Exhibit 4.1
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. THE
SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS UNLESS
OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
Right to Purchase 600,000 Shares of
Common Stock, no par value per share
Date: Issued July 22, 2003
--
Effective as of
April 21, 2003
MEASUREMENT SPECIALTIES, INC.
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Four Corners Capital
Partners, LP ("Four Corners"), or its registered assigns, is entitled to
purchase from Measurement Specialties, Inc., a corporation organized under the
laws of the State of New Jersey (the "COMPANY"), at any time or from time to
time during the period specified in Section 2 hereof, six hundred thousand
(600,000) fully paid and nonassessable shares of the Company's common stock, no
par value per share (the "COMMON STOCK"), at an exercise price per share (the
"EXERCISE PRICE") equal to $3.16. The shares of Common Stock purchasable
hereunder shall be defined herein as "WARRANT SHARES." The Exercise Price is
subject to adjustment as provided in Section 4 hereof. The term "WARRANT" means
this Warrant which is being issued by the Company pursuant to a certain letter
agreement by and between the Company and Four Corners (the "Letter Agreement").
This Warrant is subject to the following terms, provisions and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
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Subject to the provisions hereof, at any time during the Exercise Period (as
herein defined), this Warrant may be exercised by the holder hereof, in whole or
in part (subject to the vesting
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provisions of Section 2 hereof), by the surrender of this Warrant, together with
a completed exercise agreement in the form attached hereto (the "EXERCISE
AGREEMENT"), to the Company during normal business hours on any Business Day at
the Company's principal executive offices (or such other office or agency of the
Company as it may designate by written notice to the holder hereof), and upon
(i) payment to the Company in cash, by certified or official bank check or by
wire transfer for the account of the Company, of the Exercise Price for the
Warrant Shares specified in the Exercise Agreement or (ii) if the Holder is
effectuating a Cashless Exercise (as defined in Section 11(c) hereof) pursuant
to Section 11(c) hereof, delivery to the Company of a written notice of an
election to effect a Cashless Exercise for the Warrant Shares specified in the
Exercise Agreement. The Warrant Shares so purchased shall be deemed to be issued
to the holder hereof or such holder's designee, as the record owner of such
shares, as of the close of business on the date on which this Warrant shall have
been surrendered, the completed Exercise Agreement shall have been delivered,
and payment shall have been made for such shares as set forth above or, if such
date is not a Business Day, on the next succeeding Business Day. The Warrant
Shares so purchased, representing the aggregate number of shares specified in
the Exercise Agreement, shall be delivered to the holder hereof within a
reasonable time, not exceeding two (2) Business Days, after this Warrant shall
have been so exercised (the "Delivery Period"). If this Warrant shall have been
exercised only in part, then the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the holder a new Warrant representing
the number of shares with respect to which this Warrant shall not then have been
exercised.
2. Period of Exercise; Vesting. (a) This Warrant shall be exercisable
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subject to the vesting provisions and early termination provisions of this
Section 2 at any time and from time to time until April 30, 2013 (the "EXERCISE
PERIOD").
(b) The right to purchase Warrant Shares hereunder shall vest
in accordance with the following schedule:
(i) Two hundred and ten-thousand (210,000) Warrant
Shares (the "Period One Shares") shall become purchasable between the date
hereof and April 30, 2004 ("Period One"); with one-quarter of such Period One
Shares becoming purchasable on the last day of the months of July, October,
January and April of Period One;
(ii) One hundred eighty-thousand (180,000) Warrant Shares
(the "Period Two Shares") shall become purchasable between May 1, 2004 and April
30, 2005 ("Period Two"); with one-quarter of such Period Two Shares becoming
purchasable on the last day of the months of July, October, January and April
of Period Two;
(iii) One hundred twenty-thousand (120,000) Warrant Shares
(the "Period Three Shares") shall become purchasable between May 1, 2005 and
April 30, 2006 ("Period Three"); with one-quarter of such Period Three Shares
becoming purchasable on the last day of the months of July, October, January and
April of Period Three;
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(iv) Ninety-thousand (90,000) Warrant Shares (the "Period
Four Shares") shall become purchasable between May 1, 2006 and April 30, 2007
("Period Four"); with one-quarter of such Period Four Shares becoming
purchasable on the last day of the months of July, October, January and April of
Period Four.
