EXHIBIT 4.2
THIS WARRANT HAS BEEN ISSUED IN RELIANCE UPON THE REPRESENTATION OF THE
HOLDER THAT IT HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TOWARDS THE RESALE OR OTHER DISTRIBUTION THEREOF. NEITHER THIS WARRANT
NOR THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
BATTERY EXPRESS, INC.
Stock Subscription Warrant
Warrant to Subscribe June 14,1996
for 6,750 shares
Void After June 14, 2003
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THIS CERTIFIES that, for value received, VROLYK / POWER EXPRESS L.P.,
or its registered assigns, is entitled to subscribe for and purchase from
BATTERY EXPRESS, INC., a California corporation (hereinafter, called the
"Corporation"), at the price of $2.67 per share (such price as from time to time
to be adjusted as hereinafter provided being hereinafter called the "Warrant
Exercise Price"), at any time prior to June 14, 2003, up 6,750 (subject to
adjustment as hereinafter provided) fully paid and nonassessable shares of
Common Stock, no par value, of the Corporation (hereinafter called the "Common
Stock"), subject, however, to the provisions and upon the terms and conditions
hereinafter set forth. This Warrant and any warrant or warrants subsequently
issued upon exchange or transfer hereof are hereinafter collectively called the
"Warrants".
Section 1. Exercise of Warrant.
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(a) Method of Exercise. The rights represented by this Warrant may
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be exercised by the holder hereof, in whole at any time or from time to
time in part, but not as to a fractional share of Common Stock, by the
surrender of this Warrant (properly endorsed) at the office of the
Corporation as it may designate by notice in writing to the holder hereof
at the address of such holder appearing on the books of the Corporation,
and by payment as provided in paragraph (b) hereof.
(b) The holder may make payment in respect of the exercise of this
Warrant as follows:
i) Cash Exercise. By payment to the Corporation of the Warrant
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Exercise Price in cash or by certified or official bank check, for
each share being purchased;
ii) Notes Exercise. By surrender to the Corporation of any
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promissory notes or other obligations issued by the Corporation, with
all such notes or other obligations of the Corporation so surrendered
being credited against the Warrant Exercise Price in an amount equal
to the principal amount thereof plus the amount of any interest
thereon to the date of such surrender;
iii) Securities Exercise. By delivery to the Corporation of any
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other securities issued by the Corporation, with such securities being
credited against the Warrant Exercise Price in an amount equal to the
fair market value thereof;
iv) Net Issue Exercise. By an election to receive shares the
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aggregate fair market value of which as of the date of exercise is
equal to the fair market value of this Warrant (or the portion thereof
being exercised) on such date, in which event the Corporation, upon
receipt of notice of such election shall issue to the holder hereof a
number of shares of Common Stock equal to (A) the number of shares of
Common Stock acquirable upon exercise of all or any portion of this
Warrant being exercised, as at such date, multiplied by (B) the
balance remaining after deducting (x) Warrant Exercise Price, as in
effect on such date, from (y) the fair market value of one share of
Common Stock as at such date and dividing the result by (C) such fair
market value; or
v) Combined Payment Method. By satisfaction of the Warrant
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Exercise Price for each share being acquired in any combination of the
methods described in clauses (i) through (iv) above.
