EXHIBIT 4.3.28
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THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER: (A) THE SECURITIES ACT OF 1933, AS AMENDED, IN
RELIANCE UPON THE EXEMPTIONS FROM REGISTRATION PROVIDED IN SECTIONS 3 AND 4 OF
SUCH ACT AND/OR REGULATIONS D PROMULGATED THEREUNDER; OR (B) ANY STATE
SECURITIES LAWS IN RELIANCE UPON APPLICABLE EXEMPTIONS THEREUNDER. THESE
SECURITIES MUST BE ACQUIRED FOR INVESTMENT ONLY FOR THE ACCOUNT OF THE INVESTOR
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE
SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION OR ITS
REPRESENTATIVES THAT SUCH SALE OR TRANSFER WOULD NOT VIOLATE APPLICABLE
SECURITIES LAWS OR REGULATIONS.
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Warrant No. To Purchase
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Shares of Common Stock
($0.001 par value)
CLASS "AS" WARRANT TO PURCHASE SHARES
OF COMMON STOCK OF
PROBEX CORP.
(A DELAWARE CORPORATION)
PURCHASE PRICE PER SHARE: $0.75
EXPIRATION DATE: 5:00 p.m., Dallas, Texas Time, On July 29, 2007
THIS CERTIFIES that, for value received,
is the registered owner and is entitled, subject to the terms and conditions of
this Warrant, until the Expiration Date, to purchase the number of shares of
common stock, $0.001 par value (the "Common Stock"), of Probex Corp. (the
"Corporation") set forth above from the Corporation at the purchase price set
forth above. The number of shares of Common Stock that may be received upon the
exercise of this Warrant and the price to be paid for each share of Common Stock
are subject to adjustment from time to time as hereinafter set forth.
1. Exercise of Warrant. Subject to the provisions hereof, this Warrant may be
exercised in whole or in part until the Expiration Date, by delivery of this
Warrant to the Corporation with the exercise form duly executed and payment of
the purchase price (in cash or by certified or bank cashier's check made payable
to the order of the Corporation) for each share purchased.
2. Corporation's Covenants as to Common Stock. Shares deliverable upon the
exercise of this Warrant shall, at delivery, be fully paid and non-assessable,
free from taxes, liens, and charges with respect to their purchase. The
Corporation shall at all times, subject to any required stockholder approvals
pursuant to Section 3.20 of that certain Intercreditor and Security Agreement,
dated as of March 29, 2002, by and among the Corporation and the parties
Class "AS" Warrant No. ___
Page 2
thereto, reserve and hold available sufficient shares of Common Stock to satisfy
all conversion and purchase rights of outstanding convertible securities,
options and warrants.
3. Method of Exercise; Fractional Shares. The purchase rights represented by
this Warrant are exercisable at the option of the registered owner in whole at
any time, or in part, from time to time, within the period specified above;
provided, however, that purchase rights are not exercisable with respect to a
fraction of a share of Common Stock. In lieu of issuing a fraction of a share
remaining after exercise of this Warrant as to all full shares covered hereby or
scrip, the Corporation shall pay therefor cash equal to the same fraction of the
then current Warrant purchase price per share. In case of the exercise of this
Warrant for less than all the shares purchasable, the Corporation shall cancel
this Warrant and execute and deliver a new Warrant of like tenor and date for
the balance of the shares purchasable hereunder.
4. Adjustment of Exercise Price. If after the date hereof and on or prior to the
date of the second anniversary of the payment in full of that certain promissory
note made by the Corporation to the original holder of this Warrant, dated as of
July 29, 2002, the Corporation shall (i) issue, (ii) enter into any binding
agreement to issue, or (iii) commence any public or private offering for the
issuance of, shares of Common Stock, warrants to purchase shares of Common Stock
or securities that are convertible into shares of Common Stock, in an aggregate
amount of at least 100,000 shares of Common Stock (excluding any options to
purchase Common Stock issued pursuant to any employee stock option plan of the
Corporation), and the issuance, exercise or conversion price (the "Issuance
Price") of such Common Stock is less than $0.75 per share, then the exercise
price per share pursuant to this Warrant shall be adjusted (and the Corporation
shall, after occurrence of any event requiring such adjustment, notify the
holder of this Warrant of the adjustment) so that the exercise price shall be
equal to the Issuance Price. For purposes of this section, a public or private
offering shall be deemed to have commenced if the there is substantial agreement
as to the material terms of such offering.
5. Redemption. The Corporation has no redemption rights pursuant to this
Warrant.
6. Limited Rights of Owner. This Warrant does not entitle the owner to any
voting rights or other rights as a shareholder of the Corporation, or to any
other rights whatsoever except the rights expressed herein. No dividends are
payable or will accrue on this Warrant or the shares purchasable hereunder
until, and except to the extent that, this Warrant is exercised.
7. Exchange for Other Denominations. This Warrant is exchangeable, on its
surrender by the registered owner to the Corporation, for new Warrants of like
tenor and date representing in the aggregate the right to purchase the number of
shares purchasable hereunder in denominations designated by the registered owner
at the time of surrender.
8. Transfer. Except as otherwise provided, this Warrant is transferable only on
the books of the Corporation by the registered owner in person or by attorney,
on surrender of this Warrant, properly endorsed. However, because this Warrant
has not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, this Warrant may not be
sold or transferred in the absence of an effective registration of it under the
Securities Act and all other applicable securities laws or an opinion of counsel
acceptable to the Corporation or its representatives that such sale or transfer
would not violate applicable securities laws or regulations. Any Common Stock
purchased upon exercise of this Warrant shall also be subject to the same
restrictions on transfer and will contain the same or similar transfer legend
found on the face of this Warrant.