(c) Period One, Period Two, Period Three and Period Four are
collectively referred to herein as the "Periods" and each, a "Period". If the
average closing sale price of the Common Stock on the American Stock Exchange
(or any other stock exchange or trading system on which the Common Stock may
hereafter be listed or quoted) during any period of ninety (90) Business Days
(as hereinafter defined) exceeds the "Acceleration Price" specified with respect
to any Period below, (i) all Warrant Shares scheduled to vest during such Period
shall immediately vest and become immediately purchasable hereunder, (ii) the
definition of the next succeeding Period shall be deemed amended to be the
twelve-month period beginning the first day of the month following the month in
which the Acceleration Price is achieved and ending on the last day of the
twelfth succeeding month, (iii) the definition of any other remaining succeeding
Period shall be deemed amended in a manner similar to that set forth in clause
(ii) above, and (iv) one quarter of the Warrant Shares for each such succeeding
Period shall become purchasable on the last day of each of the third, six, ninth
and twelfth months of such newly defined Period. Provisions of this Paragraph
2(c) shall operate to accelerate vesting any time an Acceleration Price is
achieved; achievement of the Acceleration Price with respect to any Period shall
not limit the effect of this paragraph in subsequent Periods. In the event of
an adjustment to the Exercise Price pursuant to Section 4 hereof, the
Acceleration Price shall be similarly adjusted in the manner described in
Section 4 hereof. The Acceleration Price with respect to each Period shall be
as follows:
Period Acceleration Price
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Period One $ 7.50
Period Two $ 10.00
Period Three $ 12.00
Period Four $ 15.00
(d) Notwithstanding anything contained elsewhere in this Section 2
to the contrary, the right to purchase any and all Warrant Shares hereunder
shall vest and become immediately exercisable upon the occurrence of a "Change
of Control" of the Company. For purposes of this Section 2(d) a "Change of
Control" of the Company shall mean (i) any liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary; (ii) any merger,
consolidation, conversion transaction or reorganization of the Company with or
into any other entity or entities that results in the conversion or exchange of
outstanding Common Stock (or any securities into which such Common Stock may be
converted or exchanged) of the Company for securities issued or other
consideration paid or caused to be issued or paid by any such entity or
affiliate thereof
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(other than a merger of the Company with or into another entity that does not
result in the holders of Common Stock immediately prior to the consummation of
such transaction ceasing to own a majority of the voting securities of the
entity surviving or resulting from the merger); or (iii) any sale, transfer or
disposition of all or substantially all of the property or assets of the
Company. For purposes of the immediately preceding sentence, sale, transfer or
disposition of substantially all of the property or assets of the Company shall
mean the sale of property or assets, in a single transaction or a series of
related transactions, having a value in excess of 50% of the value of assets
reflected on the balance sheet of the Company immediately prior to the first
such sale.
(e) In the event the Agreement between Four Corners and the
Company, dated April 1, 2003, (the "Agreement") is terminated by the Company for
Cause, as provided in Paragraph 9 of the Agreement, the vesting of rights to
purchase Warrant Shares pursuant to this Section 2 shall immediately cease and
this Warrant shall be exercisable with respect to vested rights to purchase
Warrant Shares for a period of six months from the date of notice of such
termination.
(i) The Company may terminate the Agreement for Cause upon
sixty (60) days' prior written notice to Four Corners. The notice shall set
forth the specific grounds upon which the Company seeks to terminate the
Agreement for Cause. A termination shall be for Cause only if it is based on
any one or more of the following: (a) Xxxxx Xxxxxxx ("Executive") has been
convicted by a court of competent jurisdiction of a felony, based on Executive's
commission of a criminal act; (b) Executive commits fraud; (c) Executive
willfully neglects or refuses to discharge his duties pursuant to the Agreement,
assuming the assigned duties are lawful, which continues for a period of thirty
(30) Business Days following written notice thereof by the Board to Four
Corners, or (d) a material breach of the Agreement by Four Corners, which
continues for a period of thirty (30) Business Days following notice written
thereof by the Board to Four Corners. No act or failure on Executive's part
shall be considered "willful" unless it is done, or omitted to be done by
Executive, in bad faith or without reasonable belief that Executive's action or
omission was in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a specific resolution duly adopted by the
Board of Directors of the Company (the "Board") or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, by Executive in good faith and in the best interests of the Company.
