Exhibit 10.156
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("FEDERAL ACT") OR THE FLORIDA SECURITIES AND INVESTOR
PROTECTION ACT, AS AMENDED ("FLORIDA ACT"), AND HAVE NOT BEEN
REGISTERED UNDER ANY OTHER STATE SECURITIES LAW. THIS WARRANT HAS BEEN,
AND ANY SHARES ISSUED UPON EXERCISE OF THIS WARRANT WILL BE, ACQUIRED
FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION STATEMENT
WITH RESPECT TO THIS WARRANT AND THE SHARES FOR WHICH THIS WARRANT IS
EXERCISABLE IS EFFECTIVE UNDER THE FEDERAL ACT, THE FLORIDA ACT, AND
ANY OTHER APPLICABLE STATE SECURITIES LAWS, OR SUCH REGISTRATION IS NOT
REQUIRED.
DISPLAY TECHNOLOGIES, INC.
STOCK PURCHASE WARRANT
Warrant to Purchase January 17, 2001
up to 2,143,000 shares of
Common Stock
THIS CERTIFIES that, for value received, XXXXXXX XXXXX CAPITAL
PARTNERS, L.P., or its registered and permitted assigns, is entitled to
subscribe for and purchase from DISPLAY TECHNOLOGIES, INC., a Nevada corporation
(the "CORPORATION"), at a price of $0.125 per share, subject to adjustment
pursuant to SECTION 3 below, (the "EXERCISE PRICE") at any time after the date
hereof but prior to the fifth anniversary of the date hereof 2,143,000 shares
(subject to adjustment pursuant to SECTION 2 below) of fully paid and
nonassessable Common Stock, $0.001 par value per share, of the Corporation (the
"COMMON STOCK"), subject to the provisions and upon the terms and conditions
hereinafter set forth. This Warrant and any Warrant or Warrants subsequently
issued upon exchange or transfer hereof are hereinafter collectively called the
"WARRANT."
1. EXERCISE OF WARRANT. The rights represented by this Warrant may be
exercised by the holder hereof, in whole at any time or in part from time to
time, but not as to a fractional share of Common Stock, by the surrender of this
Warrant (properly endorsed) at the office of the Corporation shown in SECTION 13
hereof, and by payment to the Corporation of the Exercise Price in cash, by
certified or official bank check or by wire transfer, for each share being
purchased. In lieu of payment of cash, the holder hereof may satisfy the
Exercise Price of shares being acquired hereunder by surrender of the right to
purchase a number of shares of Common Stock hereunder (the "SURRENDERED SHARES")
whose value, based on the Closing Price on the day prior to such exercise,
exceeds the aggregate Exercise Price of the Surrendered Shares by an amount
equal to the aggregate Exercise Price of the shares with respect to which this
Warrant is being exercised. In the event of any exercise of the rights
represented by this Warrant, a certificate or certificates for the shares of
Common Stock so purchased, registered in the name of the holder hereof, shall be
delivered to the holder hereof within two days, after the rights represented by
this Warrant shall have been so exercised and, unless this Warrant has expired,
a new Warrant representing the number of shares (except a remaining fractional
share), if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof within such time. The person
in whose name any certificate for shares of Common Stock is issued upon exercise
of this Warrant shall for all purposes be deemed to have become the holder of
record of such shares on the date on which the Warrant was surrendered and
payment of the Exercise Price was made, except that, if the date of such
surrender and payment is a date on which the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the opening of business on the next succeeding date on which the
stock transfer books are open. As used in this Warrant, "CLOSING PRICE" means
the closing sale price of the Common Stock on the NASDAQ National Market, or the
principal market or exchange on which the Common Stock is then traded, for the
specified trading day, or if the Common Stock is not so traded, the value per
share determined by the Board of Directors of the Corporation acting in good
faith.
