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Exhibit 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED
OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THE
SECURITIES ACT AND THE SECURITIES LAWS OF ANY APPLICABLE STATES OR AN OPINION OF
COUNSEL IS OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
NO. _____
WARRANT TO PURCHASE
_________ SHARES OF
COMMON STOCK
WARRANT TO PURCHASE
COMMON STOCK
OF
CRAGAR INDUSTRIES, INC.
This certifies that, for value received, _______________________________,
or its registered assigns (collectively, the "Holder"), is entitled to purchase
from Cragar Industries, Inc., a Delaware corporation (the "Company"), subject to
the terms and conditions set forth below, at any time on or after 9:00 A.M.,
Eastern time, on the Issue Date (as defined below) of this Warrant, and before
5:00 P.M., Eastern time, on the Expiration Date (as defined below), the number
of fully paid and nonassessable shares of common stock, $.01 par value, of the
Company ("Common Stock") stated above at the Purchase Price (as defined below).
The Purchase Price and the number of shares purchasable hereunder are subject to
adjustment as provided below.
ARTICLE I
DEFINITIONS
SECTION 1.1
(a) The term "Business Day" as used in this Warrant means a day
other than a Saturday, Sunday or other day on which national banking
associations whose principal offices are located in the State of Delaware are
authorized by law to remain closed.
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(b) The term "Certificate of Designation" as used in this Warrant
means the Certificate of Designation attached as Exhibit [ ] to the Series A
Convertible Preferred Stock Purchase Agreement dated ________________, 199_,
between the Company and the Purchasers (as defined in said Agreement).
(c) The term "Expiration Date" as used in this Warrant means the
date of expiration of the thirty-six (36) month period immediately after the
Issue Date (as defined below), or, if that day is not a Business Day, as defined
above, on the next following Business Day.
(d) The term "Issue Date" as used in this Warrant means the date of
issuance of this Warrant.
(e) The term "Purchase Price" as used in this Warrant means 120% of
the Series A Fixed Price (as determined in the Certificate of Designation, as
adjusted from time to time pursuant to such Certificate of Designation) per
Warrant Share (as defined below), as may be adjusted pursuant to the terms of
Article III hereof.
(f) The term "Warrant" as used in this Warrant means this Warrant
and Warrants of like tenor to purchase up to _______________ Warrant Shares (as
defined below).
(g) The term "Warrant Shares" as used in this Warrant means the
shares of Common Stock or other securities issuable upon exercise of the
Warrants.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
SECTION 2.1 This Warrant may be exercised at any time after 9:00 A.M.,
Eastern time on the Issue Date, and before 5:00 P.M., Eastern time, on the
Expiration Date.
SECTION 2.2 (a) The Holder may exercise this Warrant in whole or in part
(but not in denominations of fewer than 5,000 Warrant Shares except upon an
exercise of the Warrant with respect to the remaining balance of Warrant Shares
purchasable hereunder at the time of exercise) by surrender of this Warrant,
with the Purchase Form (attached hereto) duly executed, to the Company at its
corporate office in Phoenix, Arizona, together with the applicable Purchase
Price of each Warrant Share being purchased in lawful money of the United
States, or by certified check or official bank check payable in United States
dollars to the order of the Company, subject to compliance with all the other
conditions set forth in this Warrant.
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(b) Upon receipt of this Warrant with the Purchase Form duly
executed and accompanied by payment of the aggregate Purchase Price for the
shares of Common Stock for which this Warrant is being exercised, the Company
shall cause to be issued certificates for the total number of whole shares (as
provided in Section 3.2 hereof) of Common Stock for which this Warrant is being
exercised in such denominations as are required for delivery to the Holder, and
the Company will promptly deliver those certificates to the Holder.
(c) If the Holder exercises this Warrant with respect to fewer than
all the shares of Common Stock that may be purchased by exercise of this
Warrant, the Company will execute a new Warrant for the balance of the shares of
Common Stock that may be purchased by exercise of this Warrant and deliver that
new Warrant to the Holder.
