EXHIBIT 10.26
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO AN EXEMPTION TO SUCH
ACT.
QUALMARK CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER JULY 25, 2005
THIS CERTIFIES THAT, U.S. Bank National Association (the "Holder") is
entitled to purchase, the terms and subject to the conditions hereof, up to such
number of shares of Common Stock, no par value (the "Common Stock"), of QualMark
Corporation, a Colorado corporation (the "Company"), equal to 25,000 shares of
Common Stock into which the shares are convertible on the date of such
conversion, at a per share purchase price of $1.155 (the "Exercise Price"),
subject to adjustment as provided herein.
The following terms shall apply to this Warrant:
1. EXERCISE OF WARRANT
The terms and conditions upon which this Warrant may be exercised, and
the Common Stock covered hereby (the "Warrant Shares"), may be purchased, are as
follows.
1.1 Number of Shares. The number of Warrant Shares for
which this Warrant is initially exercisable is equal to 25,000 shares of Common
Stock, in which the number of Warrant Shares is subject to adjustment pursuant
to Section 2 of this Warrant.
1.2 Exercise. This Warrant may be exercised in whole or
in part at any time or from time to time up until 5:00 p.m. Mountain Standard
Time, July 21, 2005, and shall be void thereafter. The exercise of the purchase
rights hereunder, in whole or in part shall be effected by (a) the surrender of
this Warrant, together with a duly executed copy of the form of the subscription
attached as Exhibit A hereto, to the Company at its principal offices, and (b)
the delivery of the Exercise Price by (i) cashier's or certified check or back
draft payable to the Company's order, or (ii) by wire transfer to the Company's
account for the number of Warrant Shares for which the purchase rights hereunder
are being exercised.
1.3 Automatic Exercise. Notwithstanding the provisions of
Section 1.1 above, this Warrant shall automatically be deemed to be exercised in
full on the earliest of a date: (a) ten (10) days prior to the "Sale of the
Company" (as defined). A "Sale of the Company" shall mean either of the
following (i) the acquisition of all or substantially all of the capital stock
of the Company by another entity by means of any transaction or series of
related transactions (including, without limitation, any reorganization, merger
or consolidation but, excluding any merger effected exclusively for the purpose
of changing the domicile of the Company) with the result that the Company's
shareholders of record as constituted immediately prior to such acquisition or
sale, immediately after such acquisition or sale (by virtue of securities issued
as consideration for the Company's acquisition or sale or otherwise) hold less
than 50% of the voting power of the surviving or acquiring entity; or (ii) a
sale of all substantially all of the assets of the Company. In connection with
the exercise of this Warrant pursuant to clause (b) of this Section 1.3, such
exercise shall be conditioned upon the closing of such Sale of the Company and
the Warrant shall not be deemed to have been exercised until the closing of such
Sale of the Company.
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1.4 Issuance of Shares. Upon the exercise of the purchase
rights, in whole or in part, evidenced by this Warrant, a certificate or
certificates for the purchased Warrant Shares shall be issued by the Company to
the Holder as soon as practicable. Upon the partial exercise of this Warrant,
the Company shall, as soon practicable, deliver to the Holder a warrant in like
tenor as this Warrant to purchase the number of shares in respect of which this
Warrant shall not have been exercised.
2. CERTAIN ADJUSTMENTS
2.1. Common Stock Dividends. If the Company at any time
prior to the expiration of this Warrant shall pay a dividend with respect to
Company's Common Stock payable in shares of Common Stock, or make any
distribution with respect to the Company's Common Stock, then the purchase price
per share shall be appropriately decreased, and the number of Warrant Shares
shall be appropriately increased in proportion to such dividend.
2.2. Splits and Subdivisions. In the event the Company
should at any time or from time to time fix a record date for a split or
subdivision of the outstanding shares of Common Stock of the Company, or the
determination of the holders of Common Stock of the Company entitled to receive
a dividend or other distribution payable in additional shares of Common Stock of
the Company or other securities or rights convertible into, or entitling the
holder thereof to receive directly or indirectly, additional shares of the
Company's Common stock (hereinafter referred to as the "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or Common Stock Equivalents (including the
additional share of Common Stock issuable upon conversion or exercised thereof),
then, and as of such record date (or the date of such distribution, split or
subdivision if no record date is fixed), the per share purchase price shall be
appropriately decreased, and the number of Warrant Shares shall be appropriately
increased in proportion to such increase of outstanding shares.