(ii) The Company may not terminate the Agreement for Cause
until: (a) Executive and Four Corners have the opportunity to appear before the
Board, with or without legal representation, to address the Board's stated
reason for termination, (b) the affirmative vote of the majority of the Board
members (excluding the Executive if he is a member of the Board, and any other
member of the Board reasonably believed by the Board to be involved in the
events leading the Board to terminate the Agreement for Cause) agreeing that the
actions or inactions of the Executive or Four Corners, as specified in the
notice of termination occurred, that such actions or inactions constitute Cause,
and that the Agreement should, accordingly, be terminated for Cause, and (c) the
Board provides Four Corners with a written determination setting forth the
specific details that form the basis of such termination.
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(f) In the event the Agreement is terminated by the Company
without Cause, or by Four Corners for Good Reason, as provided in Paragraph 9 of
the Agreement, the right to purchase the Warrant Shares shall vest and become
immediately exercisable with respect to those Warrant Shares scheduled to vest
during the Period in which the Agreement is terminated and for the Period
immediately following the Period in which the Agreement is terminated, and shall
remain exercisable for a period of six months from the date of such termination.
Four Corners may terminate the Agreement for Good Reason upon sixty (60) days'
prior written notice to the Company. The notice shall set forth the specific
grounds upon which Four Corners seeks to terminate the Agreement for Good
Reason. A termination shall be for Good Reason only if it is based on any one
or more of the following: (a) any material change in Executive's position,
scope of authority or responsibilities, or a change in Executive's title, to
which Executive has not previously agreed, (b) failure by the Company to fulfill
its obligations specified in Paragraphs 5 and 6 of the Agreement, or to provide
the insurance specified in Paragraph 8 of the Agreement, or (c) a material
breach of the Agreement by the Company. The Company will have thirty (30)
Business Days to cure the Good Reason following notice to the Company by Four
Corners of the same.
3. Certain Agreements of the Company. The Company hereby covenants and
---------------------------------
agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will,
-------------------------
upon issuance in accordance with the terms of this Warrant, be validly issued,
fully paid, and nonassessable and free from all liens, claims and encumbrances.
(b) Reservation of Shares. During the Exercise Period,
-----------------------
the Company shall at all times have authorized, and reserved for the purpose of
issuance upon exercise of this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise in full of the shares of Common Stock listed
on the face of this Warrant.
(c) Certain Actions Prohibited. The Company will not,
--------------------------
by amendment of its charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may reasonably be requested by the holder of
this Warrant in order to protect the economic benefit inuring to the holder
hereof and the exercise privilege of the holder of this Warrant against dilution
or other impairment, consistent with the tenor and purpose of this Warrant.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect, and (ii) will
take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant.
(d) Successors and Assigns. This Warrant will be binding
------------------------
upon the Company and any successors. Successors shall include, without
limitation, parents or
5
subsidiaries, any corporation or corporations acquiring, directly or indirectly,
all or substantially all of the assets or stock of the Company, whether by
merger, consolidation, purchase, lease or otherwise, and such successor shall
thereafter be deemed the "Company" for the purpose hereof.
4. Antidilution Provisions. The Exercise Price hereunder shall be
-----------------------
subject to adjustment from time to time as provided in this Section 4.
(a) Subdivision or Combination of Common Stock. If the
-----------------------------------------------
Company subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) its shares of Common Stock into a
greater number of shares, then, after the date of record for effecting such
subdivision, the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares for which this
Warrant may be exercised shall be proportionately increased. If the Company
combines (by reverse stock split, recapitalization, reorganization,
reclassification or otherwise) its shares of Common Stock into a smaller number
of shares, then, after the date of record for effecting such combination, the
Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares for which this
Warrant may be exercised shall be proportionately reduced.
