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EXHIBIT 4.4
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH WARRANTS AND SHARES MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
SI TECHNOLOGIES, INC.
WARRANT
DATED: April 17, 1998
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Holder: The Boston Group, L.P.
Number of Warrants: 79,968
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THIS CERTIFIES THAT Holder is the owner of the number of Warrants set
forth above of SI Technologies, Inc., a Delaware corporation (hereinafter called
the "Company"). Each Warrant entitles the registered holder (the "Holder") to
purchase one share of Common Stock of the Company ("Common Stock"). This Warrant
is issued pursuant to Section 1.8.2 of the Dealer Manager Agreement dated as of
March 23, 1998 between the Company and the Holder.
1. Warrant to Purchase Common Stock. Each Warrant evidenced by this
Certificate shall constitute a Warrant to purchase one share of Company Common
Stock at an exercise price of $5.50 per share, subject to adjustment as set
forth herein.
2. Certain Definitions. As used in this Warrant, the following terms
shall have the following respective meanings:
"Act" means the Securities Act of 1933, as amended, or any similar
federal statute enacted hereafter, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time.
"Affiliate" of any person means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person. For purposes of this definition, "control," when used with respect
to any person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"Common Stock" means the common stock, par value $0.01 per share, of
the Company, and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for or in substitution for, such common stock by reason of reason of
any stock splits, stock dividends, distributions, mergers, consolidations or
other like events.
"Company" means SI Technologies Inc., a Delaware corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Holders" means each registered holder of this Warrant and
each holder of Common Stock issued pursuant to this Warrant; provided, however,
that any person who acquires any of the Warrant Shares in a distribution
pursuant to a registration statement filed by the Company under the Act shall
not be deemed a Holder.
"NASDAQ" means the Nasdaq Market.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Purchase Price" means $5.50 per share, subject to adjustment as set
forth in this Warrant.
"Register," "Registered" and "Registration" refer to a registration
effective by preparing and filing a registration statement in compliance with
the Act and the declaration or ordering of effectiveness of such registration
statement by the SEC.
"SEC" means the Securities and Exchange Commission.
"Transfer Agent" means Continental Stock Transfer & Trust Company, or
any duly appointed successor transfer agent for the Common Stock.
"Warrant Shares" means the shares of Common Stock issuable or issued
upon the exercise of this Warrant.
3. Right to Exercise Warrants. The rights represented by this Warrant
are exercisable for five years from the date hereof.
4. Exercise of Warrants. (a) Subject to Paragraph 3 and the other
provisions of this Warrant, the rights represented by this Warrant may be
exercised by (i) surrender of this Warrant (with the purchase form at the end
hereof properly executed) at the principal executive office of the Company (or
such other office or agency of the Company as the Company may designate by
notice in writing to Holder at the address of Holder appearing on the books of
the Company); (ii) payment to the Company of the Purchase Price for the number
of shares specified in the above-mentioned purchase form together with
applicable stock transfer taxes, if any; or conversion of this Warrant as
provided in Paragraph 4(b) hereof and (iii) delivery to the Company of a
statement by Holder (in a form acceptable to the Company and its counsel) that
such shares are being acquired by Holder for investment and not with a view to
their distribution or resale except a sale pursuant to a registration statement
("Registration Statement"). This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date the Warrant is
surrendered and payment is made in accordance with the foregoing provisions of
this Paragraph 4, and the person or persons in whose name or names the
certificates for Warrant Shares shall
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be issuable upon such exercise shall become the holder or holders of record of
such Warrant Shares at that time and date. The certificates for the Warrant
Shares so purchased shall be delivered to Holder within a reasonable time, not
exceeding three (3) business days, after the rights represented by this Warrant
shall have been so exercised. If the Warrant is exercised prior to the effective
date of a registration statement to be filed by the Company under the terms of
the Registration Rights Agreement (as defined below), the Warrant Shares shall
bear a legend substantially similar to the following restrictive legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
If fewer than all of the Warrants represented by this Warrant are
exercised, this Warrant shall be surrendered and, subject to the provisions as
provided herein, a new Warrant of the same tenor and for the number of Warrants
that were not exercised shall be signed by the Company and delivered by the
Company to the person or persons entitled to receive the same.
No service charge shall be required of a Holder for any registration of
transfer or exchange of this Warrant. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of this Warrant.
