EXHIBIT 4.15
STOCK WARRANT
This Stock Warrant ("Warrant") is issued this 27th day of February, 1998, by
ORYX TECHNOLOGY CORP., a Delaware corporation (the "Company"), to KBK
Financial, Inc., a Delaware corporation (KBK Financial, Inc. and any
subsequent assignee or transferree hereof are hereinafter referred to
collectively as "Holder").
AGREEMENT
1. ISSUANCE OF WARRANT. For and in consideration of $500.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby grants to Holder the right to purchase 174,546
shares of the Company's $.001 par value common stock (the "Common Stock"). The
shares of Common Stock issuable on exercise of this Warrant are hereafter
referred to as the "Shares." This Warrant shall be exercisable at any time and
from time to time from the date hereof until February 27, 2001.
2. EXERCISE PRICE. The per share exercise price (the "Exercise Price") for which
all or any of the Shares may be purchased pursuant to the terms of this Warrant
shall be $1.145583.
3. EXERCISE.
(a) This Warrant may be exercised by the Holder hereof (but only on the
conditions hereinafter set forth) as to all or a portion of such Shares, upon
delivery of written notice of intent to exercise to the Company at the
following address: 00000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 Attn:
Xxxxxx Xxxxxxxx, or such other address as the Company shall designate by
written notice to the Holder hereof, together with this Warrant and payment
to the Company of the aggregate Exercise Price of the Shares so purchased.
The Exercise Price shall be payable, at the option of the Holder, (i) by
certified or cashier's check, (ii) by the surrender of that certain Term
Promissory Note of even date herewith payable by the Company to the order of
KBK Financial, Inc. in the stated principal amount of $1,000,000.00 (the
"Note") or portion thereof having an outstanding principal balance equal to
the aggregate Exercise Price or (iii) by the surrender of a portion of this
Warrant having a fair market value equal to the aggregate Exercise Price.
Upon exercise of this Warrant as aforesaid, the Company shall as promptly as
practicable, and in any event within fifteen (15) days thereafter, execute
and deliver to the Holder of this Warrant a certificate or certificates for
the total number of whole Shares for which this Warrant is being exercised in
such names and denominations as are requested by such Holder. If this Warrant
shall be exercised with respect to less than all of the Shares, the Holder
shall be entitled to receive a new Warrant covering the number of Shares in
respect of which new Warrant shall not have been exercised, which new Warrant
shall in all other respects be identical to this Warrant. The Company
covenants and agrees that it will pay when due
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any and all state and federal issue taxes which may be payable in respect of the
issuance of this Warrant or the issuance of any Shares upon exercise of this
Warrant.
(b) In lieu of exercising this Warrant as specified in Subsection 4(a)
hereof, Holder may from time to time convert this Warrant, in whole or in part,
into a number of Shares determined by dividing (i) the aggregate fair market
value of the Shares or other securities otherwise issuable upon exercise of this
Warrant minus the aggregate Exercise Price of such Shares by (ii) the fair
market value of one Share. The fair market value of the Shares shall be equal to
the average of the closing price for the Company's Common Stock for three (3)
trading days immediately prior to the date of determination.
4. REPRESENTATIONS, COVENANTS AND CONDITIONS. The above provisions are subject
to the following:
(a) Neither this Warrant nor the Shares have been registered under the
Securities Act of 1933, as amended ("Securities Act") or any state securities
laws ("Blue Sky Laws"). This Warrant has been acquired for investment purposes
and not with a view to distribution or resale and may not be pledged,
hypothecated, sold, made subject to a security interest, or otherwise
transferred without (i) an effective registration statement for such Warrant
under the Securities Act and such applicable Blue Sky Laws, or (ii) an opinion
of counsel which opinion and counsel shall be reasonably satisfactory to the
Company and its counsel that registration is not required under the Securities
Act or under any applicable Blue Sky Laws. Transfer of the Shares issued upon
the exercise of this Warrant shall be restricted in the same manner and to the
same extent as this Warrant and the certificates representing such Shares shall
bear substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (i) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER SUCH SECURITIES ACTS OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
compliance of the issuance of this Warrant and any shares of Common Stock issued
upon exercise hereof with applicable federal and state securities laws.
(b) The Company covenants and agrees that all Shares which may be issued
upon exercise of this Warrant will, upon issuance and payment therefor, be
legally and validly issued and outstanding, full paid and nonassessable, free
from all taxes, liens, charges and preemptive rights, if any, with respect
thereto or to the issuance thereof. The Company shall at all times reserve and
keep available for issuance upon the exercise of this Warrant such number of
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of this Warrant.