(c) Definition of Fair Market Value. For the purposes of paragraph (b)
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above, the fair market value of the Common Stock shall be determined as
follows: if the Common Stock is listed or admitted to trading on one or
more national securities exchanges, the average of the last reported sales
prices per share regular way or, in case no such reported sales takes place
on any such day, the average of the last reported bid and asked prices per
share regular way, in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, for
the twenty (20) trading days immediately preceding the date upon which the
fair market value is determined (the "Determination Date"); if the Common
Stock is not listed or admitted to trading on a national securities
exchange but is quoted by the NASD Automated Quotation System ("NASDAQ"),
the average of the last reported sales prices per share regular way or, in
case no reported sale takes place on any such day or the last reported
sales prices are not then quoted by NASDAQ, the average for each such day
of the last reported bid and asked prices per share, for the twenty (20)
trading days immediately preceding the Determination Date as furnished by
the National Quotation Bureau
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Incorporated or any similar successor organization; and if the Common Stock
is not listed or admitted to trading on a national securities exchange or
quoted by NASDAQ or any other nationally recognized quotation service, the
fair market value shall be the fair value thereof determined jointly by the
Board of Directors of the Corporation and the holders of Warrants
outstanding representing a majority of the shares of Common Stock
acquirable upon exercise of the Warrants; provided, however, that if such
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parties are unable to reach agreement within a reasonable time, the fair
market value shall be determined in good faith by an independent investment
banking firm selected jointly by the Board of Directors of the Corporation
and the holders of Warrants outstanding representing a majority of the
shares of Common Stock issuable upon exercise of the Warrants or, if that
selection cannot be made within fifteen (15) days, by an independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules. Anything in this paragraph (c) to the contrary
notwithstanding, the fair market value of this Warrant or any portion
thereof as of any Determination Date shall be equal to (i) the fair market
value of the shares of Common Stock issuable upon exercise of this Warrant
(or such portion thereof), (determined in accordance with the foregoing
provisions of this paragraph (c)); minus (ii) the aggregate Warrant
Exercise Price of the Warrant (or such portion thereof).
(d) Delivery of Certificates. Etc. In the event of any exercise of the
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rights represented by this Warrant, a certificate or certificates for the
shares of Common Stock so purchased, registered in the name of the holder,
shall be delivered to the holder hereof within a reasonable time, not
exceeding ten (10) days, after the rights represented by this Warrant shall
have been so exercised; and, unless this Warrant has expired, a new Warrant
representing the number of shares (except a remaining fractional share), if
any, with respect to which this Warrant shall not then have been exercised
shall also be issued to the holder hereof within such time. The person in
whose name any certificate for shares of Common Stock is issued upon
exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Warrant Exercise Price and any applicable
taxes was made, except that, if the date of such surrender and payment is a
date on which the stock transfer books of the Corporation are closed, such
person shall be deemed to have become the holder of such shares at the
close of business on the next succeeding date on which the stock transfer
books are open.
Section 2. Adjustment of Number of Shares. Upon each adjustment of the
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Warrant Exercise Price as provided in Section 3, the holder of this Warrant
shall thereafter be entitled to purchase, at the Warrant Exercise Price
resulting from such adjustment, the number of shares (calculated to the nearest
tenth of a share) obtained by multiplying the Warrant Exercise Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Warrant Exercise Price resulting from such adjustment.
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Section 3. Adjustment of Price Upon Issuance of Common Stock. If and
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whenever the Corporation shall issue or sell any shares of its Common Stock for
a consideration per share less than the Warrant Exercise Price in effect
immediately prior or to the time of such issue or sale, then, forthwith upon
such issue or sale the Warrant Exercise Price shall be reduced to the price
(calculated to the nearest $.0l) determined by dividing (i) an amount equal to
the sum of (a) Adjusted Outstanding Common Stock (as defined below) multiplied
by the then existing Warrant Exercise Price, plus (b) the consideration, if any,
received by the Corporation upon such issue or sale, by (ii) an amount equal to
the sum of Adjusted Outstanding Common Stock plus the number of shares of Common
Stock issued or sold.
As used herein, "Adjusted Outstanding Common Stock shall mean the sum
of (i) the number of shares of Common Stock outstanding immediately prior to
such issue or sale (excluding any shares of Common Stock subject to contractual
repurchase rights held by the Corporation) divided by three, plus (ii) the
number of shares of Common Stock issuable upon conversion of all outstanding
shares of any series of Preferred Stock of the Corporation convertible into
Common Stock.
