EXHIBIT 10.43
STOCK WARRANT
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER
THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT AND SUCH LAWS, WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER,
WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS
CORPORATION, IS AVAILABLE.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF TRISTAR CORPORATION
Warrant Certificate No. 1998-1 Date: September 3, 1998 ("Effective
Date")
This certifies that, for value received, Tristar Corporation, a Delaware
corporation (the "COMPANY"), hereby grants to Pioneer Ventures Associates
Limited Partnership (the "HOLDER") the right to purchase, subject to adjustment
and the other terms and conditions set forth herein, 125,000 shares of common
stock, par value $.01 per share (the "Stock"), at the WARRANT EXERCISE PRICE per
share (as defined in SECTION 1(D) hereof), subject to adjustment as set forth in
SECTION 3 hereof, at any time or from time to time after the date hereof and
prior to 5:00 P.M. (Eastern Time) on September 2, 2003 (the "WARRANT EXPIRATION
DATE").
This Warrant and all warrants hereafter issued in exchange or substitution
of this Warrant, are hereinafter referred to as the "WARRANTS." THIS WARRANT, TO
THE EXTENT NOT EXERCISED IN THE MANNER SET FORTH HEREIN, SHALL TERMINATE AND
BECOME NULL AND VOID AT 5:00 P.M. (EASTERN TIME) ON THE WARRANT EXPIRATION DATE.
This Warrant is subject to the following terms and conditions.
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT OF SHARES.
2.
3. (a) This Warrant may be exercised, at the option of the Holder, in whole or
in part at any time prior to 5:00 P.M. (Eastern Time) on the Warrant Expiration
Date, by surrender to the Company of this Warrant Certificate properly endorsed
together with the Form of Subscription attached hereto duly filled in, signed
and with proper payment of the Warrant Exercise Price multiplied by the number
of shares of Stock for which the Warrant is being exercised. Payment shall be in
cash, certified check or official bank check or check, subject to collection,
payable to the order of the Company.
4.
5. (b) In addition to the method of payment set forth in Section 1(a) above and
in lieu of any cash payment required thereunder, unless otherwise prohibited by
law, the Holder shall have the right at any time, when exercisable, and from
time to time to exercise the Warrants in full or in part by receiving from the
Company the number of shares of Stock equal to the number of shares of Stock
otherwise issuable upon such exercise less the number of shares of Stock having
an aggregate "Fair Market Value" on the date of exercise equal to the Warrant
Exercise Price multiplied by the number of shares of Stock for which this
Warrant is being exercised. For purposes hereof, the "Fair Market Value" of a
share of Stock on a given date shall be equal to the "Closing Sales Price" on
such date. The "Closing Sales Price" as of a certain date will mean the closing
sales price, in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or if not so
reported, as reported by the National Quotation Bureau, Incorporated, or any
successor thereof, or if not so reported, the closing sales price as furnished
by any member of the National Association of Securities Dealers, Inc., selected
from time to time by the Company for that purpose, or, if the Stock is listed or
admitted to trading on a national securities exchange, the closing sales price,
regular way, on the principal national securities exchange on which the Stock is
listed or admitted to trading.
6.
7. (c) The Company agrees that the shares of Stock purchased on the exercise of
each Warrant shall be deemed to be issued as of the close of business on the
date on which this Warrant Certificate shall have been surrendered and payment
made for such shares of Stock. Issuance of the shares of Stock shall be subject
to compliance with all provisions of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and any relevant state securities law. Subject to the
provisions of Section 2 hereof, certificates for the largest whole number of
shares of Stock so purchased, together with any other securities or property to
which the Holder is entitled upon such exercise, shall be delivered to the
Holder by the Company within two business days after this Warrant has been
exercised. No fractional shares of Stock shall be issued upon exercise of this
Warrant. Each Stock Certificate so delivered shall be registered in the name of
the Holder or such other name as shall be designated by the Holder, subject to
the provisions of Sections 6 and 8 hereof. If prior to the Warrant Expiration
Date, this Warrant is exercised in part, one or more new Warrants substantially
in the form of, and on the terms contained in, this Warrant Certificate will be
issued for the remaining number of shares of Stock in respect of which this
Warrant has not been exercised.
8.
9. (d) If at the time of exercise of all or part of this Warrant, the Fair
Market Value of a share of Stock, on the trading day immediately prior to the
date of exercise, is less than $5 7/16 (for purposes of this Section 1(d), $5
7/16 shall be referred to as a "Pricing Standard"), then the Warrant Exercise
Price shall be $4.00 (for purposes of this Section 1(d), $4.00 shall be referred
to as a "Pricing Standard"). If at the time of exercise of all or part of this
Warrant, the Fair Market Value of a share of Stock, on the trading day
immediately prior to the date of exercise, is $5 7/16 or more, then the Warrant
Exercise Price shall be the sum of (a) $4.00 and (b) one-half (50%) of the
difference between the Fair Market Value of a share of Stock and $5 7/16;
provided, however in no event shall the Warrant Exercise Price be more than $6
9/32 per share (for purposes of this Section 1(d), $6 9/32 shall be referred to
as a "Pricing Standard"). In the event the Warrant Exercise Price is adjusted
pursuant to Section 3 hereof, then each of the Pricing Standards shall be
similarly adjusted.