(b) Consolidation, Merger or Sale. In case of any
--------------------------------
consolidation of the Company with, or merger of the Company into, any other
corporation, or in case of any sale or conveyance of all or substantially all of
the assets of the Company other than in connection with a plan of complete
liquidation of the Company, then as a condition of such consolidation, merger or
sale or conveyance, adequate provision will be made whereby the holder hereof
will have the right to acquire and receive upon exercise of this Warrant in lieu
of the shares of Common Stock immediately theretofore acquirable upon the
exercise of this Warrant, such shares of stock, securities, cash or assets as
may be issued or payable with respect to or in exchange for the number of shares
of Common Stock immediately theretofore acquirable and receivable upon exercise
of this Warrant had such consolidation, merger or sale or conveyance not taken
place. In any such case, the Company will make appropriate provision to ensure
that the provisions of this Section 4 hereof will thereafter be applicable as
nearly as may be in relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not effect any
consolidation, merger or sale or conveyance unless prior to the consummation
thereof, the successor corporation (if other than the Company) assumes by
written instrument the obligations under this Warrant and the obligations to
deliver to the holder hereof such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be entitled to acquire.
Notwithstanding the foregoing, in the event of any consolidation of the Company
with, or merger of the Company into, any other corporation, or the sale or
conveyance of all or substantially all of the assets of the Company, where the
consideration consists solely of cash, the holder hereof shall receive, in
connection with such transaction, cash consideration equal to the fair market
value of this Warrant as determined in accordance with customary valuation
methodology used in the investment banking industry.
6
(c) Distribution of Assets. In case the Company shall
------------------------
declare or make any distribution of its assets (or rights to acquire its assets)
to holders of Common Stock as a partial liquidating dividend, stock repurchase
by way of return of capital or otherwise (including any dividend or distribution
to the Company's shareholders of cash or shares (or rights to acquire shares) of
capital stock of a subsidiary) (a "Distribution"), at any time, then the holder
hereof shall be entitled upon exercise of this Warrant for the purchase of any
or all of the shares of Common Stock subject hereto, to receive the amount of
such assets (or rights) which would have been payable to the holder had such
holder been the holder of such shares of Common Stock on the record date for the
determination of shareholders entitled to such Distribution. If the Company
distributes rights, warrants, options or any other form of convertible
securities and the right to exercise or convert such securities would expire in
accordance with their terms prior to the expiration of the Exercise Period, then
the terms of such securities shall provide that such exercise or convertibility
right shall remain in effect until 30 days after the date the holder hereof
receives such securities pursuant to the exercise hereof.
(d) Notice of Adjustment. Upon the occurrence of any event
----------------------
which requires any adjustment of the Exercise Price, then, and in each such
case, the Company shall give notice thereof to the holder hereof, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(e) Other Notices. In case at any time:
--------------
(i) the Company shall declare any dividend upon the
Common Stock payable in shares of stock of any class or make any other
distribution (other than dividends or distributions payable in cash out of
retained earnings consistent with the Company's past practices with respect to
declaring dividends and making distributions) to the holders of the Common
Stock;
(ii) the Company shall offer for subscription pro rata
to the holders of the Common Stock any additional shares of stock of any class
or other rights;
(iii) there shall be any capital reorganization of the
Company, or reclassification of the Common Stock, or consolidation or merger of
the Company with or into, or sale of all or substantially all of its assets to,
another corporation or entity; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in each such case, the Company shall give to the holder of this
Warrant (a) notice of the date or estimated date on which the books of the
Company shall
7
close or a record shall be taken for determining the holders of Common Stock
entitled to receive any such dividend, distribution, or subscription rights or
for determining the holders of Common Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, notice of the date (or, if not then known, a reasonable estimate
thereof by the Company) when the same shall take place. Such notice shall also
specify the date on which the holders of Common Stock shall be entitled to
receive such dividend, distribution, or subscription rights or to exchange their
Common Stock for stock or other securities or property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice shall be given at
least thirty (30) days prior to the record date or the date on which the
Company's books are closed in respect thereof. Failure to give any such notice
or any defect therein shall not affect the validity of the proceedings referred
to in clauses (i), (ii), (iii) and (iv) above.
