands that it must bear the economic risk of this investment for an
indefinite period of time because the Shares have not been registered under the
Acts, and consequently cannot be sold or otherwise transferred unless they are
subsequently registered under the Acts or exemptions from registration are
available.
Very truly yours,
Dated: _______________, 199__
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