EXHIBIT 4.5
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT. ANY SUCH OFFER, SALE, ASSIGNMENT OR TRANSFER MUST ALSO COMPLY
WITH THE APPLICABLE STATE SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT.
RTIN HOLDINGS, INC.
SERIES C 2003 WARRANT TO PURCHASE COMMON STOCK
Warrant No.: SAW______________ Number of Shares: ______________
Date of Original Issuance: ______________, 2003
RTIN Holdings, Inc., a Texas corporation (the "Company"), hereby certifies that,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, _________________________________, the registered holder
hereof or its permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company upon surrender of this Warrant, at any time
or times on or after the Vesting Date (as defined below), but not after 11:59
P.M. Central Time on the Expiration Date (as defined herein)
________________________ (___________________) fully paid non-assessable shares
of Common Stock (as defined herein) of the Company (the "Warrant Shares") at the
purchase price as defined in Section 1(b)(xi)).
Section 1.
(a) Definitions. The following words and terms as used in this
Warrant shall have the following meanings:
(i) "Common Stock" means (i) the Company's common
stock, par value $.01 per share, and (ii) any capital stock into which such
Common Stock shall have been changed or any capital stock resulting from a
reclassification of such Common Stock.
(ii) "Convertible Securities" means any stock or
securities (other than Options) directly or indirectly convertible into or
exchangeable for Common Stock.
(iii) "Expiration Date" means the date three (3)
years from the Vesting Date or, if such date falls on a Saturday, Sunday or
other day on which banks are required or authorized to be closed in the State of
Texas or on which trading does not take place on the principal exchange or
automated quotation system on which the Common Stock is traded (a "Holiday"),
the next date that is not a Holiday.
(iv) "Options" means any rights, warrants or options
to subscribe for or purchase Common Stock or Convertible Securities.
(v) "Other Securities" means those warrants of the
Company issued prior to, and outstanding on, the date of issuance of this
Warrant.
(vi) "Person" means a natural person, a partnership,
a corporation, a limited liability company, an association or a joint stock
company, a trust, a joint venture, an unincorporated organization or a
governmental agency or any department, or agency or political subdivision
thereof.
(vii) "Securities Act" means the Securities Act of
1933, as amended and the rules and regulations promulgated thereunder.
(viii) "Vesting Date" means the date on which this
Warrant becomes exercisable, if at all, as set forth in Section 9.
(x) "Warrant" means this Warrant and all Warrants
issued in exchange, transfer or replacement of any thereof.
(ixi) "Warrant Exercise Price" means $1.50 per share,
subject to adjustment as provided in Section 8.
Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant
may be exercised by the holder hereof then registered on the books of the
Company, in whole or in part, at any time on any business day on or after the
close of business on the Vesting Date and prior to 11:59 P.M. Central Time on
the Expiration Date by (i) delivery of a written notice, in the form of the
subscription notice attached as Exhibit A hereto (the "Exercise Notice"), of
such holder's election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased, (ii) (A) payment to the Company of an
amount equal to the Warrant Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (plus any applicable issue or
transfer taxes) (the "Aggregate Exercise Price") in cash or by check or wire
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transfer or (B) by notifying the Company that this Warrant is being exercised
pursuant to a Cashless Exercise (as defined in Section 2(e)), and (iii) the
surrender to a common carrier for delivery to the Company as soon as practicable
following such date, this Warrant (or an indemnification undertaking with
respect to this Warrant in the case of its loss, theft or destruction);
provided, that if such Warrant Shares are to be issued in any name other than
that of the registered holder of this Warrant, such issuance shall be deemed a
transfer and the provisions of Section 7 shall be applicable. In the event of
any exercise of the rights represented by this Warrant in compliance with this
Section 2(a), a certificate or certificates for the Warrant Shares so purchased,
in such denominations as may be requested by the holder hereof and registered in
the name of, or as directed by, the holder, shall be delivered at the Company's
expense to, or as directed by, such holder as soon as practicable, and in no
event later than two business days, after the Company's receipt of the Exercise
Notice, the Aggregate Exercise Price and this Warrant (or an indemnification
undertaking with respect to this Warrant in the case of its loss, theft or
destruction). Upon delivery of the Exercise Notice and Aggregate Exercise Price
referred to in clause (ii)(A) above or notification to the Company of a Cashless
Exercise referred to in Section 2(d), the holder of this Warrant shall be deemed
for all corporate purposes to have become the holder of record of the Warrant
Shares with respect to which this Warrant has been exercised, irrespective of
the date of delivery of this Warrant as required by clause (iii) above or the
certificates evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than five business days after any exercise and
at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which such Warrant
is exercised.
