EXHIBIT 4.13
SERIES A WARRANT TO PURCHASE
COMMON STOCK OF
XCEL MANAGEMENT, INC.
______________________________________
Dated: February 18, 2000
______________________________________________________________________________
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.
Series A Warrant to Purchase
__________ Shares of
Common Stock, subject to
Adjustment as herein provided
SERIES A WARRANT TO PURCHASE COMMON STOCK
XCEL MANAGEMENT, INC.
Dated as of the 18th day of February, 2000.
WHEREAS, the undersigned desires to acquire for investment purposes this
Series A Warrant to Purchase Common Stock providing for the acquisition of
__________ 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 his 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 Series A
Warrant to Purchase Common Stock (this "Warrant") as set forth in Paragraph 4
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below, an aggregate of ____________________________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
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terms 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 December
31, 2001 or, in the event that December 31, 2001 is not a Business Day, the
Business Day next following.
(c) "Exercise Price" shall mean a strike price of $3.57 per share.
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(d) "Holder" shall mean the Person(s) then registered as the owner
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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 (or
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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 hereof.
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3. Exercise of Warrant. Subject to and in accordance with the provisions
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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 date
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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 in
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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
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hereto duly executed by Xxxxxx and (iii) payment of the Exercise Price 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 hereunder.
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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 adjustment
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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 16 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. This Warrant is nontransferable and must be
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exercised by the original holder hereof. The undersigned represents and
warrants that this Warrant is 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").
(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.
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(b) The undersigned shall, prior to any disposition or attempted
disposition of the Warrant Securities, give written notice to the Company
of his intention to effect such disposition and shall deliver to the
Company an opinion of legal counsel (reasonably suitable to the Company)
that the proposed disposition of 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 Holder
shall be entitled to dispose of the Warrant Securities in accordance with
the terms of the notice delivered by the undersigned to the Company.
(c) Until the Warrant Securities are registered under the Act, each
certificate evidencing the Warrant Securities so disposed of (and each
certificate evidencing any undisposed of 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 or transfer."
(d) 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 in 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 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 times
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keep available through the term of the Exercise Period, solely for delivery upon
the exercise of this Warrant, such
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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 who
has so furnished an address to the Company:
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If to the Company:
XCEL Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
If to Holder:
_________________
_________________
_________________
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 as of the 18th day of February, 2000.
By:__________________________________________
Signature
Printed Name:
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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: Series A Warrant to Purchase Common Stock dated February 18, 2000 by
and between the Company and ___________ (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
EXHIBIT "I" Page 1
