EXHIBIT 4.5
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
APPLICABLE STATE SECURITIES LAWS, AND NO INTEREST THEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i)
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID
SECURITIES, OR (ii) THE ISSUER RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE
HOLDER OF SAID SECURITIES SATISFACTORY TO THE ISSUER STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION OR THE ISSUER OTHERWISE SATISFIES
ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE [Shares]
SHARES OF COMMON STOCK
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
SOLIGEN TECHNOLOGIES, INC.
FOR VALUE RECEIVED, SOLIGEN TECHNOLOGIES, INC. (the
"Company) hereby grants to [Name] (the "Initial Warrant Holder") the right,
subject to the terms of this Warrant, to purchase at any time and from time
to time during the period commencing on the "Initial Exercise Date" (as
defined below) and ending on the "Expiration Date" (as defined below) up to
[Number] ([Shares]) fully-paid and nonassessable shares of Common Stock of
the Company. The exercise price per share shall be $0.20 per share (the
"Basic Exercise Price"). The Basic Exercise Price and the number of shares
that may be purchased are subject to adjustment under the terms of this
Warrant. This Warrant is issued in connection with that certain Series B
Preferred Stock and Warrant Purchase Agreement, that certain Amendment to
Articles setting forth the Rights and Preferences of the Series B Convertible
Preferred Stock ("Amendment to Articles") to be filed with the Secretary of
State of Wyoming pursuant thereto and that certain Investor Rights Agreement,
dated concurrently herewith.
SECTION 1. DEFINITIONS
As used in this Warrant, unless the context otherwise
requires:
"Basic Exercise Price" means the price at which each Warrant
Share may be purchased upon exercise of this Warrant, as stated in the
introductory paragraph.
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"Common Stock" means the Common Stock of the Company.
"Exercise Date" means any date when this Warrant is exercised,
in whole or in part, in the manner indicated in Sections 2.1 and 2.2 below.
"Exercise Price" means the Basic Exercise Price; provided,
however, that if an adjustment is required under Section 7.1 of this Warrant,
then the "Exercise Price" means, after such adjustment, the price at which each
Warrant Share may be purchased upon exercise of this Warrant immediately after
the last such adjustment.
"Expiration Date" means 5:00 p.m. (Los Angeles time) one year
from the date hereof; provided, however, that to the extent that the Initiating
Holders, as defined in the Investor Rights Agreement, have submitted a demand
registration request pursuant to the Investor Rights Agreement, within one year
from the date hereof, the Expiration Date shall be extended to a date thirty
(30) days after the effectiveness of the demand registration statement pursuant
to the Investor Rights Agreement, provided however that the Expiration Date
shall be further extended to such date as the Warrant Holders are free to sell
the underlying shares of Common Stock without cutbacks.
"Fair Market Value" shall mean the then most recent closing
price of the Common Stock as reported on the trading exchange at which the
Company's Common Stock is traded, or if not so traded, as determined in good
faith by the Company's board of directors including its outside board members.
"Initial Exercise Date" means the date of this Warrant.
"Initial Warrant Holder" has the meaning specified in the
introductory paragraph.
"Person" means an individual, corporation, partnership, trust,
joint venture or other form of business entity.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and all rules and regulations promulgated thereunder, or any
act, rules or regulations which replace the Securities Act or any such rules and
regulations.
"Subsequent Warrant" has the meaning specified in Section
2.3 below.
"Warrant Holder" means the Initial Warrant Holder or, upon
assignment of this Warrant by the Initial Warrant Holder (or a subsequent
Warrant Holder), such assignee.
"Warrant Share(s)" means any share(s) of Common Stock, or
other securities, issued or issuable upon exercise of this Warrant.
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SECTION 2. DURATION AND EXERCISE OF WARRANT
2.1 EXERCISE PERIOD
Subject to the provisions hereof, this Warrant may be
exercised at any time and from time to time during the period commencing on the
Initial Exercise Date and ending on the Expiration Date. After the Expiration
Date, this Warrant shall become void and all rights to purchase Warrant Shares
hereunder shall thereupon cease.
2.2 METHOD OF EXERCISE AND PAYMENT
(a) METHOD OF EXERCISE. Subject to Section 2.1 hereof and
compliance with all applicable Federal and state securities laws, the purchase
right represented by this Warrant may be exercised, in whole or in part, by the
Warrant Holder by (i) surrender of this Warrant and delivery of an exercise form
specifying the number of shares to be purchased, duly executed, at the principal
office of the Company and (ii) payment to the Company of an amount equal to the
product of the then applicable Exercise Price multiplied by the number of
Warrant Shares then being purchased. At the election of the Warrant holder, the
purchase price may be paid by surrender of this Warrant for the full number of
shares for which this Warrant is then exercisable less that number of shares
having a fair market value equal to the aggregate exercise price. For purposes
of this Section, fair market value shall be determined as follows: if the Common
Shares are then traded on the over-the-counter market on the date in question,
the last reported per-share sales price; provided that if there have been no
sales reported in the most recent two trading days at the time of determination,
then the closing bid price (or average of bid prices) last quoted on such date
by an established quotation service for over-the-counter securities.