(d) The Company covenants and agrees that it will pay when due any
and all taxes which may be payable in respect of the issue of this Warrant, or
the issue of any Warrant Shares upon the exercise of this Warrant other than
income or similar taxes of any kind imposed upon the Holder of this Warrant. The
Company will not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issuance or delivery of this Warrant or
of Warrant Shares in a name other than that of the Holder at the time of
surrender, and until the payment of any such tax, the Company will not be
required to transfer this Warrant or issue the Warrant Shares which are subject
to the tax.
ARTICLE III
ADJUSTMENT OF PURCHASE PRICE, NUMBER
OF SHARES OR NUMBER OF WARRANTS
SECTION 3.1 The Purchase Price, the number and type of securities issuable
on exercise of this Warrant and the number of Warrants outstanding are subject
to adjustment from time to time as follows:
(a) If the Company issues any shares of its Common Stock as a
dividend on its Common Stock, the Purchase Price then in effect will be
proportionately reduced at the opening of business on the day following the date
fixed for the determination of shareholders entitled to receive the dividend or
other distribution. For example, if the Company distributes one share of Common
Stock as a dividend on each outstanding share of Common Stock the Purchase Price
would be reduced by 50%. If the Company issues as a dividend on its Common Stock
any securities which are convertible into, or exchangeable for, shares of its
Common Stock, such dividend will be treated as a dividend of the Common Stock
into which the securities may be converted, or for which they may be exchanged,
and the Purchase Price shall be proportionately reduced.
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(b) If the outstanding shares of Common Stock are subdivided into a
greater number of shares of Common Stock, then the Purchase Price will be
proportionately reduced at the opening of business on the day following the day
when the subdivision becomes effective, and if the outstanding shares of the
Common Stock are combined into a smaller number of shares of Common Stock, the
Purchase Price will be proportionately increased at the opening of business on
the day following the day when the combination becomes effective.
(c) If by reason of a merger, consolidation, reclassification or
similar corporate event, the holders of the Common Stock receive securities or
assets other than Common Stock, upon exercise of this Warrant after that
corporate event, the Holder of this Warrant will be entitled to receive the
securities or assets the Holder would have received if the Holder had exercised
this Warrant immediately before the first such corporate event and not disposed
of the securities or assets received as a result of that or any subsequent
corporate event.
SECTION 3.2 Upon each adjustment of the applicable Purchase Price pursuant
to Section 3.1 hereof, this Warrant will after the adjustment evidence the right
to purchase, at the adjusted Purchase Price, the number of shares (calculated to
the nearest hundredth) obtained by (i) multiplying the number of shares issuable
on exercise of this Warrant immediately prior to the adjustment by the Purchase
Price in effect immediately prior to the adjustment and (ii) dividing the
resulting product by the Purchase Price in effect immediately after the
adjustment. However, the Company will not be required to issue a fractional
share or to make any payment in lieu of issuing a fractional share.
SECTION 3.3 Whenever the Purchase Price or the number of shares or type of
securities issuable on exercise of this Warrant is adjusted as provided in this
Article III, the Company will compute the adjusted Purchase Price and the
adjusted number of Warrant Shares and will prepare a certificate signed by its
President or any Vice President, and by its Treasurer or Secretary setting forth
the adjusted Purchase Price and the adjusted number of Warrant Shares and
showing in reasonable detail the facts upon which the adjustments were based and
mail a copy of that certificate to the Holder.
SECTION 3.4 If at any time when this Warrant is outstanding the Company:
(a) declares a dividend (or authorizes any other distribution) on
its Common Stock payable otherwise than in cash out of its undistributed net
income;
(b) authorizes the granting to the holders of its Common Stock of
rights to subscribe for or purchase any shares of its capital stock or assets;
(c) authorizes a reclassification, split or combination of the
Common Stock, or a consolidation or merger to which the Company is a party or a
sale or transfer of all or substantially all the assets of the Company; or
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(d) authorizes a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company will mail written notice of such action to the Holder at least 20
days prior to the record date, or other date, for determining the shareholders
entitled to receive the dividend, distribution or rights, or the securities or
other property deliverable as a result of such action.
