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EXHIBIT 10.15
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT TO
THE EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT UNLESS SOLD PURSUANT TO RULE 144 PROMULGATED UNDER SAID ACT.
BOREALIS TECHNOLOGY CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is being issued to Oxbow LLC, a Wyoming limited liability
company (the "HOLDER") by Borealis Technology Corporation, a Delaware
corporation (the "COMPANY"). This Warrant entitles the Holder to subscribe for
and purchase up to fifty thousand (50,000) shares (the "MAXIMUM NUMBER OF
SHARES") of fully paid and nonassessable Common Stock, $0.001 par value, of the
Company (the "SHARES") (as adjusted pursuant to Section 4 hereof) at a price per
share equal to the last sales price of the Company's Common Stock, $0.001 par
value, as quoted by the Nasdaq SmallCap Market on the date of execution of this
Warrant (or if no such price is quoted for such date, for the next trading day
for which such a last sales price is quoted) (the "EXERCISE PRICE") (as adjusted
pursuant to Section 4 hereof) subject to the provisions and upon the terms and
conditions hereinafter set forth.
1. Method of Exercise; Payment; Issuance of New Warrant. This Warrant
may be exercised by the Holder hereof at any time on or prior to the fifth
anniversary of the date of execution of this Warrant. Exercise shall be made, in
whole or in part, by the surrender of this Warrant (with the notice of exercise
form attached hereto as Exhibit A duly executed) at the principal office of the
Company and by the payment to the Company of an amount equal to the Exercise
Price multiplied by the number of Shares being purchased, which amount may be
paid in cash or by check. In the event of any exercise of the rights represented
by this Warrant, certificates for the Shares so purchased shall be delivered to
the Holder hereof within a reasonable time and, unless this Warrant has been
fully exercised or expired, a new Warrant representing that portion of the
Shares, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the Holder within such reasonable time.
2. Net Exercise.
(a) In lieu of exercising this Warrant in accordance with
Section 1 above, the Holder may elect to receive Shares equal to the value of
this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election in which event the Company shall issue to the Holder a number of Shares
computed using the following formula:
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X = Y (A-B)
-------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares for which this Warrant is being exercised.
A = the fair market value of one Share on the date of delivery of
the notice pursuant to this Section 2.
B = Exercise Price (as adjusted to the date of such calculations).
(b) For purposes of this Section 2, the fair market value of
the Shares shall mean: The average of the closing bid and asked prices of the
Company's Common Stock quoted in the Over-The-Counter Market Summary or the last
sales price quoted on Nasdaq or any exchange on which the Shares are listed,
whichever is applicable, as published in The Wall Street Journal for the ten
(10) trading days ending five (5) trading days prior to the date of delivery of
the notice pursuant to this Section 2.
(c) If the Shares are not traded Over-The-Counter or on an
exchange, the fair market value of the Common Stock per share shall be the fair
market value as determined in good faith by the Company's Board of Directors.
3. Stock Fully Paid; Reservation of Shares. All of the Shares issuable
upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable, and
free from all taxes, liens and charges with respect to the issue thereof. During
the period within which the rights represented by this Warrant may be exercised,
the Company shall at all times have authorized and reserved for issuance
sufficient Shares to provide for the exercise of the rights represented by this
Warrant.
4. Adjustment of Exercise Price and Number of Shares. Subject to the
provisions of Section 1 hereof, the number and kind of securities purchasable
upon the exercise of this Warrant and the Exercise Price therefor shall be
subject to adjustment from time to time upon the occurrence of certain events,
as follows:
(a) In the event the Company shall at any time subdivide the
outstanding shares of Common Stock, or shall issue a stock dividend on its
outstanding Common Stock, the number of Shares issuable upon exercise of this
Warrant immediately prior to such subdivision or to the issuance of such stock
dividend shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event the Company shall at any time
combine the outstanding shares of Common Stock, the number of shares issuable
upon exercise of this Warrant immediately prior to such combination shall be
proportionately decreased, and the Exercise Price will be proportionately
increased, effective at the close of business on the date of such subdivision,
stock dividend or combination, as the case may be.
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(b) If the Company is recapitalized through the subdivision or
combination of its outstanding shares of Common Stock into a larger or smaller
number of shares, the number of shares of Common Stock for which this Warrant
may be exercised shall be increased or reduced in the same proportion as the
increase or decrease in the outstanding shares of Common Stock and the then
applicable Exercise Price shall be adjusted by multiplying such number of shares
of Common Stock purchasable upon exercise hereof immediately prior to such
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock purchasable immediately following such subdivision or
combination.