(c) No fractional shares of Common Stock are to be issued upon
the exercise of this Warrant, but rather the number of shares of Common Stock
issued upon exercise of this Warrant shall be rounded up or down to the nearest
whole number.
(d) Notwithstanding anything contained herein to the contrary,
the holder of this Warrant may, at its election exercised in its sole
discretion, exercise this Warrant in whole or in part and, in lieu of making the
cash payment otherwise contemplated to be made to the Company upon such exercise
in payment of the Aggregate Exercise Price, elect instead to receive upon such
exercise the "Net Number" of shares of Common Stock determined according to the
following formula (a "Cashless Exercise"):
Net Number = (A x B) - (A x C)
-----------------
B
For purposes of the foregoing formula:
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A= the total number shares with respect to which this
Warrant is then being exercised.
B= the last reported sale price (as reported by
Bloomberg) of the Common Stock on the date
immediately preceding the date of the Exercise
Notice.
C= the Warrant Exercise Price then in effect at the
time of such exercise.
Section 3. Covenants as to Common Stock. The Company hereby covenants
and agrees as follows:
(a) This Warrant is, and any Warrants issued in substitution
for or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise
of the rights represented by this Warrant will, upon issuance, be validly
issued, fully paid and non-assessable and free from all taxes, liens and charges
with respect to the issue thereof.
(c) During the period within which the rights represented by
this Warrant may be exercised, the Company will at all times have authorized and
reserved at least 100% of the number of shares of Common Stock needed to provide
for the exercise of the rights then represented by this Warrant and the par
value of said shares will at all times be less than or equal to the applicable
Warrant Exercise Price.
(d) The Company shall promptly secure the listing of the
shares of Common Stock issuable upon exercise of this Warrant upon each national
securities exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed (subject to official notice of issuance upon
exercise of this Warrant) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all shares of Common Stock from
time to time issuable upon the exercise of this Warrant; and the Company shall
so list on each national securities exchange or automated quotation system, as
the case may be, and shall maintain such listing of, any other shares of capital
stock of the Company issuable upon the exercise of this Warrant if and so long
as any shares of the same class shall be listed on such national securities
exchange or automated quotation system.
(e) The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities, or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder of this
Warrant in order to protect the exercise privilege of the holder of this Warrant
against dilution or other impairment, consistent with the tenor and purpose of
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this Warrant. The Company (i) will not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the Warrant
Exercise Price then in effect, and (ii) will take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock upon the exercise of this
Warrant.
(f) This Warrant will be binding upon any entity succeeding to
the Company by merger, consolidation or acquisition of all or substantially all
of the Company's assets.
Section 4. Taxes. The Company shall pay any and all taxes which may be
payable with respect to the issuance and delivery of Warrant Shares upon
exercise of this Warrant.
Section 5. Warrant Holder Not Deemed a Stockholder. Except as otherwise
specifically provided herein, no holder, as such, of this Warrant shall be
entitled to vote or receive dividends or be deemed the holder of shares of the
Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings, receive dividends or subscription rights, or otherwise, prior to the
issuance to the holder of this Warrant of the Warrant Shares which he or she is
then entitled to receive upon the due exercise of this Warrant. In addition,
nothing contained in this Warrant shall be construed as imposing any liabilities
on such holder to purchase any securities (upon exercise of this Warrant or
otherwise) or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by creditors of the Company. Notwithstanding this
Section 5, the Company will provide the holder of this Warrant with copies of
the same notices and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the stockholders.