SECTION 3.5 The form of this Warrant need not be changed because of any
change in the Purchase Price or in the number of Warrant Shares, and Warrants
issued after that change may continue to describe the Purchase Price and the
number of Warrant Shares which were described in this Warrant as initially
issued.
SECTION 3.6 Before taking any action which would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the Common
Stock, the Company will take all corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock at the adjusted
Purchase Price.
ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANT HOLDER
SECTION 4.1 If this Warrant is duly exercised, the Holder will for all
purposes be deemed to become the holder of record of the Warrant Shares as to
which this Warrant is exercised on, and the certificate for such shares will be
dated the date this Warrant is surrendered for exercise and the Purchase Price
paid in accordance with Section 2.2 hereof, except that if that date is not a
Business Day, the Holder will be deemed to become the record holder of the
Warrant Shares on, and the certificate will be dated, the next succeeding
Business Day. The Holder will not be entitled to any rights as a holder of the
Warrant Shares, including the right to vote and to receive dividends, until the
Holder becomes or is deemed to become the holder of such shares pursuant to the
terms hereof.
SECTION 4.2 (a) The Company covenants and agrees that it will at all times
reserve and keep available for the exercise of this Warrant a sufficient number
of authorized but unissued shares of Common Stock to permit the exercise in full
of this Warrant.
(b) Prior to the issuance of any shares of Common Stock upon
exercise of this Warrant, the Company shall use its reasonable best efforts to
cause those shares to be authorized for listing, to the extent not previously
authorized for listing, on any securities exchange or trading system upon which
the Common Stock is then listed.
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(c) The Company covenants that all shares of Common Stock issued
upon exercise of this Warrant and against payment of the Purchase Price will be
validly issued, fully paid and nonassessable.
SECTION 4.3 Notices to the Holder relating to this Warrant will be
effective on the earliest of actual receipt or the third business day after
mailing by first class mail (which shall be certified or registered, return
receipt requested), postage prepaid, addressed to the Warrant Holder at the
address shown on the books of the Company.
ARTICLE V
TREATMENT OF WARRANT HOLDER
SECTION 5.1 Prior to presentation of this Warrant for registration of
transfer, the Company may treat the Holder for all purposes as the owner of this
Warrant and the Company will not be affected by any notice to the contrary.
ARTICLE VI
COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS
SECTION 6.1 Any transfer permitted under this Warrant will be made by
surrender of this Warrant to the Company at its principal office with the Form
of Assignment (attached hereto) duly executed and funds sufficient to pay any
transfer tax. In such event the Company will, without charge, execute and
deliver a new Warrant to and in the name of the assignee named in the instrument
of assignment and this Warrant will promptly be canceled, and if the assignor
does not transfer all of its Warrants hereunder, the Company will execute and
deliver a new Warrant to and in the name of the assignor representing the
remaining Warrants held by the assignor.
SECTION 6.2 This Warrant may be divided or combined with other Warrants
which carry the same rights upon presentation of them at the principal office of
the Company together with a written notice signed by the Holder, specifying the
names and denominations in which new Warrants are to be issued.
SECTION 6.3 Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, or, in the case of mutilation, upon surrender of
the mutilated Warrant, the Company will execute and deliver a new Warrant
bearing the same terms and date as the lost, stolen or destroyed Warrant, which
will thereupon become void.