(b) METHOD OF PAYMENT. Payment shall be made either by
check drawn on a United States bank and for United States funds made payable to
the Company, or by wire transfer of United States funds for the account of the
Company, or by the cashless exercise provided above.
(c) DELIVERY OF CERTIFICATE. In the event of any exercise
of the purchase right represented by this Warrant, certificates for the Warrant
Shares so purchased shall be delivered to the Warrant Holder within thirty (30)
days of delivery of the Exercise Form and, unless this Warrant has been fully
exercised or has expired, a new warrant representing the portion of the Warrant
Shares with respect to which this Warrant shall not then have been exercised
shall also be issued to the Warrant Holder within such thirty (30) day period.
2.3 SECURITIES ACT COMPLIANCE/RESTRICTIONS UPON TRANSFER
Reference is made to Sections 2, 3 and 4 of the
Investor Rights Agreement which by this reference are incorporated herein.
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SECTION 3. VALIDITY AND RESERVATION OF WARRANT SHARES
The Company represents and warrants that all Warrant Shares
issued upon exercise of this Warrant will be validly issued, fully paid,
nonassessable and not subject to preemptive or similar rights. The Company
agrees that, as long as this Warrant may be exercised, the Company will have
authorized and reserved for issuance upon exercise of this Warrant a sufficient
number of shares of Common Stock to provide for exercise in full of this
Warrant.
SECTION 4. FRACTIONAL SHARES
No fractional Warrant Shares shall be issued upon the exercise
of this Warrant, and the number of Warrant shares to be issued shall be rounded
to the nearest whole number.
SECTION 5. LIMITED RIGHTS OF WARRANT HOLDER
The Warrant Holder shall not, solely by virtue of being the
Warrant Holder of this Warrant, have any of the rights of a stockholder of the
Company, either at law or equity, until this Warrant shall have been exercised.
SECTION 6. LOSS OF WARRANT
Upon receipt by the Company of satisfactory evidence of the
loss, theft, destruction or mutilation of this Warrant and either (in the case
of loss, theft or destruction) reasonable indemnification and a bond
satisfactory to the Company if requested by the Company or (in the case of
mutilation) the surrender of this Warrant for cancellation, the Company will
execute and deliver to the Warrant Holder, without charge, a new warrant of like
denomination.
SECTION 7. CERTAIN ADJUSTMENTS OF EXERCISE PRICE
7.1 ADJUSTMENT OF EXERCISE PRICE
The number, class and Exercise Price of securities for which
this Warrant may be exercised are subject to adjustment from time to time upon
the happening of certain events as hereinafter provided:
(a) RECAPITALIZATION. If the outstanding shares of the
Company's Common Stock are divided into a greater number of shares or the
Company issues a stock dividend on its outstanding Common Stock, the number of
shares of Common Stock purchasable upon the exercise of this Warrant shall be
proportionately increased and the Exercise Price shall be proportionately
reduced and, conversely, if the outstanding shares of Common Stock are combined
into a smaller number of shares of Common Stock, the number of shares of Common
Stock purchasable upon the exercise of this Warrant shall be proportionately
reduced and the Exercise Price shall be proportionately increased. The increases
and reductions provided for in this Section 7.1.(a) shall be made with the
intent and, as nearly as practicable, the effect that
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neither the percentage of the total equity of the Company obtainable on
exercise of this Warrant nor the price payable for such percentage shall be
affected by any event described in this Section 7.1 (a).
(b) MERGER OR REORGANIZATION, ETC. In the event of any
change in the Common Stock through merger, consolidation, reclassification,
reorganization (such as, but not limited to, spin-offs of a business whereby,
for example, a Company asset is contributed to a subsidiary which is then
spun-off to the Company's shareholders), partial or complete liquidation or
other change in the capital structure of the Company (not including the issuance
of additional shares of capital stock other than by stock dividend or stock
split), then, as a condition of such change in the capital structure of the
Company, appropriate and adequate provision shall be made so that the Warrant
Holder of this Warrant will have the right thereafter to receive upon the
exercise of this Warrant the kind and amount of shares of stock or other
securities or property to which it would have been entitled if immediately prior
to such merger, consolidation, reclassification, reorganization,
recapitalization or other change in the capital structure, it had held the
number of shares of Common Stock then obtainable upon the exercise of this
Warrant. In any such case appropriate adjustment shall be made in the
application of the provisions set forth herein with respect to the rights and
interest thereafter of the Warrant Holder, to the end that the provisions set
forth herein shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the exercise of this Warrant.
(c) Reference is made to Section 9 (c) (iii) (d) of the
Amendment to Articles. It is agreed that if pursuant to said section of the
Amendment to Articles, the Series B Conversion ratio is required to be adjusted,
this Warrant shall likewise be adjusted on a proportional and similar basis as
the Series B Preferred Stock is adjusted.