2.3. Combination of Shares. If the number of shares of
Common Stock outstanding at any time after the date hereof is decreased by a
combination of the outstanding shares of Common Stock of the Company, the per
share purchase price shall be appropriately increased and the number of Warrant
Shares shall be appropriately decreased in proportion to such decrease in
outstanding shares.
2.4 Adjustments for Other Distributions. In the event the
Company shall declare a distribution with respect to the Common Stock
payable in securities of other persons, evidences of indebtedness
issued by the Company or other persons, assets, or options, or rights
not referred to above, then, in each such case for the purpose of this
Section 2 upon exercise of this Warrant the holder hereof shall be
entitled to a proportionate share of any such distribution as though
such holder was the holder of the number of shares of Common Stock of
the Company into which this Warrant may be exercised as of the record
date fixed for the determination of the holders of Common Stock of the
Company entitled to receive such distribution.
2.5 Certificate as to Adjustments. In the case of each
adjustment or readjustment of the purchase price pursuant to this Section 2, the
Company will promptly compute such adjustment or readjustment in accordance with
the terms hereof and cause a certificate setting forth such adjustment or
readjustment, and showing in detail the fact upon which such adjustment or
readjustment is based to be delivered to the holder of this Warrant.
The Company will, upon the written request at any
time of the holder of this Warrant, furnish or cause to be furnished to
such holder a certificate setting forth:
(a) such adjustments and readjustments
(b) the purchase price at the time in effect;
and
(c) the number of Warrant Shares receivable upon
the exercise of the Warrant.
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2.6 Notice of Record Date, etc. In the event of any
taking by the Company of a record of the holders of any class of securities of
the Company for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than cash 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
any capital reorganization of the company, any reclassification or
recapitalization of the capital stock of the Company, the Company will mail to
the holder of this Warrant at least twenty (20) days prior to the earliest date
specified therein, a notice specifying:
(a) The date on which such record is to be taken
for the purpose of such dividend distribution or right and the amount and
character of such dividend, distribution or right; or
(b) The date on which any such
reorganization, or reclassification is expected to become effective,
and the record date for determining shareholders entitled to vote
thereon.
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3. REPRESENTATIONS OF HOLDER.
3.1. Investment Intent. Holder hereby warrants
and represents that Holder is acquiring this Warrant, and any Warrant
Shares issued upon exercise of this Warrant, for Xxxxxx's own account
and not with a view for their resale or distribution.
3.2. Exempt from Registration. Xxxxxx acknowledges that
this Warrant has nor been registered under the Securities Act of 1933, as
amended (the "1933 Act"), on the ground that the issuance of this Warrant is
exempt from registration pursuant to Section 4 (2) of the 1933 Act, and that the
Company's reliance on such exemption is predicated on the representations of
Holder set forth.
3.3. Investment Experience. In connection with the
investment representations made herein, Holder represents that it is able to
fend for itself in the transactions contemplated by this Warrant, has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of his investment, has the ability to bear the
economics risks of its investment and has been furnished with and has had access
to such information as it has required and deemed appropriate to its investment
decision.
3.4. Restricted Securities. Holder hereby
confirms that Xxxxxx has been informed that this Warrant, and the
Warrant Shares issued upon exercise of this Warrant, are restricted
securities under the 1933 Act and may not be resold or transferred
unless this Warrant, and the Warrant Shares issued upon exercise of
this Warrant, are first registered under the federal securities and
deemed appropriate to its investment decision.
3.5 Disposition of Shares. Holder hereby agrees
that Holder shall make no disposition of this Warrant, and the Warrant
Shares issued upon exercise of this Warrant, unless and until (i) the
Warrant Shares shall have been registered by the Company under the
1933 Act; or (ii) Holder shall have provided the Company with
assurances that (x) the proposed disposition does nor require
registration of the Warrant Shares under the 1933 Act, or (y) all
appropriate action necessary for compliance with the registration
requirement of the 1933 Act of any exemption from registration
available under the 1933 Act (including Rule 144) has been taken.
4. REPRESENTATIONS. WARRANTIES AND COVENANTS.
This Warrant is issued and delivered by the Company
and accepted by Xxxxxx on the basis of the following representations,
warranties and covenants made by the Company.
4.1. The Company covenants that it will at all
times from and after the date hereof reserve and keep available such
number of its authorized shared of Common Stock of the Company as will
be sufficient to permit the exercise of this Warrant in full. The
Company covenants further that such shares as may be issued pursuant
to such exercise will, upon issuance, be duty and validly issued,
fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
4.2. The Company has all necessary authority to issue,
execute and deliver this Warrant and to perform its obligations hereunder. This
Warrant has been duly authorized issued, executed and delivered by the Company
and is the valid and binding obligation of the Company, enforceable in
accordance with its terms.
