INITIAL WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON STOCK
OF
SVI HOLDINGS, INC.
December 22, 2000
No. W- 1
This certifies that Xxxxx Xxxxxxxx Partners, L.P.(the "Holder") is entitled,
subject to the terms and conditions of this Warrant, to purchase from SVI
Holdings, a Nevada corporation (the "Company"), all or any part of an aggregate
of 705,883 shares of the Company's authorized and unissued Common Stock, par
value $.0001 (the "Warrant Stock"), at the Warrant Price (as defined herein),
upon surrender of this Warrant at the principal offices of the Company, together
with a duly executed subscription form in the form attached hereto as Exhibit 1
and simultaneous payment of the Warrant Price for each share of Warrant Stock so
purchased in lawful money of the United States, unless exercised in accordance
with the provisions of Section 2.6 of this Warrant. The Holder may exercise the
Warrant at any time after the date of this Warrant and prior to the second
anniversary of the date hereof, subject to the provisions of Section 2.5 hereof
(the "Expiration Date").
This Warrant is issued pursuant to that certain Common Stock Purchase
Agreement dated as of December 22, 2000 (the "Purchase Agreement"), by and among
the Company, the Holder and certain of the other investors listed on the
Schedule of Investors attached to the Purchase Agreement (the "Investors").
1. DEFINITIONS. The following definitions shall apply for purposes of
this Warrant:
1.1 "Acquisition" means any consolidation, merger or
reorganization of the Company with or into any other corporation or other entity
or person, or any other corporate reorganization, in which the stockholders of
the Company immediately prior to such consolidation, merger or reorganization,
own less than fifty percent of the Company's voting power immediately after such
consolidation, merger or reorganization, or any transaction or series of related
transactions to which the Company is a party in which in excess of fifty percent
of the Company's voting power is transferred, excluding any consolidation,
merger or reorganization effected exclusively to change the domicile of the
Company.
1.2 "Asset Transfer" means a sale, lease or other disposition
of all or substantially all of the assets of the Company.
1.3 "Company" means the "Company" as defined above and
includes any corporation or other entity that succeeds to or assumes the
obligations of the Company under this Warrant.
1.4 "Fair Market Value" of a share of Warrant Stock means (i)
if the Common Stock is traded on a securities exchange, the average of the
closing price each day over the thirty consecutive day period ending three days
before the day the Fair Market Value of the securities is being determined, (ii)
if the Common Stock is actively traded over-the counter, the average of the
closing bid and asked prices quoted on the NASDAQ system (or similar system)
each day over the thirty consecutive day period ending three days before the day
the Fair Market Value of the securities is being determined, or (iii) if at any
time the Common Stock is not listed on any securities exchange or quoted in the
NASDAQ System or the over-the-counter market, then the Fair Market Value
determined by the Company's Board of Directors in good faith.
1.5 "Holder" means the "Holder" as defined above and includes
any transferee who shall at the time be the registered holder of this Warrant.
1.6 "Warrant" means this Warrant and any warrant(s) delivered
in substitution or exchange therefor, as provided herein.
1.7 "Warrant Price" means $1.50 per share of Warrant Stock.
The Warrant Price is subject to adjustment as provided herein.
1.8 "Warrant Stock" means the Common Stock of the Company. The
number and character of shares of Warrant Stock are subject to adjustment as
provided herein and the term "Warrant Stock" shall include stock and other
securities and property at any time receivable or issuable upon exercise of this
Warrant in accordance with its terms.
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2. EXERCISE.
2.1 METHOD OF EXERCISE. Subject to the terms and conditions of
this Warrant, the Holder may exercise the purchase rights represented by this
Warrant in whole or in part, at any time or from time to time, on or after the
date hereof and before the Expiration Date, by surrendering this Warrant at the
principal offices of the Company, with the subscription form attached hereto
duly executed by the Holder, and payment of an amount equal to the product
obtained by multiplying (i) the number of shares of Warrant Stock so purchased
by (ii) the Warrant Price, as specified in Section 2.2 below.
2.2 FORM OF PAYMENT. Except as provided in Section 2.6,
payment may be made by (i) a check payable to the Company's order, (ii) wire
transfer of funds to the Company, (iii) cancellation of indebtedness of the
Company to the Holder, or (iv) any combination of the foregoing.