2. ADJUSTMENT OF NUMBER OF SHARES SUBJECT TO WARRANT. Upon any
adjustment of the Exercise Price as provided in SECTION 3 hereof, the holder of
this Warrant shall thereafter be entitled to purchase, at the Exercise Price, as
adjusted, the number of shares (calculated to the nearest tenth of a share)
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of shares purchasable hereunder immediately prior to
such adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
3. ADJUSTMENT OF EXERCISE PRICE. (a) If and whenever the Corporation
shall issue, sell, distribute or otherwise transfer any shares of its Common
Stock (including treasury shares), other than as the result of exercises of
options, warrants or conversion rights outstanding on the date hereof, for a
consideration per share less than the Exercise Price in effect immediately prior
to the time of such issue, sale, or transfer then, upon such event the Exercise
Price shall be reduced to the price determined by dividing (i) an amount equal
to the sum of (x) the number of shares of Common Stock outstanding immediately
prior to such event (including as outstanding all shares of Common Stock
issuable upon conversion of convertible securities of the Corporation, except
for Series A-1 Preferred Stock issued pursuant to the Agreement to Provide
Guarantee dated the date hereof (the "GUARANTEE AGREEMENT"), and issuable upon
the exercise of options and warrants of the Corporation, except for this Warrant
and other warrants issued pursuant to the Guarantee Agreement and the Securities
Purchase Agreement dated July 30, 1999 (the "PURCHASE AGREEMENT")) multiplied by
the then existing Exercise Price and (y) the consideration, if any, received by
the Corporation upon such event, by (ii) the total number of shares of Common
Stock outstanding immediately after such event (including as outstanding all
shares of Common Stock issuable upon conversion of convertible securities of the
Corporation, except for Series A-1 Preferred Stock issued pursuant to the
Guarantee Agreement, and issuable upon the exercise of options and warrants of
the Corporation, except for this Warrant and other
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warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement,
provided that, for this purpose, in computing the number of shares of Common
Stock issuable upon conversion of convertible securities or exercise of warrants
or options, any adjustments in the conversion price of such convertible
securities or in the exercise price of such warrants or options resulting from
the transaction which gave rise to the adjustment in the Exercise Price being
calculated shall be taken into account).
For purposes of this SECTION 3(A), the following paragraphs (1) to (6),
inclusive, shall also be applicable:
(1) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor
after deducting therefrom any discounts, commissions, fees, or other
expenses allowed, paid, or incurred by the Corporation for any
underwriting or placement or otherwise in connection with the issuance
and sale thereof.
(2) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors, irrespective of any
accounting treatment.
(3) In the case of the issuance of (x) options or warrants to
purchase or rights to subscribe for Common Stock, (y) securities by
their terms convertible into or exchangeable for Common Stock or (z)
options or warrants to purchase or rights to subscribe for such
convertible or exchangeable securities:
(A) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options or warrants to
purchase or rights to subscribe for Common Stock shall be
deemed to have been issued at the time such options, warrants,
or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in
subdivisions (1) and (2) above), if any, received by the
Corporation upon the issuance of such options, warrants, or
rights plus the minimum purchase price provided in such
options, warrants, or rights for the Common Stock covered
thereby;
(B) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities or upon the
exercise of options or warrants to purchase or rights to
subscribe for such convertible or exchangeable securities and
subsequent conversion or exchange thereof shall be deemed to
have been issued at the time such securities were issued or
such options, warrants, or rights were issued and for a
consideration equal to the consideration received by the
Corporation for any such securities and related options,
warrants, or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the additional
consideration, if any, to be received by the Corporation upon
the conversion or exchange of such securities or the exercise
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of any related options, warrants, or rights (the consideration
in each case to be determined in the manner provided in
subdivisions (1) and (2) above); and
(C) on any change in the number of shares of Common
Stock deliverable upon exercise of any such options, warrants,
or rights or conversions of or exchange for such convertible
or exchangeable securities or any change in the consideration
to be received by the Corporation upon the exercise of any
such options, warrants, or rights or conversions of or
exchange for such convertible or exchangeable securities, the
Exercise Price shall forthwith be readjusted to the Exercise
Price that would have applied had the adjustment (made upon
the issuance of such options, rights, or securities not
converted prior to such change or options or rights related to
such securities not converted prior to such change) been made
upon the basis of such change.
(4) In the case of issuance of stock appreciation rights,
phantom stock options, or any other contractual arrangements ("SAR'S")
that provide payments or benefits related to the value of securities
("BASE SECURITIES") of the Company, the equivalent number of Base
Securities shall be deemed to be issued and outstanding, except that
such Base Securities shall not be deemed to be outstanding when
calculating an adjustment to the Exercise Price otherwise required
hereunder as a result of the future issuance of other securities. The
issuance price of any Base Security treated as issued pursuant to this
subdivision (4) shall be deemed to be the base value of the Base
Security established in the SAR for purposes of calculating payments
due under the SAR as the result of appreciation of the Base Security.