For purposes of this Section 3, the following paragraphs (a) to (p),
inclusive, shall also be applicable:
(a) Issuance of Rights or Options. In case at any time the Corporation
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shall in any manner grant (whether directly or by assumption in a merger or
otherwise) any rights to subscribe for or to purchase, or any options for
the purchase of, Common Stock or any stock or securities convertible into
or exchangeable for Common Stock (such rights or options being herein
called "Options", and such convertible or exchangeable stock or securities
being herein called "Convertible Securities") whether or not such Options
or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon conversion or exchange
of such Convertible Securities (determined by dividing (i) the total
amount, if any, received or receivable by the Corporation as consideration
for the granting of such Options, plus the minimum aggregate amount of
additional consideration payable to the corporation upon the exercise of
all such Options, plus, in the case of such Options which relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options) shall be less than
the Warrant Exercise Price in effect immediately prior to the time of the
granting of such Options, then the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon conversion or
exchange of the total maximum amount of such Convertible Securities
issuable upon the exercise of such Option shall be deemed to have been
issued for such price per share as of the date of granting of such Options
and
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thereafter shall be deemed to be outstanding. Except as otherwise provided
in paragraph (c), no adjustment of the Warrant Exercise Price shall be made
upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such Options or upon the actual issue of such
Common Stock upon conversion or exchange of such Convertible Securities.
(b) Issuance of Convertible Securities. In case the Corporation shall
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in any manner issue (whether directly or by assumption in a merger or
otherwise) or sell any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the price
per share for which Common Stock is issuable upon such conversion or
exchange (determined by dividing (i) the total amount received or
receivable by the Corporation as consideration for the issue or sale of
such Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the
conversion or exchange of all such Convertible Securities by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the Warrant
Exercise Price in effect immediately prior to the time of such issue or
sale, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed
to have been issued for such price per share as of the date of the issue or
sale of such Convertible Securities and thereafter shall be deemed to be
outstanding, provided that (i) except as otherwise provided in paragraph
(c) below, no adjustment of the Warrant Exercise Price shall be made upon
the actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities, and (ii) if any such issue or sale of such
Convertible Securities is made upon exercise of any Option to purchase any
such Convertible Securities for which adjustments of the Warrant Exercise
Price have been or are to be made pursuant to other provisions of this
Section 3, no further adjustment of the Warrant Exercise Price shall be
made by reason of such issue or sale.
(c) Change in Option Price or Conversion Rate. Upon the happening of
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any of the following events, namely, if the purchase price provided for in
any Option referred to in paragraph (a), the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities
referred to in paragraph (a) or (b), or the rate at which any Convertible
Securities referred to in paragraph (a) or (b) are convertible into or
exchangeable for Common Stock shall change at any time (other than under or
by reason of provisions designed to protect against dilution), the Warrant
Exercise Price in effect at the time of such event shall forthwith be
readjusted to the Warrant Exercise Price which would have been in effect at
such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially granted, issued
or sold; and on the expiration any such Option or the termination of any
such right to convert or exchange such Convertible Securities, the Warrant
Exercise Price then in effect hereunder shall forthwith be increased to the
Warrant Exercise Price which would have been in effect at
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the time of such expiration or termination had such Option or Convertible
Security, to the extent outstanding immediately prior to such expiration
or termination, never been issued, and the Common Stock issuable
thereunder shall no longer be deemed to be outstanding.
If the purchase price provided for in any such Option referred to in
paragraph (a) or the rate at which any Convertible Securities referred to
in paragraph (a) or (b) are convertible into or exchangeable for Common
Stock, shall be reduced at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then in case of the
delivery of Common Stock upon the exercise of any such Option or upon
conversion or exchange of any such Convertible Security, the Warrant
Exercise Price then in effect hereunder shall forthwith be adjusted to such
respective amount as would have been obtained had such Option or
Convertible Security never been issued as to such Common Stock and had
adjustments been made upon the issuance of the shares of Common Stock
delivered as aforesaid, but only if as a result of such adjustment the
Warrant Exercise Price then in effect hereunder is thereby reduced.
(d) Stock Dividends. In case the Corporation shall declare a dividend
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or make any other distribution upon any stock of the Corporation payable in
Common Stock, Options or Convertible Securities, any Common Stock, Options
or Convertible Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued or sold
without consideration, and the Warrant Exercise Price shall be reduced as
if the Corporation had subdivided its outstanding shares of Common Stock
into a greater number of shares, as provided in paragraph (h).
