EXHIBIT 4.6
"The securities represented by this Certificate have not been registered under
the Securities Act of 1933 or applicable state securities laws. These securities
have been acquired for investment and not with a view to distribution or resale,
and may not be sold, mortgaged, pledged, hypothecated or otherwise transferred
without an effective registration statement for such securities under the
Securities Act of 1933, or unless an exemption from registration under such Act
is available."
WARRANT AGREEMENT
International Electronics, Inc. (the "Company"), a Massachusetts corporation,
offers _____________________ ("_________"), subject to the terms and conditions
set forth below, __________ shares from the Company fully paid and nonassessable
shares of Common Stock $.01 par value, of the Company at a purchase price of
__________________________($_____) per share (the "Purchase Price"), at any time
or from time to time, subject to vesting provisions, as defined below, on or
after the Issue Date, as defined below, and before 5:00 p.m., Boston time, on
the Expiration Date, as defined below (the "Exercise Period"), the number of
shares purchasable upon exercise being subject to adjustment as set forth
herein. The Company has determined that the fair market value of the warrants at
the date of issue is $_____ per warrant and must be paid in full by
_____________.
This instrument is referred to herein as this "Warrant." All references herein
to "Warrants" mean, as the context may require, this Warrant or the instrument
issued in substitution for this Warrant as provided in Section 7.1 hereof.
1. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
(a) "Company" includes any corporation which shall succeed to or assume
the obligations of the Company hereunder;
(b) "Common Stock" includes the Company's Common Stock $.01 par value per
share, as authorized on the Issue Date, and any other securities into which or
for which any of the shares of Common Stock, may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
(c) The "Expiration Date" shall mean the 10th anniversary of the Issue
Date.
(d) "Issue Date" shall mean _____________, ______.
(e) "Other Securities" shall mean any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or otherwise)
which the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities.
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(f) "Shares of Common Stock" shall mean those shares of the Company's
Common Stock that may be issued upon exercise of this Warrant, and any other
securities of the Company issued in exchange for or replacement of such shares.
(g) "Vesting" will occur ____________________________. In the event the
Company sells in excess of 50% of its outstanding securities, then all of the
Warrants shall immediately vest.
2. EXERCISE OF WARRANT.
2.1 Manner of Exercise. This Warrant may be exercised by the Holder, in
whole or in part, but only with respect to vested shares, on any business day
during the Exercise Period, by surrender of this Warrant, with the form of
subscription attached hereto as Exhibit A fully executed by Holder, to the
Company at its office in Canton, Massachusetts, accompanied by payment in cash
in the amount obtained by multiplying (a) the number of shares of Common Stock
designated in such form of subscription by (b) the Purchase Price, and such
Holder shall thereupon be entitled to receive certificates representing said
number of shares of Common Stock plus all other stock and other securities and
property (including cash, where applicable) to which such Holder is then
entitled pursuant to Section 3.
2.2 When Exercise Effective. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in Section 2.1, and at such time the person or persons in whose name or names
any certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 2.3 shall be deemed
to have become the holder or holders of record thereof.
2.3 Delivery of Stock Certificates, etc. As soon as practicable after the
exercise of this Warrant in full or in part, and in any event within 10 business
days thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder hereof, or as such Holder may direct
(a) a certificate or certificates for the number of full shares of Common
Stock (or Other Securities) to which such Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Holder would
otherwise be entitled, cash in any amount equal to the same fraction of the
Market Price of one full share on the business day next preceding the date of
such exercise, and
(b) in case such exercise is in part only, a new Warrant or Warrants of
like tenor, calling in the aggregate on the face or faces thereof for the number
of shares of Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of such shares designated by the Holder upon such exercise.