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ARTICLE VII
REGISTRATION UNDER THE SECURITIES ACT
SECTION 7.1 The Company will file, as soon as practicable after the Issue
Date, a shelf registration statement (the "Registration Statement") on Form S-3
or other applicable form covering the resale of the shares of Common Stock
issuable upon exercise of the Warrant granted hereunder and thereafter shall use
its best efforts to cause the Registration Statement to be declared effective as
soon as practicable following such filing and to maintain such effectiveness for
a period of two (2) years from the Issue Date; provided, however, that the
Company shall have the right to suspend the sale of Common Stock underlying the
Warrant pursuant to the Registration Statement, upon notice to the Holder, if
(i) in the opinion of counsel for the Company, the Company would thereby be
required to disclose information not otherwise then required by law to be
publicly disclosed and (ii) in the good faith judgment of the Board of Directors
of the Company, such disclosure could adversely affect any material corporate
development or business transaction contemplated by the Company. The Company
shall use its best efforts to minimize the period of time of non-conversion of
the Warrant Shares; provided, however, that the foregoing shall not require the
Company to alter its actions with respect to such corporate development or
business transaction. At the time of any sale of Common Stock underlying the
Warrant, the Company will deliver a current prospectus under the Registration
Statement to the Holder.
The Company shall cooperate with the Holder in connection with the
qualification of the Warrant Shares under the securities and Blue Sky laws of
such jurisdictions as the Holder may request; provided, however, that neither
the Company nor its subsidiaries shall be required in connection therewith to
qualify as a foreign corporation where they are not now so qualified.
SECTION 7.2 With respect to the Registration Statement, all fees, costs
and expenses of and incidental to such registration shall be borne by the
Company. Notwithstanding the foregoing, the fees and expenses of counsel and
accountants for the Holder shall be borne by the Holder.
SECTION 7.3 (a) To the extent permitted by law, the Company will indemnify
and hold harmless the Holder and each officer, director and agent of the Holder
and each person who controls the Holder within the meaning of the Securities Act
and the Securities Exchange Act of 1934 (the "Exchange Act"), against any
losses, claims, expenses, damages or liabilities (including reasonable
attorneys' fees), joint or several, to which the Holder or controlling person
become subject under the Securities Act, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any prospectus contained therein
which is utilized, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse
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the Holder and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, expense, damage, liability or action; provided, however, that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, expense, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information relating to the Holder furnished in writing
to the Company by the Holder or such controlling person.
(b) To the extent permitted by law, the Holder will indemnify and
hold harmless the Company and each officer, director and agent of the Company
and each person who controls the Company or underwriter within the meaning of
the Securities Act and the Exchange Act, each officer of the Company who signs
the Registration Statement and each director of the Company, against all losses,
claims, expenses, damages or liabilities (including reasonable attorneys' fees),
joint or several, to which the Company or such officer or director or
controlling person become subject under the Securities Act, but only insofar as
such losses, claims, expenses, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact made in reliance on and in conformity with
information relating to the Holder furnished in writing to the Company expressly
for use in the Registration Statement. The Holder's liability shall in no event
exceed the gross proceeds received by the Holder in connection with the sale of
the Warrant and the Warrant Shares.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof; provided, however, that any
failure to give such notice will not waive any rights of the indemnified party
except to the extent the rights of the indemnified party are materially
prejudiced. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 7.3 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that (i) if the indemnifying party has failed to assume the
defense and employ counsel or (ii) if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be reasonable defenses available
to it that are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, then the
indemnified party shall have the right to select separate counsel and to assume
such legal defense and otherwise to participate in the defense of such action,
with the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred.
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(d) If the indemnification provided for in this Section 7.3 is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, expenses, damages or liabilities or actions in respect
thereof, then each indemnifying party shall in lieu of indemnifying such
indemnified party contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, expenses, damages, liabilities or
actions in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and the Holder, on the other, in connection with
the statements or omissions which resulted in such losses, claims, expenses,
damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any required notice. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or any affiliate thereof, on the one hand, or the Holder or any affiliate
thereof, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or present such statement or omission.
The Company and the Holder agree that it would not be just and equitable if
contribution pursuant to this Section 7.3(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7.3(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, expenses, damages, liabilities or actions in respect thereof referred to
above in this Section 7.3(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holder's liability shall in no
event exceed the gross proceeds received by the Holder in connection with the
sale of the Warrant Shares.