(e) Consideration for Stock. In case any shares of Common Stock,
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Options or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received
by the Corporation therefor, without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid or allowed by
the Corporation in connection therewith. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the consideration other than
cash received by the Corporation shall be deemed to be the fair value of
such consideration as determined by the Board of Directors of the
Corporation, without deduction of any expenses incurred or any underwriting
commissions on concessions paid or allowed by the Corporation in connection
therewith. In case any Options shall be issued in connection with the issue
and sale of other securities of the Corporation, together comprising one
integral transaction in which no specific consideration is allocated to
such Options by the parties thereto, such Options shall be deemed to have
been issued without consideration, and the Warrant Exercise Price shall be
reduced as if the Corporation had subdivided its outstanding shares of
Common Stock into a greater number of shares as provided in paragraph (h).
(f) Record Date. In case the Corporation shall take a record of the
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holders of its Common Stock for the purpose of entitling them (i) to
receive a dividend or other
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distribution payable in Common Stock, Options or Convertible Securities,
or (ii) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be, provided that such shares of Common Stock
shall in fact have been issued or sold.
(g) Treasury Shares. The number of shares of Common Stock outstanding
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at any given time shall not include shares owned or held by or for the
account of the Corporation, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purposes of this
Section 3.
(h) Subdivision or Combination of Stock. In case the Corporation shall
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at any time subdivide its outstanding shares of Common Stock into a greater
number of shares, the Warrant Exercise Price in effect immediately prior to
such subdivision shall be proportionately reduced, and conversely, in case
the outstanding shares of Common Stock of the Corporation shall be combined
into a smaller number of shares, the Warrant Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
(i) Certain Issues of Common Stock Excepted. Anything herein to the
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contrary notwithstanding, the Corporation shall not be required to make any
adjustment of the Warrant Exercise Price upon the occurrence of any of the
lowing events: (i) the issuance of Common Stock upon conversion of
outstanding shares of Series A Convertible Preferred Stock, no par value,
of the Corporation, (ii) the issuance to employees, officers and directors
of the Corporation of options (net of any such options cancelled) to
acquire up to 221,400 shares of Common Stock and the issuance of up to
221,400 shares of Common Stock upon the exercise of such options, (iii) the
issuance to Malcolm P. Appelbaum of a warrant to acquire up to an aggregate
6,750 shares of Common Stock and the issuance of up to an aggregate. 6,750
shares of Common Stock upon the exercise of such warrant, and (iv) the
issuance to Ken Hawk of 147,600 shares of Common Stock pursuant to that
certain Restricted Stock Purchase Agreement dated as of the date hereof,
between the Corporation and Ken Hawk.
(j) Reorganization, Reclassification, Consolidation, Merger or Sale.
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If any capital reorganization or reclassification of the capital stock of
the Corporation or any consolidation or merger of the Corporation with
another corporation, or the sale of all or substantially all of its assets
to another corporation shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities or assets with
respect to or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provisions shall be made whereby each holder of the Warrants shall
thereafter have the right to receive upon
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the basis and upon the terms and conditions specified herein and in lieu
of the shares of Common Stock of the Corporation immediately theretofore
receivable upon the exercise of such Warrants, such shares of stock,
securities or assets (including cash) as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such
Common Stock equal to the number of shares of such stock immediately
theretofore so receivable had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of such holder to the end that the provisions hereof (including
without limitation provisions for adjustments of the Warrant Exercise
Price) shall thereafter be applicable, as nearly as may be, in relation
to any shares of stock, securities or assets thereafter deliverable upon
the exercise of such exercise rights (including an immediate adjustment,
by reason of such reorganization or reclassification, of the Warrant
Exercise Price to the value for the Common Stock reflected by the terms of
such reorganization or reclassification if the value so reflected is less
than the Warrant Exercise Price in effect immediately prior to such
reorganization or reclassification). In the event of a merger or
consolidation of the Corporation as result of which a greater or lesser
number of shares of common stock of the surviving corporation are issuable
to holders of Common Stock of the Corporation outstanding immediately prior
to such merger or consolidation, the Warrant Exercise Price in effect
immediately prior to such merger or consolidation shall be adjusted in the
same manner as though there were a subdivision or combination of the
outstanding shares of Common Stock of the Corporation. The Corporation will
not effect any such consolidation, merger or any sale of all or
substantially all of its assets of properties, unless prior to the
consummation thereof the successor corporation (if other than the
Corporation) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument executed and
mailed or delivered to each holder of the Warrants at the last address of
such holder appearing on the books of the Corporation, the obligation to
deliver to such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
receive.
