EXHIBIT 4.15
WARRANT TO PURCHASE
COMMON STOCK OF
XCEL MANAGEMENT, INC.
_______________________________________________
Dated: June 1, 1999
______________________________________________________________________________
NEITHER THE SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE; THEREFORE, THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF, IF ANY, MAY NOT BE SOLD OR TRANSFERRED
EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO THE CORPORATION OF AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION THAT REGISTRATION
IS NOT REQUIRED FOR SUCH SALE OR TRANSFER.
Hewlett-Packard/$0.50 per share.
Warrant to Purchase
200,000 Shares of
Common Stock, Subject to
Adjustment as herein provided
WARRANT TO PURCHASE COMMON STOCK
XCEL MANAGEMENT, INC.
Dated as of the 1/st/ day of June, 1999.
WHEREAS, this Warrant to Purchase Common Stock is being granted in exchange
for an equipment loan and other preferential payment rates with respect to the
acquisition of certain equipment; and
WHEREAS, the undersigned desires to acquire for investment purposes this
Warrant to Purchase Common Stock providing for the acquisition of up to 200,000
shares of common stock, $0.001 par value per share (the "Common Stock"), of XCEL
Management, Inc. (the "Company"), subject to adjustment as provided herein.
NOW, THEREFORE, for and in consideration of past service and of the mutual
covenants, representations, warranties and agreements contained herein, this is
to certify that:
1. The undersigned or its permitted and registered assigns ("Holder"), is
entitled to purchase from time to time, subject to the provisions and conditions
herein, not later than the termination of the Exercise Period of this Warrant to
Purchase Common Stock (this "Warrant") as set forth in Paragraph 4 below, an
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aggregate of Two Hundred Thousand (200,000) shares of Common Stock, at the
Exercise Price per share set forth in Paragraph 2(c) herein, and upon such
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purchase to receive a certificate or certificates representing such shares of
Common Stock. The number of shares of Common Stock to be received upon the
exercise of this Warrant may be adjusted from time to time as hereinafter set
forth.
2. Defined Terms. As used in this Warrant, the following capitalized terms
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shall have the meanings respectively assigned to them below, which meanings
shall be applicable equally to the singular and plural forms of the terms so
defined.
(a) "Business Day" shall mean any day except a Saturday, Sunday or
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other day on which commercial banks in the State of Texas are authorized or
required by law to close.
(b) "Exercise Period" means the period commencing on the date of this
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Warrant and terminating at 5:00 p.m., Tacoma, Washington time, on September
1, 2001 or, in the event that September 1, 2000 is not a Business Day, the
Business Day next following.
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(c) "Exercise Price" shall mean a strike price of $0.50 per
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share.
(d) "Holder" shall mean the Person(s) then registered as the
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owner of the Warrant or Warrant Securities, as the case may be, on the
books and records of the Company.
(e) "Person" shall mean any natural person, corporation, limited
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partnership, limited liability company, general partnership, joint
venture, association, company, or other organization, whether or not a
legal entity, and any government agency or political subdivision
thereof.
(f) "Warrant Securities" shall mean the shares of Common Stock
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(or other securities) of the Company purchasable or purchased from
time to time under this Warrant or acquired upon any transfer of any
such shares, together with all additional securities received in
payment of dividends or distributions on or splits of those securities
or received as a result of the adjustments provided for in Paragraph 6
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hereof.
3. Exercise of Warrant. Subject to and in accordance with the
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provisions and conditions hereof, this Warrant may be exercised from time to
time in whole or in part during the term of this Warrant as set forth in
Paragraph 5 hereof.
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4. Term of Warrant. The term of this Warrant shall commence on the
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date hereof and shall expire on the exercise in full of this Warrant by Holder
or at 5:00 p.m. Tacoma, Washington time on the expiration of the Exercise
Period.