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(c) The Company represents and warrants to Holder the following:
(i) As of the date hereof, 13,124,000 shares of Common Stock are
issued and outstanding and 41,000 shares of preferred stock of the Company are
issued and outstanding;
(ii) As of the date hereof, the Company shall not have outstanding any
stock or securities convertible or exchangeable for any shares of its Common
Stock or containing any profit participation features, nor shall it have
outstanding any rights or options to subscribe for or to purchase its Common
Stock or any stock or securities convertible into or exchangeable for its Common
Stock or any stock appreciation rights or phantom stock plans;
(iii) The total number of shares issuable upon exercise of all
outstanding options and warrants for the Company's capital stock, does not
exceed 6,700,000;
(iv) As of the date hereof, the Company shall not be subject to any
obligation (contingent or otherwise) to repurchase, redeem, retire or otherwise
acquire any shares of its capital stock or any warrants, options or other rights
to acquire its capital stock;
(v) As of the date hereof, all of the outstanding shares or the
Company's capital stock shall be validly issued, fully paid and nonassessable.
There are not statutory or contractual preemptive rights, rights of first
refusal, anti-dilution rights or any similar rights, held by stockholders or
option holders of the Company, with respect to the issuance of this Warrant or
the issuance of the Common Stock upon exercise of this Warrant other than the
anti-dilution rights (1) with respect to the public warrants (the current total
number of shares issuable upon exercise of the public warrants not exceeding
2,300,000 shares of Common Stock) and (2) with respect to the warrants issued to
DAS Devices and X.X. Xxxxxxx (the current total number of shares issuable upon
exercise of such warrants not exceeding 635,000 shares of Common Stock).
5. TRANSFER OF WARRANT. Subject to the provisions of Section 4 hereof, this
Warrant may be transferred, in whole or in part, to any person or entity, by
presentation of this Warrant to the Company with written instructions for such
transfer. Upon such presentation for transfer, the Company shall promptly
execute and deliver a new Warrant or Warrants in the form hereof in the name of
the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
6. ADJUSTMENT UPON CHANGES IN STOCK.
(a) If all or any portion of this Warrant shall be exercised subsequent to
any stock split, stock dividend, recapitalization, combination of shares of the
Company, or other similar event, occurring after the date hereof, then the
Holder exercising this Warrant shall receive, for the aggregate price paid upon
such exercise, the aggregate number and class of shares which such Holder would
have received if this Warrant had been exercised immediately prior to such stock
split, stock dividend, recapitalization, combination of shares, or other similar
event. If any adjustment under this Subsection would create a fractional share
of Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the
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number of shares subject to this Warrant shall be the next higher number of
shares, rounding all fractions upward. Whenever there shall be an adjustment
pursuant to this Subsection, the Company shall forthwith notify the Holder or
Holders of this Warrant of such adjustment, setting forth in reasonable detail
the event requiring the adjustment and the method by which such adjustment was
calculated.
(b) If upon the closing of any Acquisition (as defined below) the successor
entity assumes the obligations of this Warrant, then this Warrant shall be
exercisable for the same securities, cash, and property as would be payable for
the Shares issuable upon exercise of the unexercised portion of this Warrant as
if such Shares were outstanding on the record date for the Acquisition and
subsequent closing. The Exercise Price shall be adjusted according. If upon the
closing of any Acquisition the successor entity does not assume the obligations
of this Warrant and Holder has not otherwise exercised this Warrant in full,
then the unexercised portion of this Warrant shall be deemed to have been
automatically converted pursuant to Section 3(b) and thereafter Holder shall
participate in the Acquisition on the same terms as other holders of the same
class of securities of the Company. For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation or merger of the Company where the holders of the Company's
securities before the transaction beneficially own less than 50% of the
outstanding voting of the surviving entity after the transaction.
7. REGISTRATION. The Company and the holders of the Shares agree that if at any
time the Company shall propose to file a registration statement with respect to
any of its Common Stock on a form suitable for a secondary offering, it will
give notice in writing to such effect to the registered holder(s) of the Shares
at least thirty (30) days prior to such filing, and, at the written request of
any such registered holder, made within ten (10) days after the receipt for such
notice, will include therein at the Company's cost and expense (including the
fees and expenses of counsel to such holder(s), but excluding underwriting,
discounts, and commissions and filing fees attributable to the Shares included
therein) such of the Shares as such holder(s) shall request; provided, however,
that if the offering being registered by the Company is underwritten and if the
representative of the underwriters certifies in writing that the inclusion
therein of the Shares would materially and adversely affect the sale of the
securities to be sold by the Company thereunder, then the Company shall be
required to include in the offering only that number of securities, including
the Shares, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among all selling shareholders according to the total
amount of securities entitled to be included therein owned by such selling
shareholder).
8. PROHIBITED SALES. Until (a) the Note is fully paid and satisfied, and (b) [*]
has no further commitment to make advances under the Note, neither Xxxxxx
Xxxxxxxx nor Xxxxxxxx Xxxxxxxxx (collectively, the "Shareholders") shall entered
into any transaction which would result in the sale or pledge of any Common
Stock owned by the Shareholders.