(f) Certain Events. If any event occurs of the type
---------------
contemplated by the adjustment provisions of this Section 4 but not expressly
provided for by such provisions, the Company will give notice of such event as
provided in Section 4(e) hereof, and the Company's Board of Directors will make
an appropriate adjustment in the Exercise Price and the number of shares of
Common Stock acquirable upon exercise of this Warrant at each such Exercise
Price so that the rights of the holder shall be neither enhanced nor diminished
by such event.
5. Issue Tax. The issuance of certificates for Warrant Shares
----------
upon the exercise of this Warrant shall be made without charge to the holder of
this Warrant or such shares for any issuance tax or other costs in respect
thereof, provided that the Company 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 the holder of this Warrant. The Company
shall have no responsibility for any income (or other) taxes payable by the
Holder of this Warrant upon sale of the Warrant Shares or otherwise.
6. No Rights or Liabilities as a Shareholder. This Warrant shall
------------------------------------------
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, 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 Company, whether such liability is asserted by the Company or by
creditors of the Company.
7. Transfer, Exchange and Replacement of Warrant.
--------------------------------------------------
(a) Restriction on Transfer. This Warrant and the rights
-------------------------
granted to the holder hereof shall not be transferable, in whole or in part.
8
(b) Warrant Exchangeable for Different Denominations. This
--------------------------------------------------
Warrant is exchangeable, upon the surrender hereof by the holder hereof at the
office or agency of the Company referred to in Section 7(e) below, for new
Warrants of like tenor of different denominations representing in the aggregate
the right to purchase the number of shares of Common Stock which may be
purchased hereunder, each of such new Warrants to represent the right to
purchase such number of shares (at the Exercise Price therefor) as shall be
designated by the holder hereof at the time of such surrender.
(c) Replacement of Warrant. Upon receipt of evidence
------------------------
reasonably 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, at its expense, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of
---------------------------------
this Warrant in connection with any transfer, exchange, or replacement as
provided in this Section 7, this Warrant shall be promptly canceled by the
Company. The Company shall pay all expenses (other than legal expenses, if any,
incurred by the Holder or transferees) and charges payable in connection with
the preparation, execution, and delivery of Warrants pursuant to this Section 7.
The Company shall indemnify and reimburse the holder of this Warrant for all
losses and damages arising as a result of or related to any breach of the terms
of this Warrant, including costs and expenses (including legal fees) incurred by
such holder in connection with the enforcement of its rights hereunder.
(e) Warrant Register. The Company shall maintain, at its
-----------------
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the person in whose name
this Warrant has been issued, as well as the name and address of each transferee
and each prior owner of this Warrant.
8. Representations And Warranties. This Warrant is issued and
--------------------------------
delivered on the basis of the following:
(a) Authorization and Delivery. This Warrant has been duly
----------------------------
authorized and executed by the Company and when delivered will be the valid and
binding obligation of the Company enforceable in accordance with its terms;
(b) No Inconsistency. The execution and delivery of this
-----------------
Warrant are not, and the issuance of the shares of Common Stock upon exercise of
this Warrant in accordance with the terms hereof will not be, inconsistent with
the Company's Certificate of Incorporation or by-laws, do not and will not
contravene any law, governmental rule or regulation, judgment or order
applicable to the Company, and do not and will not contravene any provision of,
or constitute a default under, any indenture, mortgage, contract or other
instrument of which the Company is a party or by which it is
9
bound or require the consent or approval of, the giving of notice to, the
registration with the taking of any action in respect of or by, any Federal,
state or local government authority or agency or other person.
9. Notices. Any notices required or permitted to be given under
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the terms of this Warrant shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier, or by confirmed telecopy, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Measurement Specialties, Inc.
