EXHIBIT 4.33
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 July 30, 1999
up to 120,000 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 $3.50 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 120,000 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
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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.
2. Adjustment of Number of Shares Subject to Warrant. Upon any adjustment
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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
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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 Preferred Stock issued pursuant to the Securities Purchase
Agreement dated July 30, 1999 (the "Purchase Agreement"), and issuable upon the
exercise of warrants, except for this Warrant and other warrants issued pursuant
to the Purchase Agreement, and options of the Corporation) 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 Preferred Stock
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issued pursuant to the Purchase Agreement, and issuable upon the exercise of
warrants, except for this Warrant and other warrants issued pursuant to the
Purchase Agreement, and options of the Corporation, 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
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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 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
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issued pursuant to the agreement shall be deemed to have been issued at the
time the agreement was entered into for the total consideration 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).
The Corporation is a party to that certain Agreement and Plan of
Merger and Reorganization dated as of February 17, 1998 (the "ESC
Agreement") by and among the Corporation, Displays Acquisitions Corp.,
Electronic Sign Corporation and the shareholders of Electronic Sign
Corporation (the "ESC Shareholders"). The issuance to the ECS Shareholders
of up to 540,000 shares of Common Stock pursuant to Section 1.11 of the ECS
Agreement shall not give rise to an adjustment of the Exercise Price under
Section 3 hereof.
(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
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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 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 Convertible Preferred Stock issued pursuant to the Securities Purchase
Agreement, and issuable upon the exercise of warrants, except for this Warrant
and other Warrants issued pursuant to 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 Convertible Preferred Stock
issued pursuant to the Securities Purchase Agreement, and issuable upon the
exercise of warrants, except for this Warrant and other Warrants issued pursuant
to 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
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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
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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 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
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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
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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
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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
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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.
8. Notices of Record Dates. In the event of:
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(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
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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.
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10. Transferability. The holder of this Warrant may transfer this Warrant
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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 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
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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 July 30, 1999. 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
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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
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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
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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.
IN WITNESS WHEREOF, the Corporation has executed this Warrant under seal on
and as of the day and year first above written.
(Signatures on next page)
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DISPLAY TECHNOLOGIES, INC.
By: ______________________________
Its: _____________________________
Attest: __________________________
Its:______________________________
[CORPORATE SEAL]
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