Section 6. Representations of Holder. The holder of this Warrant, by
the acceptance hereof, represents that it is acquiring this Warrant and the
Warrant Shares for its own account for investment only and not with a view
towards, or for resale in connection with, the public sale or distribution of
this Warrant or the Warrant Shares, except pursuant to sales registered or
exempted under the Securities Act; provided, however, that by making the
representations herein, the holder does not agree to hold this Warrant or any of
the Warrant Shares for any minimum or other specific term and reserves the right
to dispose of this Warrant and the Warrant Shares at any time in accordance with
or pursuant to a registration statement or an exemption under the Securities
Act. The holder of this Warrant further represents, by acceptance hereof, that,
as of this date, such holder is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act (an "Accredited Investor"). Upon exercise of
this Warrant, the holder shall, if requested by the Company, confirm in writing,
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in a form satisfactory to the Company, that the Warrant Shares so purchased are
being acquired solely for the holder's own account and not as a nominee for any
other party, for investment, and not with a view toward distribution or resale
and that such holder is an Accredited Investor. If such holder cannot make such
representations because they would be factually incorrect, it shall be a
condition to such holder's exercise of this Warrant that the Company receive
such other representations as the Company considers reasonably necessary to
assure the Company that the issuance of its securities upon exercise of this
Warrant shall not violate any United States or state securities laws.
Section 7. Ownership and Transfer.
(a) The Company shall maintain at its principal executive
offices (or such other office or agency of the Company as it may designate by
notice to the holder hereof), a register for this Warrant, in which the Company
shall record the name and address of the person in whose name this Warrant has
been issued, as well as the name and address of each transferee. The Company may
treat the person in whose name any Warrant is registered on the register as the
owner and holder thereof for all purposes, notwithstanding any notice to the
contrary, but in all events recognizing any transfers made in accordance with
the terms of this Warrant.
(b) This Warrant and the rights granted to the holder hereof
are transferable, in whole or in part, upon surrender of this Warrant, together
with a properly executed warrant power in the form of Exhibit B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
conditions set forth in Section 7(c) below.
(c) The holder of this Warrant understands that this Warrant
has not been and is not expected to be, registered under the Securities Act or
any state securities laws, and may not be offered for sale, sold, assigned or
transferred unless (a) subsequently registered thereunder, or (b) such holder
shall have delivered to the Company an opinion of counsel, in generally
acceptable form, to the effect that the securities to be sold, assigned or
transferred may be sold, assigned or transferred pursuant to an exemption from
such registration; provided that (i) any sale of such securities made in
reliance on Rule 144 promulgated under the Securities Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder; and (ii)
neither the Company nor any other person is under any obligation to register the
Warrants under the Securities Act or any state securities laws or to comply with
the terms and conditions of any exemption thereunder.
Section 8. Adjustment of Warrant Exercise Price and Number of Shares.
(a) The Warrant Exercise Price and the number of shares of
Common Stock issuable upon exercise of this Warrant shall be adjusted from time
to time as follows:
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(i) Adjustment of Warrant Exercise Price upon
Subdivision or Combination of Common Stock. If the Company at any time after the
date of issuance of this Warrant subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of shares of Common Stock obtainable upon exercise of this Warrant
will be proportionately increased. If the Company at any time after the date of
issuance of this Warrant combines (by combination, reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Warrant Exercise Price in effect immediately prior
to such combination will be proportionately increased and the number of shares
of Common Stock obtainable upon exercise of this Warrant will be proportionately
decreased.
(ii) Adjustment for Common Stock Dividends and
Distributions. If the Company at any time or from time to time after the date of
issuance of this Warrant makes, or fixes a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, in each such event the Warrant
Exercise Price in effect immediately prior to such issuance or, in the event
such record date is fixed as of the close of business on such record date will
be proportionately decreased and the number of shares of Common Stock obtainable
upon exercise of this Warrant will be proportionately increased as of the time
of such issuance or, in the event such record date is fixed, as of the close of
business on such record date.