9. LIMITATION ON INTEREST. The Company and Holder intend to conform strictly to
the usury laws in force that apply to this transaction. Accordingly, all
agreements between the Company and Holder, whether now existing or hereafter
arising and whether written or oral, are hereby limited so
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that in no contingency, whether by reason of acceleration of the indebtedness
evidenced by the Note or otherwise, shall the interest (and all other sums that
are deemed to be interest) contracted for, charged or received by Holder with
respect to such indebtedness exceed the maximum rate of interest permitted to be
charged under applicable law (the "Maximum Rate"). The Company and the Holder
stipulate and represent that, as of the date hereof (the same being the date of
the granting of this Warrant to the Holder), the value of this Warrant, as
compensation for the use of money, is both contingent (in the sense that the
future realization of any value from the exercise of this Warrant is dependent
upon the occurrence of events beyond the control of the parties) and speculative
(in the sense that the amount, if any, which will be realized upon the exercise
of this Warrant is uncertain). The Company and the Holder stipulate and agree
that the terms and provisions contained in this Warrant are not intended to and
shall never be construed to create a contract to pay for the use, forbearance or
detention of money or, if so construed, to pay for the use, forbearance or
detention of money in an amount in excess of the Maximum Rate permitted to be
charged. Neither the Company nor any other party now or hereafter becoming
liable for payment of the Note shall ever be required to pay interest on or with
respect to the Note in an amount in excess of the Maximum Rate that lawfully may
be charged, and the provisions of this Section shall control over all other
provisions of this Agreement and the Note. If the difference between (i) the
Fair Market Value (determined as of the date hereof or such other date as
required by applicable law) of the Shares, and (ii) the Exercise Price with
respect to such Shares, could ever be or is deemed to constitute interest in an
amount that, when taken together with the interest otherwise contracted for,
charged or received with respect to the Note, would exceed the Maximum Rate, the
Exercise Price with respect to the Shares shall automatically be increased by an
amount equal to such excess, or if this Warrant has been exercised, the Holder
shall, at the option of Holder, either refund to the Company the amount of such
excess or credit the amount of such excess against the principal balance of the
Notes. All amounts not payable to Holder under this Warrant on account of the
foregoing limitations shall be retained by the Company, provided that, if at a
later date prior to the termination of this Warrant, Holder determines that a
greater amount could lawfully be paid to it, then the Company shall immediately
upon request of Holder, pay to Holder such greater amount up to an amount equal
to the aggregate of all amounts that were retained by the Company on account of
such limitation on the amount of interest that the Holder could receive on or
with respect to any notes under applicable law. All interest paid or agreed to
be paid to Holder shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of such indebtedness (including the period of
any renewal or extension thereof) so that the interest for such full period
shall not exceed the maximum Rate. The term "applicable law" as used in this
Agreement shall mean the laws of the State of Texas or laws of the United States
applicable to transactions in Texas, whichever laws allow the greater rate of
interest, as such laws now exist may be changed or amended or come into effect
in the future.
10. GOVERNING LAW: VENUE: SUBMISSION TO JURISDICTION. THIS WARRANT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
THIS WARRANT IS PERFORMABLE BY THE PARTIES IN TARRANT COUNTY, TEXAS. THE COMPANY
AND HOLDER EACH AGREE THAT TARRANT COUNTY, TEXAS SHALL BE THE EXCLUSIVE VENUE
FOR LITIGATION OF ANY DISPUTE OR CLAIM ARISING UNDER OR RELATING TO THIS
WARRANT, AND THAT SUCH COUNTY IS A CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH
DISPUTE OR CLAIM. THE COMPANY AND HOLDER EACH CONSENT TO THE
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PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TARRANT COUNTY,
TEXAS FOR THE LITIGATION OF ANY SUCH DISPUTE OR CLAIM. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. SEVERABILITY. If any provision(s) of this Warrant or the application thereof
to any person or circumstances shall be invalid or unenforceable to any extent,
the remainder of this Warrant and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
12. COUNTERPARTS. This Warrant may be executed in any number of counterparts and
by different parties to this Warrant in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Warrant.
13. WAIVER OF JURY TRIAL. THE COMPANY AND HOLDER EACH HEREBY IRREVOCABLY WAIVES,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY
OR ASSOCIATED HEREWITH.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above written.
ORYX TECHNOLOGY CORP., a Delaware corporation
By: /S/ XXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
KBK Financial, Inc., a Delaware corporation
By:
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and General Counsel
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The undersigned Shareholders join in the execution of this Warrant for the
purposes of acknowledging and agreeing to be bound by Section 8 hereof.
/S/ XXXXXXX XXXXXXXX
---------------------------------
Xxxxxxx Xxxxxxxx
/S/ XXXXXXXX XXXXXXXXX
---------------------------------
Xxxxxxxx Xxxxxxxxx
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