10.
11. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants and
agrees that all shares of Stock which may be issued upon the exercise of this
Warrant will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable. The Company further covenants and agrees that during the period
within which this Warrant may be exercised, the Company will at all times have
authorized and reserved, and will keep available solely for issuance upon
exercise of this Warrant, a sufficient number of shares of Stock or other
securities and properties as from time to time shall be receivable upon the
exercise of this Warrant. The Company shall provide that any successor
corporation will reserve a sufficient number of shares of authorized but
unissued stock or other securities or set aside sufficient other property, as
the case may be, as provided for in this Section 2.
12.
13. ADJUSTMENT OF WARRANT EXERCISE PRICE AND NUMBER OF SHARES; EVENTS REQUIRING
NOTICE; CHANGES IN STOCK.
14.
14.1 METHOD OF ADJUSTMENT. The Warrant Exercise Price and the number of shares
of Stock purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the occurrence of the events described in
Section 3.2. Upon each adjustment of the Warrant Exercise Price, the Holder
shall thereafter be entitled to purchase, at the Warrant Exercise Price
resulting from such adjustment, the number of shares of Stock obtained by
multiplying the Warrant Exercise price in effect immediately prior to such
adjustment by the number of shares of Stock purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Warrant Exercise Price resulting from such adjustment.
14.2
14.3 SUBDIVISION OR COMBINATION OF STOCK AND STOCK DIVIDEND. In case the Company
shall at any time subdivide its outstanding shares of Stock into a greater
number of shares of Stock or declare a dividend upon its Stock payable solely in
shares of Stock, the Warrant Exercise Price in effect immediately prior to such
subdivision or dividend shall be proportionately reduced, and conversely, in
case the outstanding shares of Stock of the Company shall be combined into a
smaller number of shares of Stock, the Warrant Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
14.4
14.5 ADJUSTMENTS FOR DIVIDENDS IN SECURITIES OTHER THAN COMPANY Stock. While
this Warrant, or any portion hereof, remains outstanding and unexpired, if the
Holders of the Stock shall have received, or, on or after the record date fixed
for the determination of eligible stockholders, shall have become entitled to
receive, without payment therefore, shares of capital stock of a subsidiary of
the Company by way of dividend or otherwise, then in such case, this Warrant
shall represent the right to acquire, in addition to the number of shares of the
Stock receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such capital stock of such
subsidiary that the Holder would have received if the Holder had exercised this
Warrant prior to any such capital stock distribution; provided, however, no
adjustment to the Warrant Exercise Price shall occur as a result of any such
dividend of the capital stock of a subsidiary of the Company.
14.6
14.7 NOTICE OF ADJUSTMENT. Upon any adjustment of the Warrant Exercise Price and
any increase or decrease in the number of shares of Stock purchasable upon the
exercise of this Warrant, the Company promptly shall give written notice thereof
to the Holder, which shall state the Warrant Exercise Price resulting from such
adjustment and increase or decrease, if any, in the number of shares of Stock
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
14.8
14.9 OTHER NOTICES. If at any time:
14.10
14.11 (a) the Company shall declare a dividend upon its Stock
payable in shares of capital stock of one of its subsidiaries;
14.12
14.13 (b) there shall be any consolidation or merger of the Company with another
corporation, or a sale of all or substantially all of the Company's assets to
another corporation; or
14.14
14.15 (c) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
14.16
14.7 then, in any one or more of said cases, the Company shall give the Holder
(i) at least thirty (30) days' prior written notice of the date on which the
books of the Company shall close or a record date shall have occurred for such
dividend or distribution or for determining rights to vote in respect of any
such consolidation, merger, sale, dissolution, liquidation or winding-up, and
(ii) in the case of any such consolidation, merger, sale, dissolution,
liquidation or winding-up, at least twelve (12) calendar days' written notice of
the date when the same shall take place. Any notice given in accordance with
clause (i) above shall also specify, in the case of any such dividend or
distribution, the date on which the holders of Stock shall be entitled thereof.
Any notice given in accordance with clause (ii) above shall also specify the
date on which the holders of Stock shall be entitled to exchange their Stock for
securities or other property deliverable upon such consolidation, merger, sale,
dissolution, liquidation or winding-up, as the case may be. Notwithstanding
anything contained herein to the contrary, if the Holder does not exercise this
Warrant prior to a record date or the occurrence of an event described above, as
applicable, except as provided in Section 3.2, the Holder shall not be entitled
to receive the benefits accruing to existing holders of the Stock in such event.
