EXHIBIT 4.6
FORM OF WARRANT TO PURCHASE
RCI COMMON STOCK, DATED FEBRUARY 8, 1995
Warrant to Purchase ________ Shares of Common Stock
THESE WARRANTS, AND THE COMMON STOCK ISSUABLE UPON EXERCISE,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED, DISPOSED OF OR OFFERED
FOR SALE, IN WHOLE OR IN PART, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THAT ACT COVERING THESE WARRANTS AND/OR THE COMMON STOCK
ISSUABLE UPON EXERCISE THEREOF, OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO RAPID CAST, INC., THAT AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
___________________________________
WARRANTS TO PURCHASE COMMON STOCK
OF
RAPID CAST, INC.
__________________________________
This is to Certify That, For Value Received, _____________, or
assigns ("Holder"), is entitled to purchase, subject to the provisions of
this Agreement, from Rapid Cast, Inc., a Delaware corporation ("RCI"),
_________ THOUSAND (_,000) fully paid, validly issued and nonassessable
shares of Common Stock, $.001 par value, of RCI ("Common Stock") at any time
or from time to time during the 180-day period (the "Exercise Period")
commencing on the 35th business day after the Start Date (as hereinafter
defined), if any, at an initial exercise price equal to 50% of the average of
the last reported sales price on the first 30 business days after the Start
Date. The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for each share of Common Stock may
be adjusted from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price
of a share of Common Stock in effect at any time and as adjusted from time to
time is hereinafter sometimes referred to as the "Exercise Price." The
"Start Date" means any date before December 31, 1998 on which securities of
RCI are first traded publicly.
(a) EXERCISE OF WARRANT. This Warrant may be exercised in
whole or in part at any time or from time to time during the Exercise Period.
(b) RESERVATION OF SHARES. RCI shall at all times reserve for
issuance and/or delivery upon exercise of the Warrant such number of shares
of its Common Stock as shall be required for issuance and delivery upon
exercise of the Warrant.
(c) FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of these
Warrant.
(d) ELIMINATION OF FRACTIONAL SHARES. All fraction shares
shall be eliminated by rounding any fraction down to the nearest whole number
of shares of Common Stock.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue
hereof, be entitled to any rights of a stockholder in RCI, either at law or
equity, and the rights of the Holder are limited to those expressed herein
and are not enforceable against RCI except to the extent set forth herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at
any time and the number and kind of securities purchasable upon the exercise
of the Warrant shall be subject to adjustment from time to time upon the
happening of certain events as follows:
(1) In case RCI shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock
into a greater number of shares, or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, combination or
reclassification shall be adjusted so that it shall equal the price
determined by multiplying the Exercise Price by a fraction, the denominator
of which shall be the number of shares of Common Stock outstanding after
giving effect to such action, and the numerator of which shall be the number
of shares of Common Stock outstanding immediately prior to such action. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(2) In case RCI shall fix a record date for the
issuance of rights or warrants (other than employee stock options exercisable
at fair market value on the date of grant) to all holders of its Common Stock
entitling them to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) at a price (the "Subscription
Price") (or having a conversion price per share) less than the current market
price of the Common Stock (as defined in clause (5) below) on the record date
mentioned below, the Exercise Price shall be adjusted so that the same shall
equal the price determined by multiplying the Exercise Price in effect
immediately prior to the date of issuance by a fraction, the numerator of
which shall be the sum of the number of shares of Common Stock outstanding on
the record date mentioned below and the number of additional shares of Common
Stock which the aggregate offering price of the total number of shares of
Common Stock so offered (or the aggregate conversion price of the convertible
securities so offered) would purchase at such current market price per share
of the Common Stock, and the denominator of which shall be the sum of the
number of shares of Common Stock outstanding on such record date and the
number of additional shares of Common Stock offered for subscription or
purchase (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever such
rights or warrants are issued and shall become effective immediately after
the
record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
delivered (or securities convertible into Common Stock are not delivered)
after the expiration of such rights or warrants the Exercise Price shall be
readjusted to the Exercise Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made upon
the basis of delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered.
(3) In case RCI shall hereafter distribute to all
holders of its Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions and dividends or distributions
referred to in Subsection (1) above) or subscription rights or warrants
(excluding those referred to in Subsection (2) above), then in each such case
the Exercise Price in effect thereafter shall be determined by multiplying
the Exercise Price in effect immediately prior thereto by a fraction, the
numerator of which shall be the total number of shares of Common Stock
outstanding multiplied by the current market price per share of Common Stock
(as defined below), less the fair market value (as determined by RCI's Board
of Directors) of said assets or evidences of indebtedness so distributed or
of such rights or warrants, and the denominator of which shall be the total
number of shares of Common Stock outstanding multiplied by such current
market price per share of Common Stock. Such adjustment shall be made
successively whenever such a record date is fixed. Such adjustment shall be
made whenever any such distribution is made and shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such distribution.
(4) Whenever the Exercise Price payable upon exercise
of each Warrant is adjusted pursuant to Subsections (1), (2) and (3) above,
the number of Warrant Shares purchasable upon exercise of these Warrant shall
simultaneously be adjusted by multiplying the number of Shares initially
issuable upon the exercise of these Warrant by the Exercise Price in effect
on the date hereof and dividing the product so obtained by the Exercise
Price, as adjusted.