Class "AS" Warrant No. ___
Page 3
9. Registration Rights. The terms of Section 7 of that certain Loan Agreement,
dated as of July 29, 2002, by and among the Corporation, the original holder
hereof and the other parties signatories thereto, are hereby incorporated by
reference as if set forth herein in full.
10. Recognition of Registered Owner. Prior to due presentment for registration
of transfer of this Warrant, the Corporation may treat the registered owner as
the person exclusively entitled to receive notices and otherwise to exercise
rights hereunder.
11. Effect of Stock Split, etc. If the Corporation, by stock dividend, split,
reverse split, reclassification of shares, or otherwise, changes as a whole the
outstanding Common Stock into a different number or class of shares, then:
(1) the number and class of shares so changed shall, for the purposes
of this Warrant, replace the shares outstanding immediately prior to the change;
and
(2) the Warrant purchase price in effect, and the number of shares
purchasable under this Warrant, immediately prior to the date upon which the
change becomes effective, shall be proportionately adjusted (the price to the
nearest cent).
12. Effect of Merger, etc. If the Corporation consolidates with or merges into
another corporation, the registered owner shall thereafter be entitled on
exercise to purchase, with respect to each share of Common Stock purchasable
hereunder immediately before the consolidation or merger becomes effective, the
securities or other consideration to which a holder of one share of Common Stock
is entitled in the consolidation or merger to assure that all the provisions of
this Warrant shall thereafter be applicable, as nearly as reasonable may be, to
any securities or other consideration so deliverable on exercise of this
Warrant. The Corporation shall not consolidate or merge unless, prior to
consummation, the successor corporation (if other than the Corporation) assumes
the obligations of this Section 12 by written instrument executed and mailed to
the registered owner at the address of the owner on the books of the
Corporation. A sale or lease of all or substantially all the assets of the
Corporation for consideration (apart from the assumption of obligations)
consisting primarily of securities is a consolidation or merger for the
foregoing purposes.
13. Notice of Adjustment. On the happening of an event requiring an adjustment
of the Warrant purchase price or shares purchasable hereunder, the Corporation
shall forthwith give written notice to the registered owner stating the adjusted
Warrant purchase price and the adjusted number and kind of securities or other
property purchasable hereunder resulting from the event and setting forth in
reasonable detail the method of calculation and the facts upon which the
calculation is based. The board of directors of the Corporation, acting in good
faith, shall determine the calculation. Irrespective of any adjustment or change
in the Warrant purchase price or the number of shares purchasable under this or
any other Warrant of like tenor, the Warrants theretofore and thereafter issued
may continue to express the Warrant purchase price per share and the number of
shares purchasable as were expressed in the Warrant when initially issued;
provided, however, the Corporation may, in its sole discretion, request the
holder of this Warrant to exchange this Warrant for a warrant of like tenor
reflecting such adjustment or change provided for in this Warrant, and the
holder of this Warrant agrees to cooperate with the Corporation to effect such
exchange.
14. Notice and Effect of Dissolution, etc. In case a voluntary or involuntary
dissolution, liquidation, or winding up of the Corporation (other than in
connection with a consolidation or merger covered by Section 12 above) is at any
time proposed, the Corporation shall give at least 10 days written notice to the
registered owner prior to the record date as of which holders of Common Stock
Class "AS" Warrant No. ___
Page 4
will be entitled to receive distributions as a result of the proposed
transaction. Such notice shall contain: (1) the date on which the transaction is
to take place; (2) the record date as of which holders of Common Stock will be
entitled to receive distributions as a result of the transaction; (3) a brief
description of the transaction; (4) a brief description of the distributions to
be made to holders of Common Stock as a result of the transaction; and (5) an
estimate of the fair value of the distributions. On the date of the transaction,
if it actually occurs, this Warrant and all rights hereunder shall terminate.
15. Method of Giving Notice; Extent Required. Notices shall be given by first
class mail, postage prepaid, addressed to the registered owner at the address of
the owner appearing in the records of the Corporation. No notice to warrant
holders is required except as specified in Sections 4, 9, 13 and 14.
16. Access to Information. The Corporation will provide an opportunity to any
registered owner of this Warrant to ask questions of management of the
Corporation and to obtain information to the extent the Corporation has made
such information publicly available prior to any exercise of the owner's rights
to purchase Common Stock under this Warrant. Requests for information and any
other questions concerning the business and affairs of the Corporation should be
directed to the Vice President of Investor Relations of the Corporation at its
main offices.
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Class "AS" Warrant No. ___
Page 5
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed and delivered by its duly authorized officer as of the 29th day of July
2002.
PROBEX CORP.
By: ________________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President
Class "AS" Warrant No. ___
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TRANSFER FORM
For value received, the undersigned hereby sells, assigns, and
transfers to
Name__________________________________
Address_________________________________
this Warrant and irrevocably appoints attorney (with full power of substitution)
to transfer this Warrant on the books of the Corporation.
Date:
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(Please sign exactly as name appears
on Warrant)
Taxpayer ID No. _____________________
In the presence of Signature guaranteed by
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Class "AS" Warrant No. ___
Page 7
EXERCISE FORM
The undersigned hereby: (1) irrevocably subscribes for ________________
shares of your Common Stock pursuant to this Warrant, and encloses payment of
$____________________ therefor; (2) requests that a certificate for the shares
be issued in the name of the undersigned and delivered to the undersigned at the
address below; and (3) if such number of shares is not all of the shares
purchasable hereunder, that a new Warrant of like tenor for the balance of the
remaining shares purchasable hereunder be issued in the name of the undersigned
and delivered to the undersigned at the address below.
Date:
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(Please sign exactly as name appears on
Warrant)
Address:_________________________________
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Taxpayer ID No.___________________________