5. Manner of Exercise. Holder may exercise this Warrant in whole or
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in part in accordance with the terms hereof by mailing or personally delivering
to the Company (i) this Warrant, (ii) a Notice of Exercise in the form of
Exhibit I hereto duly executed by Xxxxxx and (iii) payment of the Exercise Price
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per share, such payment to be in the form of cash, a certified or official bank
check made payable to the Company, or a wire transfer of funds to an account
designated by the Company, or any combination of the foregoing, together with
all federal and state excise taxes applicable upon such exercise. Upon receipt
by the Company of this Warrant, the Notice of Exercise and such payment, this
Warrant shall be deemed to have been exercised with respect to the number of
shares of Common Stock subject to such exercise and specified in the Notice of
Exercise, and Holder shall thereupon become the holder of record of the shares
of Common Stock issuable upon such exercise, notwithstanding the fact that the
stock transfer books of the Company may then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
Holder. As soon as practicable after any exercise, in whole or in part, of the
Warrant, and in any event within ten (10) Business Days thereafter, the Company
will deliver to Holder a stock certificate or certificates representing the
shares of Common Stock so purchased, with such certificate or certificates to be
in such name(s) and such denominations as Holder may specify in the Notice of
Exercise. If this Warrant is exercised for less than all of the shares of Common
Stock subject hereto, the Company shall, upon such exercise and surrender of
this Warrant for cancellation, promptly execute and deliver to Holder a new
Warrant of like tenor evidencing the right of Holder to purchase the balance of
shares of Common Stock purchasable
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hereunder.
6. Adjustment Provisions.
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(a) If the Company shall, during the term hereof, (i) declare a
dividend and make a distribution on the Common Stock payable in shares of Common
Stock, (ii) subdivide or combine its outstanding shares of Common Stock, (iii)
change the number of shares of Common Stock issuable upon exercise of this
Warrant by reclassification, exchange or substitution, or (iv) reorganize the
capital structure of the Company by merger, reorganization, consolidation or
sale of assets, then this Warrant shall, after the happening of any such event,
evidence the right to purchase the number of shares of Common Stock or other
securities that would have been received as a result of that change with respect
to the shares of Common Stock as if such shares had been purchased under this
Warrant immediately before occurrence of such event. Such adjustment shall be
made successively whenever any event listed above shall occur. Any adjustment
under this subparagraph (a) shall become effective at the close of business on
the date any such event occurs (the "Adjustment Date").
(b) If, during the term of this Warrant, the number of shares of
Common Stock of the Company is adjusted pursuant to subparagraph (a) above, then
the Exercise Price per share to be in effect after such Adjustment Date shall be
determined by multiplying the Exercise Price per share in effect immediately
prior to such Adjustment Date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding at the closing of business on the
Business Day immediately preceding such Adjustment Date and the denominator of
which shall be the number of shares of Common Stock (or the equivalent amount of
other securities) outstanding at the opening of business on the first Business
Day after the Adjustment Date.
(c) Notice of Adjustment. The Company shall give notice of each
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adjustment or readjustment of the number of shares of Common Stock or other
securities issuable upon exercise of this Warrant to Holder or of the Exercise
Price per share at the address set forth in Paragraph 17 hereof.
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7. Fractional Shares. No fractional shares or scrip representing
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fractional shares of Common Stock shall be issued in connection with the
exercise of this Warrant, but the Company shall pay, in lieu of any fractional
share, a cash payment on the basis of the Exercise Price per share of the Common
Stock to be acquired pursuant to such exercise for such fractional share.
8. Restrictions on Transfer. The undersigned represents and warrants that
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this Warrant, and the Warrant Securities acquired pursuant to the exercise of
this Warrant, are being purchased for his investment account without a view
towards the resale or distribution thereof in violation of applicable securities
laws. It is understood that in case of subsequent sale of such Warrant or the
Warrant Securities under certain circumstances, such sale might be deemed to
constitute a public distribution within the meaning of, and require registration
under, the provisions of the Securities Act of 1933, as amended (the "Act").
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(a) The undersigned acknowledges and agrees that unless and until the
Warrant and the Warrant Securities are registered under the Act, this
Warrant and the Warrant Securities shall be "restricted securities" for
purposes of Rule 144 under the Act. The undersigned shall, prior to any
transfer or disposition or attempted transfer or disposition of the Warrant
or the Warrant Securities give written notice to the Company of his
intention to effect such transfer or disposition and shall deliver to the
Company an opinion of legal counsel (such counsel and opinion to be
reasonably satisfactory to the Company) that the proposed transfer or
disposition of the Warrant or the Warrant Securities may be effected
without registration thereof under the Act and without taking any similar
action under any other applicable securities laws, in which case the
undersigned shall be entitled to transfer or dispose of the Warrant or the
Warrant Securities, as applicable, in accordance with the terms of the
notice delivered by such Holder to the Company. Until the Warrant
Securities are registered under the Act, each certificate evidencing the
Warrant Securities so transferred or disposed of (and each certificate
evidencing any untransferred Warrant Securities) shall bear the following
restrictive legend unless in the opinion of Company counsel such legend is
not required:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or any state securities laws. These shares may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Act or pursuant to an opinion of counsel delivered to the
Company that an exemption from such registration is
available for such sale and transfer."