7.2 NOTICE OF ADJUSTMENT
Whenever an event occurs requiring any adjustment to be made
pursuant to Section 7.1(a), 7.1(b) or (c), the Company shall promptly file with
its Secretary or an Assistant Secretary at its principal office and with its
stock transfer agent, if any, a certificate of its chief executive officer
specifying such adjustment, setting forth in reasonable detail the acts
requiring such adjustment, and stating such other facts as shall be necessary to
show the manner and figures used to compute such adjustment. Such chief
executive officer's certificate shall be made available at all reasonable times
for inspection by the Warrant Holder. Promptly (but in no event more than 30
days) after each such adjustment, the Company shall give a copy of such
certificate by certified mail to the Warrant Holder.
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SECTION 8. SUBDIVISION OF WARRANT
At the request of the Warrant Holder in connection with a
transfer of a portion of this Warrant upon surrender of this Warrant for such
purpose to the Company at its principal office, the Company at its expense
(except for any transfer tax payable) will issue and exchange therefor new
Warrants of like tenor and date representing in the aggregate the amount of the
Warrant Shares.
SECTION 9. REGISTRATION RIGHTS
The Initial Warrant Holder shall have all the registration
rights provided in that certain Investor Rights Agreement entered into
concurrently herewith pursuant to the Series B Stock and Warrant Purchase
Agreement, including the right to transfer such rights to a subsequent Holder
subject to the terms and conditions set forth in the Investor Rights Agreement..
SECTION 10. REPRESENTATIONS AND WARRANTIES
10.1 BY WARRANT HOLDER
The Warrant Holder represents and warrants to the Company as
follows:
(a) This Warrant and the Warrant Shares issuable upon
exercise thereof are being acquired for the Warrant Holder's own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities
Act. Upon exercise of this Warrant, the Warrant Holder shall, if so requested by
the Company, confirm in writing, in a form satisfactory to the Company, that the
securities issuable upon exercise of this Warrant are being acquired for
investment and not with a view toward distribution or resale.
(b) The Warrant Holder understands that the Warrant and
the Warrant Shares have not been registered under the Securities Act by reason
of their issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Act pursuant to Section 4(2) or Section 4(6)
thereof, and that they must be held by the Warrant Holder indefinitely, and that
the Warrant Holder must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Securities Act or is exempted from such registration.
(c) The Warrant Holder has such knowledge and experience
in financial and business matters that the Warrant Holder is capable of
evaluating the merits and risks of the purchase of this Warrant and the Warrant
Shares purchasable pursuant to the terms of this Warrant and of protecting the
Warrant Holder's interests in connection therewith. The Warrant Holder is an
accredited investor, as such term is defined in Rule 501 of Regulation D
promulgated pursuant to the 1984 Act.
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(d) The Warrant Holder is able to bear the economic risk
of the purchase of the Warrant Shares pursuant to the terms of this Warrant.
SECTION 11. MISCELLANEOUS
11.1 SUCCESSORS AND ASSIGNS
The provisions of this Warrant shall be binding upon and inure
to the benefit of the Company, the Warrant Holder and their respective permitted
successors and assigns hereunder. If the Company changes its name, it shall
promptly provide Warrant Holder with a replacement Warrant in its new name and
Warrant Holder shall simultaneously return this Warrant for destruction.
11.2 NOTICES
All notices and other communications required or permitted
under this Agreement shall be in writing and shall be sent by facsimile
transmission (FAX) to the number set forth below (such notice shall be deemed
given on the date of transmission) or by overnight air courier service (in which
case notice shall be deemed given when received by addressee or on the second
(2nd) day after the date of delivery to the courier, whichever is earlier), or
by registered or certified mail, return receipt requested, postage prepaid and
properly addressed (in which case notice shall be deemed given when received by
the addressee or on the fifth (5th) day after the date of mailing, whichever is
earlier), to the addresses set forth below, or such other address as a party may
hereafter provide notice of to the other:
If to the Company: Soligen Technologies, Inc.
19408 Londelius Street
Northridge, California 91324
FAX: (818) 718-0760
If to the Warrant Holder: [Address1]
[Address2]
[City], [State] [Postal Code]
OR
The Warrant Holder's last known FAX number or address as it
appears on the books of the Company.
11.3 APPLICABLE LAW
The validity, interpretation and performance of this Warrant
shall be governed by the laws of the State of California.
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11.4 HEADINGS
The headings herein are for convenience only and are not part
of this Warrant and shall not affect the interpretation thereof.
Dated: November 24, 1999
SOLIGEN TECHNOLOGIES, INC.
By ________________________
Yehoram Uziel
CEO
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ASSUMPTION AGREEMENT
In connection with the transfer of [Shares] Warrant Shares
issued or issuable pursuant to that certain Stock Purchase Warrant to
Purchase Shares of Common Stock of SOLIGEN TECHNOLOGIES, INC., dated November
24, 1999 (the "Warrant"), the undersigned hereby agrees that with regard to
such shares it shall be bound by the terms and conditions of the Warrant, as
a Warrant Holder (as defined in Section 1 of the Warrant).