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3. ADJUSTMENT FOR DIVIDENDS IN OTHER STOCK, PROPERTY, ETC., RECLASSIFICATION,
ETC. In case at any time, or from time to time after the Issue Date, the holders
of Common Stock (or Other Securities) of the Company shall have received, or (on
or after the record date fixed for the determination of shareholders eligible to
receive) shall have become entitled to receive, without payment therefor,
(a) other or additional stock, or other securities or property (other than
cash) by way of dividend, or
(b) any cash paid or payable (including, without limitation, by way of
dividend), except out of earned surplus of the Company, or
(c) other or additional (or less) stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate rearrangement, then
and in each such case the Holder, upon any exercise hereof, shall be entitled to
receive the amount of stock and other securities and property (including cash in
the cases referred to in subdivisions (b) and (c) of this Section 3) which such
Holder would have been entitled to receive on the date of such exercise if on
the Issue Date such Holder had been the holder of record of the shares purchased
on the date of such exercise and had thereafter, during the period from the
Issue Date to and including the date of such exercise, retained such shares and
all such other or additional stock and other securities and property (including
cash in the cases referred to in subdivisions (b) and (c) of this Section 3, but
not including interest thereon) receivable by such Holder as aforesaid during
such period.
4. COVENANTS OF THE COMPANY. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder hereunder. The Company
will take all action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable shares of
stock upon the exercise of all Warrants from time to time outstanding, and will
not transfer all or substantially all of its properties and assets to any other
person (corporate or otherwise), or consolidate with or merge into any other
person or permit any such person to consolidate with or merge into the Company
(if the Company is not the surviving person), unless such other person shall
expressly assume in writing and be bound by all the terms of the Warrants.
5. NOTICES OF RECORD, DATE, ETC. In the event of
(a) any taking by the Company 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 (other than a cash dividend payable out of earned
surplus) 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
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(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any transfer of all or
substantially all the assets of the Company and any other person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company:
The Company will mail to the Holder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and stating the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the date or expected date of any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation, or winding-up. Such notice shall be mailed at
least 20 days prior to the date therein specified.
6. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of this Warrant, a
sufficient number of shares of Common Stock to permit the exercise in full of
all outstanding Warrants. All shares of Common Stock shall be duly authorized,
validly issued, fully paid and nonassessable with no liability on the part of
the holder thereof.
7. SUBSTITUTION OF WARRANTS.
7.1 Exchange of Warrants. Subject to the provisions of Section 9.2, upon
surrender for exchange of this Warrant, properly endorsed, to the Company, the
Company at its expense will issue and deliver to or upon the order of the Holder
a new Warrant or Warrants of like tenor, in the name of such Holder or as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces (without giving effect to
any adjustment therein) of the Warrant or Warrants so surrendered.
7.2 Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant, and such indemnity as the Company may require, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
8. WARRANT AGENT. The Company may, by written notice to each holder of a
Warrant, appoint a bank, trust company or other financial institution having
assets in excess of $10,000,000 as an agent for the purpose of issuing Common
Stock (or Other Securities) upon the exercise of this Warrant pursuant to
Section 2, exchanging and replacing Warrants pursuant to Section 7, or any of
the foregoing, and thereafter any such issuance, exchange or replacement, as the
case may be, shall be made at such office by such agent.
9.1 OWNERSHIP OF WARRANT. Until this Warrant is transferred on the books of
the Company, the Company may treat the person in whose name this Warrant is
issued as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary, except that, if
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and when this Warrant is properly assigned in blank, the Company shall treat the
bearer hereof as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary. A Warrant, if properly assigned, may
be exercised by a new holder without first having a new Warrant issued. This
Warrant may not be transferred if such transfer would be illegal.
9.2 TRANSFER RESTRICTIONS. This Warrant has been issued and the shares of
Common Stock issuable upon exercise of this Warrant will be issued without
registration under the Securities Act of 1933, as amended, pursuant to an
exemption therefrom deriving in part from the representation and warranty of the
Holder hereof, which such Holder and successive holders hereof by acceptance of
this Warrant make and affirm, that this Warrant and the shares of Common Stock
issuable upon exercise hereof are purchased for investment and not with a view
to the distribution thereof in violation of the Securities Act of 1933, as
amended. Neither this Warrant nor the shares of Common Stock issuable upon
exercise hereof may be offered or sold, and no transfer thereof will be made by
the Company or its transfer agent without an opinion of counsel for the Company
that such a transfer will not be in violation of such Act.