(k) Notice of Adjustment. Upon any adjustment of the Warrant Exercise
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Price, then and in each such case, the Corporation shall give written
notice thereof, by first class mail, postage prepaid, addressed to each
holder of the Warrants at the address of such holder as shown on the books
of the Corporation, which notice shall state the Warrant Exercise Price
resulting from such adjustment, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
(l) Certain Events. If any event occurs as to which in the opinion of
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the Board of Directors of the Corporation the other provisions of this
Section 3 are not strictly applicable or if strictly applicable would not
fairly protect the exercise rights of this Warrant, in accordance with the
essential intent and principles of such provisions to protect against
dilution, then such Board of Directors shall in good faith make an
adjustment in the application of such provisions, in accordance with such
essential intent
8
and principles, so as to protect such exercise rights as aforesaid.
(m) Stock to Be Reserved. The Corporation will at all times reserve
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and keep available out of its authorized Common Stock or its treasury
shares, solely for the purpose of issue upon the exercise of this Warrant
as herein provided, such number of shares of Common Stock as shall then be
issuable upon the exercise of this Warrant. The Corporation covenants that
all shares of Common Stock which shall be so issued shall be duly and
validly issued and fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issue thereof, and, without limiting
the generality of the foregoing, the Corporation covenants that it will
from time to time take all such action may be requisite to assure that the
par value per share of the Common Stock is at all times equal to or less
than the effective Warrant Exercise Price. The Corporation will take all
such action as may be necessary to assure that all such shares of Common
Stock may be so issued without violation of any applicable law or
regulation, or of any requirements of any national securities exchange upon
which the Common Stock of the Corporation may be listed. The Corporation
will not take any action which results in any adjustment of the Warrant
Exercise Price if the total number of shares of Common Stock issued and
issuable after such action upon exercise of this Warrant would exceed the
total number of shares of Common Stock then authorized by the Corporation's
Articles of Incorporation. The Corporation has not granted and will not
grant any right of first refusal with respect to shares issuable upon
exercise of this Warrant, and there are no preemptive rights associated
with such shares.
(n) Issue Tax. The issuance of certificates for shares of Common Stock
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upon exercise of the Warrants shall be made without charge to the holders
of such Warrants for any issuance tax in respect thereof provided that the
Corporation 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 any holder of the Warrants.
(o) Closing of Books. The Corporation will at no time close its
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transfer books against the transfer of the shares of Common Stock issued or
issuable upon the exercise of this Warrant in any manner which interferes
with the timely exercise of this Warrant.
(p) Definition of Common Stock. As used herein the term "Common Stock"
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shall mean and include the Common Stock, no par value, of the Corporation
as authorized on June 14, 1996, and also any capital stock of any class of
the Corporation hereinafter authorized which shall not be limited to a
fixed sum or percentage in respect of the rights of the holders thereof to
participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; provided, however, that the shares purchasable pursuant to
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this Warrant shall include only shares designated as Common Stock, no par
value, of the Corporation on June 14, 1996, or shares of any class or
classes resulting from any reclassification or reclassifications thereof
which are not limited to any such fixed sum or percentage and
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are not subject to redemption by the Corporation and, in case at any time
there shall be more than one such resulting class, the shares of each
class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears the total number of shares of all such classes
resulting from all such reclassifications.
Section 4. Notices of Record Dates. In the event of
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(1) any taking by the Corporation of a record of the holders of any
class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution (other than cash
dividends out of earned surplus), or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(2) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of the
Corporation or any transfer of all or substantially all the assets of the
Corporation to or consolidation or merger of the Corporation with or into
any other corporation, or
(3) any voluntary or involuntary dissolution, liquidation or winding--
up of the Corporation,
then and in each such event the Corporation will give notice to the holder
of this Warrant specifying (i) the date on which any such record is to be
taken for the purpose of such dividend, distribution or right and stating
the amount and character of such dividend, distribution or right, and (ii)
the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation
or winding-up is to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock will be entitled to exchange
their shares of Common Stock for securities or other property deliverable
upon such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up. Such notice
shall be given at least twenty (20) days and not more than ninety (90) days
prior to the date therein specified, and such notice shall state that the
action in question or the record date is subject to the effectiveness of a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") or to a favorable vote of stockholders, if either is
required.