For example, if an employee is granted the right to receive cash equal
to the future value of a specified number of shares of Common Stock in
excess of $3.00 per share, for the purposes of this SECTION 3 such
shares of Common Stock would be deemed to be issued at $3.00 per share.
(5) In the case of any future contingent agreement to issue
securities, the securities shall be deemed to be outstanding at the
time such agreement is entered into (except that such securities shall
not be deemed to be outstanding when calculating an adjustment to the
Exercise Price otherwise required hereunder as a result of the future
issuance of other securities). The sale price of such securities and
the sale price of any securities actually issued at the time of such
agreement shall be determined for purposes of this SECTION 3 by
dividing the sum of the number of securities actually issued and the
securities issuable upon satisfaction of the contingency by the total
consideration received by the Corporation in connection with such
agreement. If the number of securities contingently issuable is not
determinable until the contingency occurs, the maximum number of
securities issuable upon such occurrence shall be deemed issued at the
time of such agreement. If the maximum number of securities is not
determinable until the contingency occurs, then upon occurrence of the
contingency all securities issued pursuant to the agreement shall be
deemed to have been issued at the time the agreement was entered into
for the total consideration
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received by the Corporation pursuant to the agreement and, if such
consideration per share of Common Stock is less than the Exercise Price
at the time of such agreement, a retroactive adjustment to the Exercise
Price shall be made.
(6) The Corporation is a party to that certain Agreement and
Plan of Merger and Reorganization dated as of July 1, 1999 (the
"XXXXXXXX AGREEMENT") by and among the Corporation, Xxxxxxxx
Acquisitions Corp., Xxxxxxxx Sign Group and the shareholders of
Xxxxxxxx Sign Group (the "XXXXXXXX SHAREHOLDERS"). The issuance to the
Xxxxxxxx Shareholders of (i) 415,000 shares of Common Stock pursuant to
Section 1.4(a)(ii) of the Xxxxxxxx Agreement and (ii) up to 285,000
shares of Common Stock pursuant to Section 1.9(a), (b) and (c) of the
Xxxxxxxx Agreement shall not give rise to an adjustment of the Exercise
Price under Section 3 hereof; provided, however, if the Corporation
issues additional shares of Common Stock to the Xxxxxxxx Shareholders
under Section 1.4(c) or pays additional consideration to the Xxxxxxxx
Shareholders under Section 1.9(d) of the Xxxxxxxx Agreement (in shares
of Common Stock), the issuance of shares of Common Stock under Section
1.4(c) and the issuance of shares of Common Stock and the payment of
consideration (in shares of Common Stock or otherwise) under Section
1.9(d) shall be considered to be events which may give rise to an
adjustment of the Exercise Price under Section 3, as follows:
(A) In the case of the issuance of additional shares of Common
Stock under Section 1.4(c) of the Xxxxxxxx Agreement, each share of
Common Stock issued under Section 1.4(c) of the Xxxxxxxx Agreement
shall be considered issued for the Average Trading Price (as defined in
the Xxxxxxxx Agreement) of the Common Stock for the last 31 calendar
days of the Measuring Period (as defined in the Xxxxxxxx Agreement).
(B) In the case of the payment of additional shares of Common
Stock under Section 1.9(d) of the Xxxxxxxx Agreement, each share of
Common Stock issued under Section 1.9(d) of the Xxxxxxxx Agreement
shall be considered issued for the Average Trading Price (as defined in
the Xxxxxxxx Agreement) during the last 31 days of the Contingent
Measuring Period (as defined in the Xxxxxxxx Agreement).
(b) If, at any time, the number of shares of Common Stock outstanding
is increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then, following the record
date fixed for the determination of holders of Common Stock entitled to receive
such stock dividend, subdivision, or split-up, the Exercise Price shall be
proportionately decreased so that the number of shares of Common Stock issuable
on exercise of this Warrant pursuant to SECTION 2 above shall be increased in
proportion to such increase in outstanding shares.
(c) If, at any time, the number of shares of Common Stock outstanding
is decreased by a combination of the outstanding shares of Common Stock, then,
following the record date for such combination, the Exercise Price shall be
appropriately increased so that
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the number of shares of Common Stock issuable on exercise of this Warrant
pursuant to SECTION 2 above shall be decreased in proportion to such decrease in
outstanding shares.