10.1 REGISTRATION RIGHTS. Should the Company file at any time, a registration
statement with the Securities and Exchange Commission with respect to the
Company's securities, and the Company registers the shares of any existing
shareholders, the Company at its expense, agrees that it will at that time also
register the shares to be issued upon exercise of the Warrant (Underlying
Shares) and any shares previously issued upon exercise of the Warrant. The
Company shall not be obligated to register the underlying shares or such
outstanding shares if the form of the registration would preclude the
Corporation from registering the underlying shares. The Holder by executing this
Warrant, agrees to fully cooperate with the Company in conjunction with such
registration, to fully and truthfully answer any questionnaires for any breach
of their obligations herein set forth. All expenses of such registration,
including, but not limited to, legal, accounting and printing fees, shall be
borne by the Company.
The Company shall give 60 days notice to the holder of the Warrant or the
Holder of such Common Stock issued upon exercise of the Warrant (the "Holder"),
advising that the Company is proceeding with such Registration Statement and
offering to include therein Securities of such Holder. The Company shall not be
obligated to any such Holder unless such Holder shall accept such offer by
notice in writing to the Company within 30 days thereafter. Notwithstanding any
provision to the contrary, the Company's obligation to file a Registration
Statement shall not be satisfied unless and until the Registration Statement is
declared effective by the Commission. The registration rights of the Holders
shall not be extinguished if the Registration Statement is withdrawn for any
reason.
11. NOTICES. All notices and other communications from the Company to the
Holder shall be personally delivered or mailed by first class registered or
certified mail, return receipt requested, postage prepaid, at such address as
may have been furnished to the Company in writing by such Holder, or, until an
address is so furnished, to and at the address of the last holder of this
Warrant who has so furnished an address to the Company. The date of personal
delivery or the date of mailing, as the case may be, shall be deemed the date on
which such notice or other communication is given.
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12. MISCELLANEOUS. This Warrant and any term 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. This Warrant is being delivered in the Commonwealth of Massachusetts 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 the meaning hereof.
Signed and agreed to as of this ______ day of _________, 199__ by the
parties and by their duly authorized representative.
_________________________________ ________________________________________
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Exhibit A
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To International Electronics, Inc.:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ______________* shares of Common Stock of International
Electronics, Inc. and herewith makes payment of $___________therefor and
requests that the certificates for such shares be issued in the name of, and
delivered to ________________, whose address is _____________________________.
Dated: ______________________
______________________________________
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant)
_______________________________________
(Address)
_______________________________________
* Insert here the total number of shares appearing on the face of the Common
Stock Purchase Warrant (or, in the case of a partial exercise, the portion
thereof as to which the Warrant is being exercised), in either case without
making any adjustment for additional Stock or any other Stock or other
securities or property or cash which, pursuant to the adjustment provisions of
the Warrant, may be delivered upon exercise.
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Exhibit B
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto __________, with an address of ________________________________ the right
represented by the within Warrant to purchase up to _________ shares of Common
Stock of International Electronics, Inc. to which the within Warrant relates,
and appoints _________________ Attorney to transfer such right on the books of
International Electronics, Inc. with full power of substitution in the premises.
_______________________________
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
_______________________________________
Address
Signed in the presence of:
__________________________________
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SCHEDULE TO EXHIBIT 4.6
The form of warrant to which this Schedule is attached is used by the
Registrant in connection with the issuance of nine warrants to consultants and
employees. The warrants granted are substantively identical in all respects
except that the number of shares, the price per share and the issue dates set
forth in paragraph 1(d) of the form changes among the warrants and the vesting
schedule described in paragraph 1(g) of the form changes among the different
warrants. The vesting schedule provides for vesting from immediately to a period
of 24 months. The options were granted between January 1992 and June 1998.