(c) Subject to Section 1 hereof, in the event of any
reorganization or reclassification of the outstanding Shares (other than a
change in par value, or from no par value to par value, or par value to no par
value, or as a result of a subdivision or combination) or in the event of any
consolidation or merger of the Company with another entity, at any time prior to
the expiration of this Warrant, the Holder shall have the right, but not the
obligation, upon exercise of this Warrant, to receive the same kind and number
of Shares and other securities, cash or other property as would have been
distributed to the Holder had the Holder exercised this Warrant immediately
prior to such reorganization, reclassification, consolidation or merger.
(d) Whenever the number of shares shall be adjusted as
required by the provisions of this Section 4, the Company forthwith shall file
in the custody of its secretary or an assistant secretary, at its principal
office, an Officer's Certificate showing the adjusted number of shares and
setting forth in reasonable detail the circumstances requiring the adjustment.
Each such Officer's Certificate shall be made available at all reasonable times
during reasonable hours for inspection by the Holder.
5. Fractional Shares. No fractional Shares will be issued in connection
with an exercise hereunder, but in lieu of such fractional Shares the Company
shall make a cash payment therefor upon the basis of the Exercise Price then in
effect.
6. Transfer, Exchange, Assignment or Loss of Warrant.
(a) This Warrant may not be assigned or transferred except as
provided in this Section 6 and in accordance with and subject to the provisions
of the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder (said Act and such Rules and Regulations being
hereinafter collectively referred to as the "ACT"). Any purported transfer or
assignment made other than in accordance with this Section 6 shall be null and
void and of no force and effect.
(b) Prior to any transfer of this Warrant, other than in an
offering registered under the Act, the Holder shall notify the Company of its
intention to effect such transfer, indicating the circumstances of the proposed
transfer and upon request furnish the Company with an opinion of counsel, in
form and substance reasonably satisfactory to counsel for the Company, to the
effect that the proposed transfer may be made without registration under the Act
or qualification under any applicable state securities law.
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(c) Each certificate for Shares or for any other security
issued or issuable upon exercise of this Warrant shall contain a legend
substantially to the following effect:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH
SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR IN
THE OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER, SUCH TRANSFER
MAY BE MADE PURSUANT TO RULE 144 OR REGISTRATION UNDER THE ACT
IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT."
(d) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the
Assignment Form attached hereto as Exhibit B duly executed. In such event the
Company shall, without charge for any issuance or transfer tax or other cost
incurred by the Company with respect to such transfer, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other warrants which carry the same rights upon presentation thereof at the
principal office of the Company together with a written notice signed by the
Holder thereof, specifying the names and denominations in which new warrants are
to be issued.
(e) Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant (provided that an
affidavit of the Holder shall be satisfactory for such purpose), and of
indemnity satisfactory to it (provided that if the Holder is the original Holder
of this Warrant, its own indemnification agreement shall under all circumstances
be satisfactory, and no bond shall be required), and upon surrender and
cancellation of this Warrant, if mutilated, the Company will execute and deliver
a new Warrant of like tenor and date and any such lost, stolen, or destroyed
Warrant shall thereupon become void.
7. Representations of the Company. The Company represents that all
corporate actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares pursuant hereto
and the performance of the Company's obligations hereunder were taken prior to
and are effective as of the effective date of this Warrant.
8. Rights of Shareholders. No holder of this Warrant shall be entitled,
as a Warrant holder, to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the holder of this Warrant, as such, any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value or change of stock to no par value, consideration, merger, conveyance,
or otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been
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exercised and the Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.
9. Notices, Etc. All notices and other communications from the Company
to the Holder shall be mailed by first class registered or certified mail,
postage prepaid, at such address as may have been furnished to the Company in
writing by the Holder.
10. Governing Law, Headings. This Warrant is being delivered in the
State of Nevada and shall be construed and enforced in accordance with and
governed by the laws of such State. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
Issued this July 1997.
BOREALIS TECHNOLOGY CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
ACCEPTED AND AGREED
By:____________________________
Name:__________________________
Title:_________________________
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EXHIBIT A
NOTICE OF EXERCISE
TO: Borealis Technology Corporation
000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
The undersigned hereby elects to purchase __________ shares of Common
Stock of Borealis Technology Corporation pursuant to the terms of the attached
Warrant,
[ ] and tenders herewith payment of the purchase price of such shares in
full; or
[ ] pursuant to the Net Exercise provisions of Section 2 of the attached
Warrant.
(check the applicable box)
Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
Name: ____________________________
Address: ____________________________
____________________________
____________________________
The undersigned hereby represents and warrants that the aforesaid
shares of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or, for resale in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares.
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, ______________________________ hereby sells,
assigns and transfers to _______________________________________________________
(Name and Address) the right to purchase Shares represented by this Warrant to
the extent of __________ shares of Common Stock and does hereby irrevocably
constitute and appoint ________________________________________________________,
attorney, to transfer the same on the books of the Company with full power of
substitution in the premises.
Dated: __________, ____
By:____________________________
Name:__________________________
Title:_________________________