(5) For the purpose of any computation under
Subsections (2) and (3) above, the current market price per share of Common
Stock at any date shall be deemed to be the average of the daily closing
prices for 30 consecutive business days before such date. The closing price
for each day shall be the last sale price or, in case no such reported sale
takes place on such day, the average of the last reported bid and asked
prices, in either case on the principal national securities exchange on which
the Common Stock is admitted to trading or listed, or if not listed or
admitted to trading on such exchange, the average of the highest reported bid
and lowest reported asked prices as reported by NASDAQ, or other similar
organization if NASDAQ is no longer reporting such information, or it not so
available, the fair market price as determined by the Board of Directors.
(6) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least twenty-five cents ($.25) in such price; provided, however, that any
adjustment which by reason of this Subsection is not required to be made
shall be carried forward and taken into account in any subsequent adjustment
required to be made hereunder. All calculations under this Section (f) shall
be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
Anything in this Section (f) to the contrary notwithstanding, RCI shall be
entitled, but not required, to make such changes in the Exercise Price, in
addition to those required by this Section (f), as it shall determine, in its
sole discretion, to be advisable in order that any dividend or distribution
in shares of Common Stock, or any subdivision, reclassification or
combination of Common Stock, hereafter made by RCI shall not result in any
Federal income tax liability to the holders of Common Stock or securities
convertible into Common Stock (including Warrants).
(7) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this Warrant
thereafter shall become entitled to receive any shares of RCI, other than
Common Stock, thereafter the number of such other shares so receivable upon
exercise of this Warrant shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Common Stock contained in Subsections (1) to (6),
inclusive above.
(8) Irrespective of any adjustments in the Exercise
Price or the number or kind of shares purchasable upon exercise of this
Warrant, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of shares as are stated in the similar
Warrant initially issuable pursuant to this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall
be adjusted as required by the provisions of the foregoing Section, RCI shall
forthwith file in the custody of its Secretary or an Assistant Secretary at
its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein
provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of
Common Stock, if any, and such other facts as shall be necessary to show the
reason for and the manner of computing such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
the holder or any holder of a Warrant executed and delivered pursuant to
Section (a).
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall
be outstanding, (i) if RCI shall pay any dividend or make any distribution
upon the Common Stock, or (ii) if RCI shall offer to the holders of Common
Stock for subscription or purchase by them any share of any class or any
other rights, or (iii) if any capital reorganization of RCI, reclassification
of the capital stock of RCI, consolidation or merger of RCI with or into
another corporation, sale, lease or transfer of all or substantially all of
the property and assets of RCI to another corporation, or voluntary or
involuntary dissolution, liquidation or winding up of RCI shall be effected,
then in any such case, RCI shall cause to be mailed by certified mail to the
Holder, at least fifteen days prior to the date specified in (x) or (y)
below, as the case may be, a notice containing a brief description of the
proposed action and stating the date on which (x) a record is to be taken for
the purpose of such dividend, distribution or rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any
is to be fixed, as of which the holders of Common Stock or other securities
shall receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation
or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of
any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of RCI, or in case of any consolidation or merger of
RCI with or into another corporation (other than a merger with a subsidiary
in which merger RCI is the continuing corporation and which does not result
in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or in case of any sale, lease or conveyance to another
corporation of the property of RCI as an entirety, RCI shall cause effective
provisions to be made so that the Holder shall have the right by exercising
this Warrant prior to the expiration of the Warrants, to purchase the kind
and amount of shares of stock and other securities and property receivable
upon such reclassification, capital reorganization and other change,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock which might have been purchased upon exercise of this Warrant
immediately prior to such reclassification, change, consolidation, merger,
sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section (i) shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in
connection with any such capital reorganization or reclassification,
consolidation, merger, sale or conveyance, additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole or
in part, for a security of RCI other than Common Stock, any such issue shall
be treated as an issue of Common Stock covered by the provisions of
Subsection (1) of Section (f) hereof.
IN WITNESS WHEREOF, RCI has caused this Warrant to be signed and
attested by the Undersigned, being duly authorized, as of the date below.
RAPID CAST, INC.
By: ___________________________________
Larry Joel, President
Dated: February 7, 1995
PURCHASE FORM
The undersigned hereby irrevocable elects to exercise the within
Warrants to the extent of purchasing _____________ shares of Common Stock and
hereby makes payment of $_______________ in payment of the actual exercise
price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name: _________________________ Social Security No.: ___________
(Print in block letters)
Address: __________________________________________________________
__________________________________________________________
Signature: _________________________ Date: _________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, ____________________________________ hereby
sells, assigns and transfers unto
Name: _________________________ Social Security No.: ___________
(Print in block letters)
Address: __________________________________________________________
__________________________________________________________
the right to purchase Common Stock represented by _________ Warrants to the
extent of _________ shares of Common Stock as to which such right is
exercisable and does hereby irrevocably constitute and appoint the President
of RCI as Attorney, to transfer the same on the books of RCI with full power
of substitution in the premises.
Date: _____________________, 19__ Signature: _________________________