(b) Until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder thereof as the absolute owner
thereof for all purposes, notwithstanding any notice to the contrary.
(c) The undersigned understands and acknowledges that: (i) while the
Company has an operating history, the Warrant and the Warrant Securities
involve a high degree of risk of loss of the entire investment, and there
is no assurance of any income from such investment; (ii) the Holder must
bear the economic risk of an investment in the Warrant and the Warrant
Securities for an indefinite period because the offer and sale of the
Warrant and the Warrant Securities have not been registered under the Act
or any state securities laws and are being offered and sold in reliance
upon exemptions provided under the Act and state securities laws for
transactions not involving any public offering and, therefore, cannot be
resold or transferred unless they are subsequently registered under the Act
and applicable state laws, or unless an exemption from such registration is
available; (iii) there may not be a public market for the Warrant or the
Warrant Securities in the future; (iv) the Holder is purchasing the Warrant
and the Warrant Securities for investment purposes only for the Holder's
account and not for the benefit of any other person or with any view toward
the resale or distribution thereof; and (v) the Holder has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else the Warrant or any of the Warrant
Securities which the Holder is hereby purchasing or any part
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thereof, and the Holder has no present plans to enter into any such
contract, undertaking, agreement or arrangement.
9. Stock to be Delivered upon Exercise. The Company will at all
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times keep available through the term of the Exercise Period, solely for
delivery upon the exercise of this Warrant, such number of the shares of Common
Stock or other securities as shall from time to time be sufficient to effect the
exercise of this Warrant.
10. Replacement of Warrant. Upon receipt of evidence reasonably
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satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver, in lieu
thereof, a new warrant of like tenor to Xxxxxx.
11. Specific Performance. The Company stipulates that the remedies at law
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available to the holder of this Warrant in the event of any default or
threatened default by it in the performance of or compliance with any of the
terms of the Agreement are not and will not be adequate, and that such terms may
be specifically enforced by a decree for the specific performance of any
agreement contained herein or by an injunction against a violation of any of the
terms hereof or otherwise.
12. Applicable Law. THIS WARRANT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CHOICE OF LAWS OF SUCH STATE.
13. Entire Agreement. This Warrant constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements and understandings relating to the subject matter
hereof. This Warrant and any of the terms 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.
14. Successors and Assigns. This Warrant shall be binding upon and inure
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to the benefit of the Company and the undersigned and their respective
successors and permitted assigns; provided, however, nothing herein shall be
construed to permit assignment of the Warrant except in accordance with the
provisions herein.
15. Severability. Every provision of this Warrant is intended to be
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severable. If any term or provision hereof (or portion thereof) is determined to
be illegal or unenforceable for any reason whatsoever, such illegality or
unenforceability shall not affect any other term or provision (or portion
thereof) of this Warrant.
16. Notices. All notices and other communications from the Company to the
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holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at the following address or at such other address as may
have been furnished to the Company in writing by such holder, or, until an
address is so furnished, to the address of the last holder of such Warrant
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who has so furnished an address to the Company:
If to the Company:
Xcel Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
If to Holder:
Hewlett-Packard Company
_________________
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IN WITNESS WHEREOF, this Warrant has been executed by XCEL MANAGEMENT,
INC., by its duly authorized officers, as of the date first above written.
XCEL MANAGEMENT, INC.
By: ___________________________________
Name: __________________________________
Title: _________________________________
The terms and provisions of the Warrant are accepted and agreed to by
the undersigned effective as of the 1st day of June, 1999.
HEWLETT-PACKARD COMPANY
By: ___________________________________
Name: __________________________________
Title: _________________________________
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EXHIBIT "I"
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NOTICE OF EXERCISE
(To be executed by Xxxxxx to exercise the
Warrant in whole or in part)
Xcel Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Warrant to Purchase Common Stock dated June 1, 1999 by and between the
Company and Hewlett-Packard Company (the "Warrant")
Dear Sir or Madam:
The undersigned holder irrevocably elects to exercise the Warrant of Xcel
Management, Inc. to purchase ____________ shares of Common Stock of Xcel
Management, Inc. (the "Company") subject to the Warrant, and hereby makes
payment of the amount of $________ in the manner described below, representing
the Exercise Price per share of Common Stock multiplied by the number of shares
of Common Stock to be purchased pursuant to this exercise.
By:______________________________
$__________cash
$__________certified or bank cashier's check
$__________wire transfer
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