(d) If, at any time, the Corporation shall fix a record date for the
making of a dividend or distribution to the holders of its Common Stock of
assets (other than regular cash dividends out of earned surplus), evidences of
its indebtedness, subscription rights, or warrants, then in each such case the
Exercise Price shall be reduced to the amount determined by multiplying (i) the
Exercise Price in effect immediately prior to such record date by (ii) a
fraction, of which the numerator shall be the total number of outstanding shares
of Common Stock (including as outstanding all shares of Common Stock issuable
upon conversion of convertible securities of the Corporation, except for Series
A-1 Convertible Preferred Stock issued pursuant to the Guarantee Agreement, and
issuable upon the exercise of warrants, except for this Warrant and other
warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement,
and options of the Corporation) multiplied by the current Exercise Price, less
the fair market value (as determined in good faith by the Company's Board of
Directors) of the portion of the assets or evidences of indebtedness to be
distributed or of such subscription rights or warrants, and of which the
denominator shall be the total number of outstanding shares of Common Stock on
such record date (including as outstanding all shares of Common Stock issuable
upon conversion of convertible securities of the Corporation, except for Series
A-1 Convertible Preferred Stock issued pursuant to the Guarantee Agreement, and
issuable upon the exercise of warrants, except for this Warrant and other
warrants issued pursuant to the Guarantee Agreement and the Purchase Agreement,
and options of the Corporation) multiplied by the current Exercise Price. Such
adjustment shall be made successively whenever such a record date is fixed and
shall become effective immediately after the record date for the determination
of shareholders entitled to receive the distribution.
(e) Whenever the Exercise Price shall be adjusted as provided in this
SECTION 3, the Corporation shall forthwith deliver to the holder hereof a
statement, signed by its chief financial officer, showing in detail the facts
requiring such adjustment and the Exercise Price and number of shares of Common
Stock subject hereto, such statement to be sent by first-class certified mail,
return receipt requested, postage prepaid.
4. STOCK TO BE RESERVED. The Corporation will at all times reserve and
keep available out of its authorized Common Stock or its treasury shares, solely
for the purpose of issue upon the exercise of this Warrant as herein provided,
such number of shares of Common Stock as shall then be issuable upon the
exercise of this Warrant. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly and validly issued and fully paid
and nonassessable and free from all taxes (other than income taxes and other
taxes on the holder), liens, and charges with respect to the issue thereof. The
Corporation will take all such action as may be reasonably necessary to ensure
that all such shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirements, of any securities exchange
or market upon which the Common Stock of the Corporation may be listed or
traded. The Corporation has not granted
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and will not grant any right of first refusal with respect to shares issuable
upon exercise of this Warrant, and there are not preemptive rights associated
with such shares.
5. ISSUE TAX. The issuance of certificates for shares of Common Stock
upon exercise of this Warrant shall be made without charge to the holder for any
issuance tax in respect thereof provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
holder.
6. CLOSING OF BOOKS. The Corporation will at no time close its transfer
books against the transfer of the shares of Common Stock issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant.
7. CONSOLIDATION, MERGER, OR SALE. If at any time the holders of Common
Stock shall be entitled to receive stock, securities, or assets with respect to
or in exchange for Common Stock by reason of any capital reorganization or
reclassification of the capital stock of the Corporation or any consolidation or
merger of the Corporation with another corporation, the sale of all or
substantially all of the Corporation's assets to another corporation or
otherwise (a "SIGNIFICANT TRANSACTION") and this Warrant has not expired as of
the effective date of such Significant Transaction then, as a condition of such
Significant Transaction or other transaction, lawful and adequate provisions
shall be made whereby the holder shall thereafter have the right to purchase
upon the basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock of the Corporation immediately theretofore
purchasable upon the exercise of this Warrant, such shares of stock, securities,
or assets (including cash) as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such stock immediately theretofore purchasable had such
Significant Transaction or other transaction not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of holder to the end that the provisions hereof shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities,
or assets thereafter deliverable upon the exercise of this Warrant (including an
immediate adjustment, by reason of such Significant Transaction or other
transaction, of the Exercise Price to the value for the Common Stock reflected
by the terms of such Significant Transaction or other transaction if the value
so reflected is less than the Exercise Price). To the extent that this Warrant
has not expired, the Corporation will not effect any such Significant
Transaction or other transaction unless prior to the consummation thereof the
successor corporation (if other than the Corporation) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed or delivered to the holder of this
Warrant in accordance with SECTION 13 below, the obligation to deliver to holder
such shares of stock, securities, or assets as, in accordance with the foregoing
provisions, holder may be entitled to receive.