(b) At the option of the Holder, to the extent the Holder could
otherwise exercise this Warrant, the Holder shall have the right to convert this
Warrant, in whole or in part, at any time and from time to time prior to the
expiration of this Warrant, by surrender of this Warrant and the above-mentioned
purchase form in accordance with the same procedures contemplated for exercise
of this Warrant, into Warrant Shares as provided in this Paragraph 4(b) (a "Net
Exercise"). Upon exercise of this conversion right (and without payment by the
Holder of the Purchase Price), Holder shall be entitled to receive that number
of Warrant Shares computed using the following formula:
X = Y (A-B)
-------
A
Where: X = The number of Warrant Shares to be issued to
Holder.
Y = The number of Warrant Shares purchasable
under this Warrant (at the date of such
calculation).
A = The "Current Market Price" (as defined
below) of one Warrant Share (at the date of
such calculations).
B = The Purchase Price (as adjusted to the date
of such calculation).
For the purposes of this Paragraph 4(b), the term "Current Market
Price" shall mean (i) if the Company's Common Stock is traded on the Nasdaq
National Market ("NNM") or on a national securities exchange, the per share
closing price of the Common Stock on the date of exercise of this Warrant or
(ii) if the Company's Common Stock is traded in the over-the-counter market and
not in the NNM or a national securities exchange, the average of the per share
closing bid prices of the Common Stock during
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the thirty (30) consecutive trading days immediately preceding the date in
question, as reported by the Nasdaq SmallCap Market (or an equivalent generally
accepted reporting service if quotations are not reported on the Nasdaq SmallCap
Market). The closing price referred to in clause (i) above shall be the last
reported sale price or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices, in either case in the
NNM or on the principal stock exchange on which the Common Stock is then listed.
For purposes of clause (ii) above, if trading in the Common Stock is not
reported by the Nasdaq SmallCap Market, the bid price referred to in said clause
shall be the lowest bid price as reported in the Nasdaq Electronic Bulletin
Board or, if not reported thereon, as reported in the "pink sheets" published by
Nasdaq, an if the Common Stock is not so reported, shall be determined by the
price of a share of Common Stock determined by the Company's Board of Directors
in good faith.
5. Assignment. This Warrant may not be transferred, sold, assigned or
hypothecated, except pursuant to a valid and effective registration statement or
if the Company has received from its counsel a written opinion to the effect
that registration of the Warrant is not necessary in connection with such
transfer, sale, assignment or hypothecation. Any such assignment shall be
effected by Holder by (i) executing the form of assignment at the end hereof;
(ii) surrendering the Warrant for cancellation at the office or agency of the
Company referred to in Paragraph 4 hereof, accompanied by the opinion of counsel
referred to above; and (iii) delivery to the Company of a statement by the
transferee Holder (in a form acceptable to the Company and its counsel) that
such Warrant is being acquired by such Holder for investment and not with a view
to its distribution or resale; whereupon the Company shall issue, in the name or
names specified by Holder (including Holder), new Warrants representing in the
aggregate rights to purchase the same number of Warrant Shares as are
purchasable under the Warrant surrendered. The term "Holder" shall be deemed to
include any person to whom this Warrant is transferred in accordance with the
terms herein.
6. Registration of Warrant Shares. The Company has no obligation to
register the Warrant Shares, except as provided in the Registration Rights
Agreement (the "Registration Rights Agreement") among the Company and the
purchasers of Units, as described and pursuant to that certain SI Technologies,
Inc. Private Placement Memorandum dated March 16, 1998. The Holder hereby
becomes a signatory to the Registration Rights Agreement subject to the
restrictions and benefits thereof as if Holder were a "Holder" as defined in the
Registration Rights Agreement and the Warrant Shares were "Warrant Shares" as
defined in the Registration Rights Agreement.
7. Warrant Shares. The Company covenants and agrees that all Warrant
Shares which may be issued upon exercise hereof will, upon issuance, be duly and
validly issued, fully paid and non-assessable and no personal liability will
attach to the holder thereof and that upon issuance such shares shall be listed
on each national securities exchange, if any, or approved for trading on any
market on which any other shares of outstanding Common Stock of the Company are
then listed or approved for trading. The Company further covenants and agrees
that, during the periods within which this Warrant may be exercised, the Company
will at all times have authorized and reserved a sufficient number of shares of
Common Stock, free of preemptive rights, for issuance upon exercise of this
Warrant and all other Warrants.
8. No Stockholder Rights. This Warrant shall not entitle Holder to any
voting rights or other rights as a stockholder of the Company, including,
without limitation, the right to receive dividends or subscription rights, the
right to vote, to consent, to exercise any preemptive right, to receive any
notice of meetings of stockholders for the election of directors of the Company
or any other matter or to receive any notice of any proceedings of the Company,
except as may be specifically provided for herein. To the
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extent such documents are required to be sent by the Company to the holders of
its outstanding Common Stock, the Company shall provide Holder, within 15 days
after it files them with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company may be required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act.