4.3. The shares of Common Stock issueable upon the
exercise of this Warrant have been duly authorized and reserved for issuance by
the Company and, when issued in accordance with the terms hereof, will be
validly issued, fully paid and non-assessable.
4.4 The issuance, execution and delivery of this Warrant
do not, and the issuance of the shares of Common Stock upon the exercise of this
warrant in accordance with the terms hereof will not, (i) Violate or contravene
the Company's articles of incorporation or bylaws, or any law, statute,
regulation, rule, judgment or order
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applicable to the company, (ii) violate, contravene or result in a breach or
default under any contract, agreement or instrument to which the Company is a
party or by which the Company or any of its assets are bound or (iii) require
consent or approval of or the filing of any notice or registration with any
person or entity.
5. FRACTIONAL SHARES.
No fractional shares shall be issued in connection with any
exercise of this Warrant. In lieu of the issuance of such fractional
shares, the Company shall issue one additional whole common share.
6. NO PRIVILEGE OF STOCK OWNERSHIP.
Prior to the exercise of this Warrant, the Holder shall not be
entitled, by virtue of holding this Warrant, to any rights of a
stockholder of the Company, including (without limitation) the right to
vote, receive dividends or other distributions, or exercise preemptive
rights, and such holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company. Noting
in this Section 6, however, shall limit the right of the Holder to be
provided the notices required herein, or to participate in
distributions described in Section 2 hereof if the Holder ultimately
exercises this Warrant.
7. TRANSFERS OR EXCHANGES
7.1. Subject to compliance with applicable federal and
state securities laws, this Warrant and all rights hereunder are transferable in
whole or in part by the Holder to any person or entity reasonably acceptable to
the Company. The Holder will provide written notice of such transfer to the
Company, and if no written objection from the Company is received by the Holder
within five business days after the date of notice, such transfer shall be
deemed accepted. The transfer shall be recorded on the books of the Company upon
the surrender of this Warrant, properly endorsed, to the Company at is principal
offices, and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer. In the event of a partial
transfer, the Company shall issue to the holders one or more appropriate new
warrants.
7.2. All new Warrants issued in connection with transfers,
exchanges or partial exercises shall be identical in form and provision to this
Warrant except as to the number of shares.
8. SUCCESSORS AND ASSIGNS.
The terms and provisions of this Warrant shall be binding upon
the Company, the Holder, and their respective successors and assigns,
subject at all times to the restrictions set forth in the Agreement and
in this Warrant.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT.
Upon receipt of notice by the Company of the loss, theft,
destruction, or mutilation of this Warrant, and upon reimbursement to
the Company of all reasonable expenses incidental thereto, and, if
mutilated upon surrender and cancellation of this Warrant, the Company
will make and deliver a new warrant, in identical form, and dated as of
such cancellation, in lieu of this Warrant.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC.
If the last or appointed day for the taking of any action, or
the expiration of any right required or granted herein shall be a
Saturday, or Sunday, or shall be a legal holiday, then such action may
be taken or such right may be exercised, except as to the purchase
price, on the next succeeding day not a legal holiday.
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11. AMENDMENTS AND WAIVERS.
Any term of this Warrant may be amended, and the observance of
any term of this Warrant may be waived (either generally or in a
particular instance, and either retroactively or prospectively), with
the written consent of the Company and the Holder, such consent not to
be unreasonably withheld. Any such amendment or waiver shall be binding
on the Holder.
12. GOVERNING LAW.
This warrant shall be governed by and construed in accordance
with the laws of the State of Colorado.
13. NOTICES.
Any notice, demand or delivery pursuant to the provisions
hereof shall be sufficiently delivered or made if sent by first class
mail, postage prepaid, addressed to any holder of a Warrant at its last
known address appearing on the books of the Company, or, except as
herein otherwise expressly provided, to the Company at its principal
executive office at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or
such other address as shall have been furnished to the party giving or
making such notice, demand or delivery.
Dated as of July 25, 2003
QUALMARK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
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EXHIBIT A
SUBSCRIPTION
________, 20___
Xx. Xxxxxxx X. Xxxxxxx
Chief Financial Officer
QualMark Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxx:
The undersigned hereby elects to purchase, pursuant to the provisions
of the Warrant dated as of July 25, 2003, _____________ (partial exercise
permitted) shares of the Common Stock of QualMark Corporation, a Colorado
corporation.
Dated: ________________
U.S. BANK NATIONAL ASSOCIATION
By: ________________
Its: ________________
Signature: ___________________________________
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