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8. NOTICES OF RECORD DATES. In the event of:
(a) any taking by the Corporation of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase, or otherwise acquire any shares of stock of any class
or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Corporation, any reclassification
or recapitalization of the capital stock of the Corporation, or any transfer of
all or substantially all the assets of the Corporation to, or consolidation or
merger of the Corporation with or into, any other corporation, or
(c) any voluntary or involuntary dissolution, liquidation, or
winding-up of the Corporation,
then and in each such event the Corporation will give notice to the holder of
this Warrant specifying (i) the date on which any such record is to be taken for
the purpose of such dividend, distribution, or right and stating the amount and
character of such dividend, distribution, or right, and (ii) the date on which
any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation, or winding-up is expected to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock will be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation, or winding-up. Such notice shall be given at least 10
days and not more than 90 days prior to the date therein specified, and such
notice shall state that the action in question or the record date is subject to
the effectiveness of a registration statement under the Securities Act of 1933,
as amended, or to a favorable vote of stockholders, if either is required.
9. NO STOCKHOLDER RIGHTS OR LIABILITIES. This Warrant shall not entitle
the holder to any voting rights or other rights as a stockholder of the
Corporation. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase shares of Common Stock, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise price or as a shareholder of the
Corporation, whether such liability is asserted by the Corporation or by
creditors of the Corporation.
10. TRANSFERABILITY. The holder of this Warrant may transfer this
Warrant and the rights represented thereby, in whole or in part, at any time
prior to the applicable expiration date set forth in SECTION 1 above, without
the prior written consent of the Corporation or any other party; provided that
any transfer may only be made in compliance with federal and applicable state
securities laws or exemptions therefrom. No transfer of this Warrant shall be
effective unless and until registered on the books of the Corporation maintained
for such purpose, and the Corporation may treat the registered holders as the
absolute owner of this Warrant for all purposes and the person entitled to
exercise the rights represented hereby
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until such a transfer is so registered. Any transferee of this Warrant, by its
acceptance thereof, agrees to be bound by all of the terms and conditions of
this Warrant. The provisions of this SECTION 10 shall not apply to Common Stock
issued upon exercise of this Warrant.
11. INVESTMENT REPRESENTATION AND LEGEND. The holder, by acceptance of
this Warrant, represents and warrants to the Corporation that it is acquiring
the Warrant and will acquire the shares of Common Stock (or other securities)
issuable upon the exercise hereof for investment purposes only and not with a
view toward the distribution thereof in violation of applicable securities laws.
The holder, by acceptance of this Warrant, agrees that the Corporation may affix
a legend to certificates for shares of Common Stock issued upon exercise of this
Warrant substantially similar to the legend set forth in the Investors' Rights
Agreement dated the date hereof. The holder hereof shall have the right to
registration under the Securities Act of 1933 of the shares of Common Stock
issued upon exercise of this Warrant pursuant to the Investors' Rights
Agreements.
12. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated, or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may in its discretion reasonably impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Corporation, whether or not the allegedly lost,
stolen, mutilated, or destroyed Warrant shall be at any time enforceable by
anyone other than the holder of the new Warrant.
13. NOTICES. All notices, requests, and other communications required
or permitted to be given or delivered hereunder shall be in writing, and shall
be delivered, or shall be sent by certified or registered mail, postage prepaid
and addressed, return receipt requested, if to the holder at:
Xxxxxxx Xxxxx Capital Partners, L.P.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
and, if to the Corporation, at:
Display Technologies, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
or at such other address as shall be furnished to either party by notice from
the other.
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IN WITNESS WHEREOF, the Corporation has executed this Warrant under
seal on and as of the day and year first above written.
DISPLAY TECHNOLOGIES, INC.
By: /s/ J. Xxxxxxx Xxxxxxxx
----------------------------------
Its: President
---------------------------------
Attest: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Its: Secretary
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[CORPORATE SEAL]