000 Xxxxx 00 Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxx
If to the Holder:
Four Corners Capital Partners, LP
00000 Xxxx Xxxx #0000
Xxxxxx, XX 00000
Telephone:
Facsimile:
Attention: Xxxxx Xxxxxxx
If to the holder, at such address as such holder shall have provided in
writing to the Company, or at such other address as such holder furnishes by
notice given in accordance with this Section 10.
10. Governing Law; Jurisdiction. This Warrant shall be governed
-----------------------------
by and construed in accordance with the laws of the State of New Jersey. The
Company irrevocably consents to the jurisdiction of the United States federal
courts and state courts located in the County of Essex, State of New Jersey, in
any suit or proceeding based on or arising under this Warrant and irrevocably
agrees that all claims in respect of such suit or proceeding may be determined
in such courts. The Company irrevocably waives any objection to the laying of
venue and the defense of an inconvenient forum to the maintenance of such suit
or proceeding. The Company further agrees that service of process upon the
Company mailed by certified or registered mail shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
Nothing herein shall affect the holder's right to serve process in any other
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manner permitted by law. The Company agrees that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
11. Miscellaneous.
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(a) Amendments. This Warrant and any provision hereof may
----------
only be amended by an instrument in writing signed by the Company and the holder
hereof.
(b) Descriptive Headings. The descriptive headings of the
---------------------
several Sections of this Warrant are inserted for purposes of reference only,
and shall not affect the meaning or construction of any of the provisions
hereof.
(c) Cashless Exercise. To the extent vested pursuant to
------------------
Section 2 hereof, this Warrant may be exercised at any time during the Exercise
Period by presentation and surrender of this Warrant to the Company at its
principal executive offices with a written notice of the holder's intention to
effect a cashless exercise, including a calculation of the number of shares of
Common Stock to be issued upon such exercise in accordance with the terms hereof
(a "Cashless Exercise"). In the event of a Cashless Exercise, in lieu of paying
the Exercise Price in cash, the holder shall surrender this Warrant for that
number of shares of Common Stock determined by multiplying the number of Warrant
Shares to which it would otherwise be entitled by a fraction, the numerator of
which shall be the difference between the then current Market Price (as defined
below) of a share of the Common Stock on the date of exercise and the Exercise
Price, and the denominator of which shall be the then current Market Price per
share of Common Stock. For purposes of this Section 11(c), the term "MARKET
PRICE" means the average closing price of a share of Common Stock on a
nationally recognized stock exchange for the five trading days preceding the
date of exercise of this Warrant.
(d) Business Day. For purposes of this Warrant, the term
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"BUSINESS DAY" means any day, other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by
law, regulation or executive order to close.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
MEASUREMENT SPECIALTIES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------
Xxxx Xxxxxxx
Vice President and Chief Financial
Officer
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FORM OF EXERCISE AGREEMENT
(TO BE EXECUTED BY THE HOLDER IN ORDER TO EXERCISE THE WARRANT)
To: Measurement Specialties, Inc.
000 Xxxxx 00 Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
The undersigned hereby irrevocably exercises the right to purchase
________ shares of the Common Stock of Measurement Specialties, Inc., a
corporation organized under the laws of the State of New Jersey (the "COMPANY"),
evidenced by the attached Warrant, and herewith [makes payment of the Exercise
Price with respect to ____ shares][elects to effect a Cashless Exercise (as
defined in Section 11(c) of such Warrant)], all in accordance with the
conditions and provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise
dispose of any Common Stock obtained on exercise of the Warrant, except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any state securities laws. The undersigned hereby requests that
the Company cause its transfer agent to issue and deliver to the undersigned
physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
_____________________________________
_____________________________________
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth herein
below, to:
Name of Assignee Address No. of Shares
------------------ ------- ---------------
, and hereby irrevocably constitutes and appoints
_____________________________________ as agent and attorney-in-fact to transfer
said Warrant on the books of the within-named corporation, with full power of
substitution in the premises.
Dated: _____________________, ____
In the presence of
__________________
Name: _____________________________________
Signature: ________________________________
Title of Signing Officer or Agent (if any):
___________________________________________
Address: __________________________________
Note: The above signature should correspond
exactly with the name on the face of the
within Warrant
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