2.3 PARTIAL EXERCISE. Upon a partial exercise of this Warrant,
this Warrant shall be surrendered by the Holder and replaced with a new Warrant
or Warrants of like tenor for the balance of the shares of Warrant Stock
purchasable under the Warrant surrendered upon such purchase. The Warrant or
Warrants will be delivered to the Holder thereof within a reasonable time.
2.4 NO FRACTIONAL SHARES. No fractional shares may be issued
upon any exercise of this Warrant, and any fractions shall be rounded down to
the nearest whole number of shares. If upon any exercise of this Warrant a
fraction of a share results, the Company will pay an amount equal to the such
fraction multiplied by the Fair Market Value of a share of Warrant Stock.
2.5 AUTOMATIC EXERCISE. Anything herein to the contrary
notwithstanding, this Warrant shall be callable by the Company as follows: (i)
50% of this Warrant shall be callable, in whole or in part, by the Company on
any date if (A) the closing price of the Warrant Stock, as listed on any
securities exchange or as quoted in the NASDAQ System, each day over a thirty
consecutive day period ending on such date is more than $2.00 per share of
Common Stock (as appropriately and proportionately adjusted to reflect any event
referred to in Section 4.1) and (B) on such date all of the "Registrable
Securities" or such other definition of securities entitled to registration
rights pursuant to the Investors' Rights Agreement dated as of December 22, 2000
(the Investors' Rights Agreement"), by and among the Company, the Holder and
certain other Investors shall be fully registered and saleable as provided
therein; and (ii) if the foregoing call has been fully exercised by the Company,
the remaining 50% of this Warrant shall be callable, in whole or in part, by the
Company on any date if (A) the closing price of the Warrant Stock, as listed on
any securities exchange or as quoted in the NASDAQ System, each day over a
thirty consecutive day period ending on such date is more than $3.00 per share
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of Common Stock (as appropriately and proportionately adjusted to reflect any
event referred to in Section 4.1) and (B) on such date all of the "Registrable
Securities" or such other definition of securities entitled to registration
rights pursuant to the Investors Rights Agreement shall be fully registered and
saleable as provided therein. Notwithstanding the foregoing, this Warrant shall
not be callable under either of the foregoing call provisions on any date that a
sale by any Investors would be subject to the "short-swing" profit rules under
Section 16 of the Securities Exchange Act of 1934, as amended. The Company may
exercise either of the foregoing call provisions by giving written notice to the
Holder of such exercise, specifying the affected portion(s) of this Warrant and
accompanied by evidence of the events giving rise to the call. The Holder shall
have thirty days after receipt of such notice to exercise the affected
portion(s) of this Warrant. In the event the Holder does not so exercise the
affected portion(s) of this Warrant within such thirty day period, such affected
portion(s) of this Warrant shall cease to be exercisable at the end of such
thirty day period.
2.6 NET EXERCISE ELECTION. The Holder may elect to convert all
or a portion of this Warrant, without the payment by the Holder of any
additional consideration, by the surrender of this Warrant or such portion to
the Company, with the net exercise election selected in the subscription form
attached hereto duly executed by the Holder, into up to the number of shares of
Warrant Stock that is obtained under the following formula:
X = Y (A-B)
-------
A
where X = the number of shares of Warrant Stock to be issued to the
Holder pursuant to this Section 2.6.
Y = the number of shares of Warrant Stock purchasable under
this Warrant, or if only a portion of the Warrant is being
exercised, the number of shares of Warrant Stock represented
by the portion of the Warrant being exercised.
A = the Fair Market Value of one share of Warrant Stock as at
the time the net exercise election is made pursuant to this
Section 2.6.
B = the Warrant Price.
3. ISSUANCE OF STOCK. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Warrant Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As soon as practicable, but in any event no later than three days
after such date, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
whole shares of Warrant Stock issuable upon such exercise. The Company covenants
and agrees that all shares of Warrant Stock that are issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable and free from all preemptive rights
of any stockholder, free of all taxes, liens and charges with respect to the
issue thereof and free and clear of any restrictions on transfer (other than
under the Act and state securities laws).