9. Adjustment of Rights. In the event that the outstanding shares of
Common Stock of the Company are at any time increased or decreased or changed
into or exchanged for a different number or kind of share or other security of
the Company or of another corporation through reorganization, merger,
consolidation, liquidation, recapitalization, stock split, combination of shares
or stock dividends payable with respect to such Common Stock, appropriate
adjustments in the number and kind of such securities then subject to this
Warrant shall be made effective as of the date of such occurrence so that the
position of Holder upon exercise will be the same as it would have been had
Holder owned immediately prior to the occurrence of such events the Warrant
Shares subject to this Warrant. Such adjustment shall be made successively
whenever any event listed above shall occur and the Company will notify Holder
of the Warrant of each such adjustment. Any fraction of a share resulting from
any adjustment shall be eliminated and the price per share of the remaining
shares subject to this Warrant adjusted accordingly. If, as a result of an
adjustment made pursuant to this paragraph, the Holder of any Warrant thereafter
exercised shall become entitled to receive shares of two or more classes of
capital stock of the Company, the Board of Directors (whose determination shall
be conclusive) shall determine the allocation of the adjusted Purchase Price
between or among shares of such classes of capital stock. This provision shall
not limit the rights of Holder as specified herein to exercise this Warrant
prior to any of the events described herein.
In the event of a complete liquidation of the Company, or a merger,
reorganization, consolidation of the Company with any other corporation in which
the Company is not the surviving corporation or the Company becomes a
wholly-owned subsidiary of another corporation, or the Company sells all or
substantially all of its assets (each such event referred to herein as a
"Corporate Event"), the Company shall provide written notice of the proposed
Corporate Event to all Holders of Warrants thirty-five (35) days prior to the
occurrence of any such Corporate Event, describing all material terms of the
proposed Corporate Event and providing the opportunity to all Holders to review
all relevant documents in connection with the Corporate Event.
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of this Warrant. If any fraction of a share of Common
Stock would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay to
Holder an amount in cash calculated by the Company to equal the then current
market value per share multiplied by such fraction computed to the nearest whole
cent. Holder, by acceptance of this Warrant, expressly waives any and all rights
to receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
10. Notices. Notices and other communications provided for herein shall
be in writing and may be given by mail, courier, confirmed telex or facsimile
transmission and shall, unless otherwise expressly required, be deemed given
when received, when delivery thereof is refused, or when mailed first class,
postage prepaid and addressed as provided herein, whichever is earlier. In the
case of Holder, such notices and communications shall be addressed to its
address as shown on the books maintained by the Company, unless Holder shall
notify the Company that notices and communications should be sent to a different
address (or telex or facsimile number) in which case such notices and
communications shall be sent to the address (or telex or facsimile number)
specified by Holder. Notices and communications
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to the Company shall be sent to: SI Technologies, Inc., 0000 Xxxxx 000xx Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, unless Company notifies Holder that notices and
communications shall be sent to another address (or telex or facsimile number)
specified by the Company in which case such notices and communications shall be
sent to the address (or telex or facsimile number) specified by the Company.
11. Governing Law. This Warrant shall be governed by and construed in
accordance with the internal laws of Delaware.
12. Right of Action. All rights of action in respect of this Warrant
are vested in Holder, and Holder, without the consent of the holder of any other
warrant, may, on Holder's own behalf and for Holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, Holder's rights hereunder,
including the right to exercise, exchange or surrender for purchase such Warrant
in the manner provided herein.
13. Payment of Taxes. The Company will pay all taxes and other
governmental charges that may be imposed on the Company or on this Warrant or on
any securities deliverable upon exercise of this Warrant with respect thereto.
The Company will not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of any certificate
for shares of Common Stock or other securities underlying this Warrant or
payment of cash or other securities underlying this Warrant or payment of cash
or other property to any person other than Holder upon the exercise hereof and
in case of such transfer or payment, the Company shall not be required to issue
any stock certificate or security or pay any cash or distribute any property
until any tax or charge which the Company advises the Holder is due has been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
14. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. If (a)
this Warrant is mutilated and it is surrendered to the Company or (b) the
Company receives evidence to its satisfaction of the destruction, loss or theft
of this Warrant, and there is delivered to the Company such security or
indemnity as may be reasonably required by the Company to save it harmless,
then, in the absence of notice to the Company that this Warrant has been
acquired by a bona fide purchaser, the Company shall execute and deliver, in
exchange for the mutilated Warrant or in lieu of the destroyed, lost or stolen
Warrant, a new Warrant of like tenor and for a like aggregate number of
Warrants.