Section 5. Registration Rights. The rights of the holder hereof with
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respect to the registration under the Securities Act of the shares of Common
Stock issuable upon exercise of this Warrant are set forth in the Registration
Rights Agreement, dated as of the date hereof, among the Corporation and the
several parties thereto.
Section 6. No Stockholder Rights or Liabilities. This Warrant shall
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not entitle the
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holder hereof to any voting rights or other rights as a stockholder of the
Corporation. No provision hereof, in the absence of affirmative action by the
holder hereof to purchase shares of Common Stock, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Warrant Exercise Price or as a stockholder of
the Corporation, whether such liability is asserted by the Corporation or by
creditors of the Corporation.
Section 7. Investment Representation and Legend. The holder, by
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acceptance of the Warrant, represents and warrants to the Corporation that it is
acquiring the Warrant and the shares of Common Stock (or other securities)
issuable upon the exercise hereof for investment purposes only and not with a
view towards the resale or other distribution thereof and agrees that the
Corporation may affix upon this Warrant the following legend:
"This Warrant has been issued in reliance upon the representation of
the holder that it has been acquired for investment purposes and not
with a view towards the resale or other distribution thereof. Neither
this Warrant nor the shares issuable upon the exercise of this Warrant
have been registered under the Securities Act of 1933, as amended."
The holder, by acceptance of this Warrant, further agrees that the
Corporation may affix the following legend to certificates for shares of
Common Stock issued upon exercise of this Warrant:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE ACT OR
UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION AN
EXEMPTION FROM REGISTRATION IS AVAILABLE."
Section 8. Lost. Stolen. Mutilated or Destroyed Warrant. If this
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Warrant is lost, stolen, mutilated or destroyed, the Corporation may, on such
terms as to indemnity or otherwise as it may in its discretion reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Corporation, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 9. Notices. All notices, requests and other communications
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required or permitted to be given or delivered hereunder shall be in writing,
and shall be delivered, or shall be sent by certified or registered mail,
postage prepaid and addressed, if to the holder to such holder at the address
shown on such holder's Warrant or Warrant Shares or at such other address
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as shall have been furnished to the Corporation by notice from such holder. All
notices, requests and other communications required or permitted to be given or
delivered hereunder shall be in writing, and shall be delivered, or shall be
sent by certified or registered mail, postage prepaid and addressed to the
Corporation at such address as shall have been furnished to the holder by
notice from the Corporation.
IN WITNESS WHEREOF, BATTERY EXPRESS, INC. has executed this Warrant on
and as of the day and year first above written.
BATTERY EXPRESS, INC.
By: /s/ Ken Hawk
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Ken Hawk
President
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SUBSCRIPTION AGREEMENT
To:
Dated:
The undersigned, pursuant to the provisions of the Stock Subscription
Warrant (the "Warrant") issued by Battery Express, Inc. and held by the
undersigned, hereby agrees to subscribe for and purchase [ ] shares of
Common Stock covered by such Warrant, and
[ ] i) makes cash payment herewith in full therefor at the price per share
provided by such Warrant;
[ ] ii) surrenders to the Company promissory notes or other obligations issued
by the Company, in accordance with Section 1(b) (ii) of such Warrant, as payment
herewith in full therefor at the price per share provided by such Warrant;
[ ] iii) delivers to the Company other securities issued by the Company, in
accordance with Section 1(b) (iii) of such Warrant, as payment herewith in full
therefore at the price per share provided by such Warrant; and/or
[ ] iv) elects Net Issue Exercise as provided in Section 1(b)(iv) of such
Warrant.
(Check any combination of (i) through (iv) above.)
Name of Holder:
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Signature:
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Address:
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