4. ADJUSTMENT PROVISIONS. The number and character of shares of Warrant
Stock issuable upon exercise of this Warrant (or any shares of stock or other
securities or property at the time receivable or issuable upon exercise of this
Warrant) and the Warrant Price for the Common Stock are subject to adjustment
upon the occurrence of the following events between the date this Warrant is
issued and the date it is exercised:
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4.1 ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS,
RECAPITALIZATIONS, ETC. The Warrant Price of this Warrant and the number of
shares of Warrant Stock issuable upon exercise of this Warrant (or any shares of
stock or other securities at the time issuable upon exercise of this Warrant)
shall each be appropriately and proportionally adjusted to reflect any stock
dividend, stock split, reverse stock split, combination of shares,
reclassification, recapitalization or other similar event affecting the number
of outstanding shares of Warrant Stock (or such other stock or securities).
4.2 ADJUSTMENT FOR OTHER DIVIDENDS AND DISTRIBUTIONS. In case
the Company shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution payable with respect to the Warrant Stock that is payable in (a)
securities of the Company (other than issuances with respect to which adjustment
is made under Section 4.1), or (b) assets (other than cash dividends paid or
payable solely out of retained earnings), then, and in each such case, the
Holder, upon exercise of this Warrant at any time after the consummation,
effective date or record date of such event, shall receive, in addition to the
shares of Warrant Stock issuable upon such exercise prior to such date, the
securities or such other assets of the Company to which the Holder would have
been entitled upon such date if the Holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in this
Warrant).
4.3 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER. In
case of any reorganization of the Company (or of any other corporation or
entity, the stock or other securities of which are at the time receivable on the
exercise of this Warrant), after the date of this Warrant, or in case, after
such date, the Company (or any such corporation or entity) shall consolidate
with or merge into another corporation or entity or convey all or substantially
all of its assets to another corporation or entity, then, and in each such case,
the Holder, upon the exercise of this Warrant (as provided in Section 2), at any
time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the stock or other securities or property to which the Holder
would have been entitled upon the consummation of such reorganization,
consolidation, merger or conveyance if the Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in this
Warrant, and the successor or purchasing corporation or entity in such
reorganization, consolidation, merger or conveyance (if other than the Company)
shall duly execute and deliver to the Holder a supplement hereto acknowledging
such corporation's or entity's obligations under this Warrant; and in each such
case, the terms of this Warrant shall be applicable to the shares of stock or
other securities or property receivable upon the exercise of this Warrant after
the consummation of such reorganization, consolidation, merger or conveyance.
4.4 NOTICE OF CERTAIN EVENTS AND ADJUSTMENTS. The Company
shall give thirty days prior written notice of the record date fixed for any
Acquisition, Asset Transfer or event referred to in Section 4.2 or 4.3. The
Company shall promptly give written notice of (i) each adjustment or
readjustment of the Warrant Price or the number of shares of Warrant Stock or
other securities issuable upon exercise of this Warrant and (ii) each adjustment
or readjustment of the price per share of Common Stock triggering the call
provisions set forth in Section 2.5. The notice shall describe the adjustment or
readjustment and show in reasonable detail the facts on which the adjustment or
readjustment is based.
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4.5 NO CHANGE NECESSARY. The form of this Warrant need not be
changed because of any adjustment in the Warrant Price or in the number of
shares of Warrant Stock issuable upon its exercise.
5. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Warrant does not by
itself entitle the Holder to any voting rights or other rights as a stockholder
of the Company. In the absence of affirmative action by the Holder to purchase
Warrant Stock by exercise of this Warrant, no provisions of this Warrant, and no
enumeration herein of the rights or privileges of the Holder, shall cause the
Holder to be a stockholder of the Company for any purpose.
6. ATTORNEYS' FEES. In the event any party is required to engage the
services of any attorneys for the purpose of enforcing this Warrant, or any
provision thereof, the prevailing party shall be entitled to recover its
reasonable expenses and costs in enforcing this Warrant, including attorneys'
fees.