ARTICLE VIII
OTHER MATTERS
SECTION 8.1 (a) This Warrant and any Warrant Shares may not be sold,
transferred, pledged, hypothecated or otherwise disposed of except as follows:
(i) to a person who, in the opinion of counsel to the Company, is a person to
whom this Warrant or the Warrant Shares may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act with respect thereto, and then only against receipt of an
agreement of such person to comply with the provisions of this Section 8.1(a)
with respect to any resale or other disposition of such securities; or (ii) to
any person upon delivery of a prospectus then meeting the requirements of the
Securities Act relating to such securities and the offering thereof for such
sale or disposition, and thereafter to all successive assignees.
(b) Unless the Warrant Shares have been registered under the
Securities Act, upon exercise of any of the Warrant and the issuance of any of
the Warrant Shares, all certificates representing Warrant Shares shall bear on
the face thereof substantially the following legend:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, nor the
securities laws of any state, and may not be sold, offered for sale,
assigned, transferred or otherwise disposed of, unless registered
pursuant to the provisions of that Act and any applicable state
securities laws or unless an opinion of counsel to the issuer is
obtained stating that such disposition is in compliance with an
available exemption from such registration requirements.
SECTION 8.2 All the covenants and provisions of this Warrant by or for the
benefit of the Company will bind and inure to the benefit of its successors and
assigns.
SECTION 8.3 All notices and other communications under this Warrant must
be in writing. Any notice or communication to the Company will be effective upon
the earlier of actual receipt or the third business day after mailing by first
class mail (which shall be certified or registered, return receipt requested),
postage prepaid, addressed (until another address is designated by the Company)
as follows:
Cragar Industries, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: __________________
__________________
Any notice or demand authorized by this Warrant to be given or made by the
Company to the Holder must be given in accordance with Section 4.3.
SECTION 8.4 The validity, interpretation and performance of this Warrant
will be governed by the laws of the State of Arizona. This Warrant shall be
subject to the exclusive jurisdiction of the courts of the State of Arizona. The
parties agree that any breach of any term or condition of this Warrant shall be
deemed to be a breach occurring in the State of Arizona by virtue of a failure
to perform an act required to be performed in the State of Arizona and
irrevocably and expressly agree to submit to the jurisdiction of the courts of
the State of Arizona for the purpose of resolving any disputes among the parties
relating to this Warrant or the transactions contemplated hereby. The parties
irrevocably waive, to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Warrant, or any judgment entered
by any court in respect hereof brought in the State of Arizona, and further
irrevocably waive any claim that any suit, action or proceeding brought in the
State of Arizona has been brought in an inconvenient forum.
SECTION 8.5 Nothing in this Warrant will give any person, corporation or
other entity other than the Company and the Holder(s) any right or claim under
this Warrant, and all
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agreements in this Warrant will be for the sole benefit of the Company, the
Holder(s) and their respective successors.
SECTION 8.6 The Article headings in this Warrant are for convenience only,
are not part of this Warrant and will not affect the interpretation of its
terms.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company as
of the _____ day of __________________, 199__.
CRAGAR INDUSTRIES, INC.
By:_____________________________________
Name:
Title:
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PURCHASE FORM
To Be Executed By The Warrant Holder
To Exercise The Warrant In Whole Or In Part:
To: Cragar Industries, Inc.
The undersigned (___________________________)
Please insert Social Security or other
identifying number of Holder
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder, ___________________ shares of
Common Stock of Cragar Industries, Inc. in the amount of $__________. The
undersigned requests that certificates for those shares of Common Stock be
issued as follows:
Name:___________________________________
Address:________________________________
Deliver to:_____________________________
Address:________________________________
and that, if the number of shares of Common Stock is not all the shares of
Common Stock purchasable by exercise of the Warrant, that a new Warrant for the
balance of the shares of Common Stock purchasable under the within Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated below:
Address:________________________________
Date:___________________________________
Signature:__________________________________
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FORM OF ASSIGNMENT
(To Be Executed Only Upon An Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto ______________________________ the right to purchase ________ shares of
Common Stock of Cragar Industries, Inc. evidenced by the within Warrant.
Signature___________________________________
Signature Guaranteed:
______________________________
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