14.18
15. ISSUE TAX. The issuance of certificates for shares of Stock upon the
exercise of this Warrant shall be made without charge to the Holder or its
limited partners for any issue tax in respect thereof; PROVIDED, HOWEVER, 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 that of the Holder or its limited partners.
16.
17. NO VOTING OR DIVIDEND RIGHTS. This Warrant does not confer upon the Holder
the right to vote or to consent or to receive notice as a stockholder of the
Company, in respect of meetings of stockholders for the election of directors of
the Company or any other matters or any rights whatsoever as a stockholder of
the Company prior to the exercise hereof. No cash dividends shall be payable or
accrued in respect of this Warrant or the shares of Stock purchasable hereunder
until, and only to the extent that, this Warrant shall have been exercised.
18.
19. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH SECURITIES
ACT.
20.
20.1 RESTRICTIONS ON TRANSFERABILITY. The Holder may transfer or assign this
Warrant, except that the Company shall not be obligated to effect any transfer
of this Warrant unless a registration statement is in effect with respect
thereto under applicable state and Federal securities laws or the Company has
received an opinion in substance reasonably satisfactory to it from counsel
reasonably satisfactory to it that such registration is not required and this
Warrant is surrendered to the Company at its principal office together with the
Assignment Form annexed hereto, duly completed and executed, and sufficient
funds to pay any transfer tax.
1.1 OWNERSHIP. The Company and any agent of the Company may treat the person in
whose name this Warrant Certificate is registered on the register which the
Company shall cause to be maintained for such purpose as the owner and holder
thereof for all purposes. This Warrant Certificate, if properly assigned, may be
exercised by a new holder without first having a new Warrant Certificate issued.
1.2
1.3 LEGEND. A legend setting forth or referring to the above restrictions shall
be placed on this Warrant, any replacement hereof or any certificate
representing the Stock, and a stop transfer restriction or order shall be placed
on the books of the Company and with any transfer agent until such securities
may be legally sold or otherwise transferred.
1.4
2. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the Party against which enforcement of the same is sought.
3.
4. NOTICES. Any notice, request or other document required or permitted to be
given or delivered to the Holder or the Company shall be personally delivered or
shall be sent by certified or registered mail, postage prepaid, if to the Holder
at 651 Day Hill Road, Windsor, Connecticut 06095, or if to the Company at its
principal office at 12500 San Pedro Avenue, Suite 500, San Antonio, Texas 78216.
Any notice, request or other document shall be deemed to have been given upon
receipt if personally delivered, or on the seventh day after being mailed if
mailed, registered or certified mail. Each party shall notify the other party in
writing of any change of address of the Company within a reasonable time
following such change of address.
5.
6. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The descriptive headings of the
several sections and paragraphs of this Warrant Certificate are inserted for
convenience only and do not constitute a part of this Warrant Certificate. This
Warrant Certificate shall be construed and enforced in accordance with, and the
rights of the Parties shall be governed by, the laws of the State of Delaware.
7.
8. LOST WARRANT CERTIFICATES OR STOCK CERTIFICATES. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant Certificate or any stock certificate deliverable upon
the exercise hereof and, in the case of any such loss, theft or destruction,
upon receipt of an indemnity and, if requested, bond reasonably satisfactory to
the Company, or in the case of any such mutilation upon surrender and
cancellation of this Warrant Certificate or such stock certificate, the Company
at its expense shall make and deliver a new Warrant Certificate or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant Certificate or stock certificate.
9.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
executed by its officer, thereunder duly authorized as of the ___th day of
September, 1998.
TRISTAR CORPORATION
By:
Name:
Title:
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: TRISTAR CORPORATION
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase thereunder,
_______________ shares of Common Stock of TRISTAR CORPORATION and herewith makes
payment of $____________ therefore and requests that the certificates for such
shares be issued in the name of, and delivered to, ____________________________,
whose address is _____________________________________________.
Dated: ______________, _____
___________________________________
(Signature must conform to name of
Holder as specified on the face of
the Warrant)
___________________________________
___________________________________
(Address)
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant in accordance with the
provisions of Section 6 of the Warrant Certificate)
For value received, the undersigned hereby sells, assigns, and
transfers unto _____________________ the right represented by the written
Warrant to purchase shares of Common Stock of TRISTAR CORPORATION to which the
within Warrant relates and appoints Attorney to transfer such rights on the
books of TRISTAR CORPORATION with full power of substitution in the premises.
Dated: _____________, _____
__________________________________
(Signature must conform to name of
Holder as specified on the face of
the Warrant)