7. TRANSFER. This Warrant may be transferred or assigned by the Holder
hereof in whole or in part, if, on the Company's reasonable request, the Holder
provides an opinion of counsel reasonably satisfactory to the Company that such
transfer does not require registration under the Act and the applicable state
securities law, except that this Warrant may be transferred by a Holder which is
a partnership or limited liability company to a partner, former partner, member,
former member or other affiliate of such partnership or limited liability
company, as the case may be, if (a) the transferee agrees in writing to be
subject to the terms of this Warrant; and (b) the Holder delivers notice of such
transfer to the Company. The rights and obligations of the Company and the
Holder under this Warrant shall be binding upon and benefit their respective
permitted successors, assigns, heirs, administrators and transferees.
8. LOSS OR MUTILATION. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership and the loss, theft, destruction
or mutilation of this Warrant, and of indemnity reasonably satisfactory to it,
and (in the case of mutilation) upon surrender and cancellation of this Warrant,
the Company will execute and deliver in lieu thereof a new Warrant of like
tenor.
9. RESERVATION OF WARRANT STOCK. If at any time the number of
authorized but unissued shares of the Warrant Stock shall not be sufficient to
effect the exercise of this Warrant, the Company will take all such corporate
action as may be necessary to increase its authorized but unissued shares of
Warrant Stock to such number of shares of Warrant Stock as shall be sufficient
for such purpose.
10. GOVERNING LAW. This Warrant shall be governed by and construed and
interpreted in accordance with the laws of the State of Washington, without
giving effect to its conflicts of law principles. All disputes between the
parties hereto, whether sounding in contract, tort, equity or otherwise, shall
be resolved only by state and federal courts located in Spokane, Washington, and
the courts to which an appeal therefrom may be taken. All parties hereto waive
any objections to the location of the above referenced courts, including but not
limited to any objection based on lack of jurisdiction, improper venue or forum
non conveniens.
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11. HEADINGS. The headings and captions used in this Warrant are used
for convenience only and are not to be considered in construing or interpreting
this Warrant. All references in this Warrant to sections and exhibits shall,
unless otherwise provided, refer to sections hereof and exhibits attached
hereto, all of which exhibits are incorporated herein by this reference.
12. NOTICES. Any request, consent, notice or other communication
required or permitted under this Warrant shall be in writing and shall be deemed
duly given and received when delivered personally or transmitted by facsimile,
one business day after being deposited for next-day delivery with a nationally
recognized overnight delivery service, or three days after being deposited as
first class mail with the United States Postal Service, all charges or postage
prepaid, and properly addressed to the party to receive the same at the address
indicated for such party on the signature pages of the Purchase Agreement. Any
party may, at any time, by providing ten days' advance notice to the other party
hereto, designate any other address in substitution of the an address
established pursuant to the foregoing.
13. AMENDMENT; WAIVER. 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) only with the
written consent of the Company and the Holder.
14. SEVERABILITY. If one or more provisions of this Warrant are held to
be unenforceable under applicable law, such provision(s) shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
15. TERMS BINDING. By acceptance of this Warrant, the Holder accepts
and agrees to be bound by all the terms and conditions of this Warrant.
16. VALID ISSUANCE; TAXES. All shares of Warrant Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and non-assessable,
and the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for shares of Warrant Stock in any
name other than that of the Holder of this Warrant.
17. REGISTRATION RIGHTS. All shares of Warrant Stock issuable upon
exercise of this Warrant shall be deemed to be "Registrable Securities" or such
other definition of securities entitled to registration rights pursuant to the
Investor Rights Agreement, and are entitled, subject to the terms and conditions
of that agreement, to all registration rights granted to holders of Registrable
Securities thereunder.
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18. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, sale of assets
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Holder of this Warrant against impairment. Without limiting the generality of
the foregoing, the Company (a) will not increase the par value of any shares of
stock issuable upon the exercise of this Warrant above the amount payable
therefor upon such exercise, and (b) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Warrant Stock upon exercise of this
Warrant.
[Signature appears on the following page.]
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IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
date and year set forth below.
Dated: December 22, 2000 SVI Holdings, Inc.
By: /S/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President and Chief Executive Officer
[SIGNATURE PAGE TO WARRANT]