Upon the issuance of any new Warrant under this Section 14, the Company
may require the payment by Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and other expenses
(including the reasonable fees and expenses of counsel to the Company in
connection therewith).
Every new Warrant executed and delivered pursuant to this Section 14 in
lieu of any destroyed, lost or stolen Warrant shall constitute an original
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone.
The provisions of this Section 14 are exclusive and shall preclude (to
the extent lawful) all other rights or remedies with respect to the replacement
of the mutilated, destroyed, lost or stolen Warrant.
15. Miscellaneous Rights. The rights of Holder upon the occurrence of
the events set forth in this Warrant are cumulative. If more than one such event
shall occur and the periods following the occurrence of such events and prior to
the closing of the transactions that are the subject of such events
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overlap, Holder may exercise such rights arising therefrom as Holder may elect
without any condition imposed upon such exercise not contained in this Warrant.
Neither the Company nor any of its Affiliates involved in any proposed
transaction that is the subject of such an event shall have any obligation to
Holder to consummate any such proposed transaction once an agreement or
agreement in principle or decision to proceed with respect thereto is reached,
whether on the terms first proposed or as revised, or to include Holder in, or
apprise Holder of, any negotiations or discussions concerning any such proposed
transaction among the prospective parties thereto, except as expressly provided
herein.
16. Persons Benefiting. This Warrant shall be binding upon and inure to
the benefit of the Company and its respective successors, assigns,
beneficiaries, executors and administrators, and the Holder from time to time of
the Warrant. Nothing in this Warrant is intended or shall be construed to confer
upon any person, other than the Company and the Holder of this Warrant, any
right, remedy or claim under or by reason of this Warrant or any part hereof.
17. Counterparts. This Warrant may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
18. Amendments. The Company may, without the consent of the Holder, by
supplemental agreement or otherwise, make any changes or corrections in this
Warrant that it shall have been advised by counsel (a) are required to cure any
ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or (b) add to the
covenants and agreements of the Company for the benefit of Holder, or surrender
any rights or power reserved to or conferred upon the Company in this Warrant;
provided that, in the case of (a) or (b), such changes or corrections shall not
adversely affect the interests of Holder in any material respect. Except as
otherwise provided in this Warrant, this Warrant or any provision hereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
19. Headings. The descriptive headings of the several Sections of this
Warrant are inserted for convenience and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers, and to be dated as of the date set forth above.
SI TECHNOLOGIES, INC., a Delaware corporation
By: _________________________________________
Name:________________________________________
Title:_______________________________________
HOLDER: THE BOSTON GROUP, L.P.
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________________________________________
Signature
________________________________________
Print or Type Name
________________________________________
Social Security Number or
Tax Identification Number
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
1. The undersigned, the holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
to exercise ___________ Warrants for, and to the purchase thereunder, __________
shares of Common Stock of SI Technologies Inc., a Delaware corporation, and
herewith makes payment of $____________ thereof, or elects to convert the
Warrant into such number of shares of Common Stock as determined pursuant to
Paragraph 4(b) of the Warrant, and requests that the certificates for shares of
Common Stock be issued in the name(s) of, and delivered to _______________ whose
address(es) is (are) _________________________.
2. The undersigned hereby certifies that the undersigned is an
"Accredited Investor" (as defined in Regulation D promulgated pursuant to the
Securities Act of 1933, as amended).
3. The undersigned acknowledges that if a registration statement
covering the shares to be issued upon the exercise of the Warrant is not
effective as of the date of the exercise, a legend in substantially the
following form will be placed on the certificates representing the Common Stock
along with any other legend required by any applicable state securities laws:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Dated:____________, ____
________________________________________
(Signature)
________________________________________
(Print or Type Name)
________________________________________
Address
________________________________________
Social Security Number or
Tax Identification Number
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TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto _______________ the right to purchase shares of Common Stock
represented by _________________________ Warrants, and appoints
_________________________ attorney to transfer such rights on the books of
_________________________, with full power of substitution in the premises.
Dated:____________, _____
________________________________________
Holder's Signature
________________________________________
(Print or Type Name)
________________________________________
Address
________________________________________
In the presence of:
________________________________________
(Signature)
________________________________________
(Print or Type Name)