(iii) Adjustment for Reclassification, Exchange and
Substitution. If at any time or from time to time after the date of issuance of
this Warrant, the Common Stock is changed into the same or a different number of
shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than an acquisition, asset transfer,
subdivision or combination of shares, stock dividend, reorganization, merger,
consolidation, or sale of assets provided for elsewhere in this Section 8(a)),
in any such event the holder hereof shall have the right thereafter to convert
such stock into the kind and amount of stock and other securities and property
receivable upon such recapitalization, reclassification or other change by
holders of the maximum number of shares of Common Stock into which such shares
of Common Stock could have been converted immediately prior to such
recapitalization, reclassification or change, all subject to further adjustment
as provided herein or with respect to such other securities or property by the
terms thereof.
(iv) Reorganizations, Mergers, Consolidations or
Sales of Assets. If at any time or from time to time after the date of issuance
of this Warrant, there is a capital reorganization of the Common Stock (other
than an acquisition, asset transfer, recapitalization, or subdivision,
combination, reclassification, exchange, or substitution of shares provided for
elsewhere in this Section 8(a)), as a part of such capital reorganization,
provision shall be made so that the holder of this Warrant shall thereafter be
entitled to receive upon exercise hereof the number of shares of stock or other
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securities or property of the Company to which a holder of the number of shares
of Common Stock deliverable upon exercise immediately prior to such event would
have been entitled as a result of such capital reorganization, subject to
adjustment in respect of such stock or securities by the terms thereof. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 8(a) with respect to the rights of the holder hereof
after the capital reorganization to the end that the provisions of this Section
8 shall be applicable after that event and be as nearly equivalent as practical.
(v) Sale of Common Stock Below Current Market Value.
If at any time or from time to time on or after the date of issuance of this
Warrant, the Company shall sell, issue or dispose of any shares of Common Stock
at a price per share that is less than 95% of the Current Market Value thereof
or shall issue or distribute any options, warrants, or other Convertible
Securities providing for the issuance of Common Stock at a price per share less
than 95% of the Current Market Value, the Warrant Exercise Price shall be
proportionately decreased and the number of shares of Common Stock issuable upon
exercise of this Warrant shall be proportionately increased as of the date of
such offering.
(vi) Special Adjustment for 2003 Pre-tax Earnings.
The Warrant Exercise Price shall be decreased by $.05 per share for each
$100,000 that the consolidated net pre-tax earnings of the Company for the 12
months ending December 31, 2003, after elimination of all revenue from the sale
of market territories and all nonrecurring income, is less than $4,800,000;
provided, however, that in no event shall the Warrant Exercise Price be reduced
below $.50 per share (as adjusted pursuant to the other subparagraphs of this
Section 8) as a result of this subparagraph.
(vii) Rounding of Calculations; Minimum Adjustment.
All calculations under this Section 8(a) shall be made to the nearest cent. Any
provision of this Section 8 to the contrary notwithstanding, no adjustment in
the Warrant Exercise Price shall be made if the amount of such adjustment would
be less than one percent, but any such amount shall be carried forward and an
adjustment with respect thereto shall be made at the time of and together with
any subsequent adjustment which, together with such amount and any other amount
or amounts so carried forward, shall aggregate one percent or more.
(viii) Timing of Issuance of Additional Common Stock
Upon Certain Adjustments. In any case in which the provisions of this Section
8(a) shall require that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence of such
event issuing to the holder of this Warrant after such record date and before
the occurrence of such event the additional shares of Common Stock or other
property issuable or deliverable upon exercise by reason of the adjustment
required by such event over and above the shares of Common Stock or other
property issuable or deliverable upon such exercise before giving effect to such
adjustment; provided, however, that the Company upon request shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares or other property, and such cash, upon
the occurrence of the event requiring such adjustment.
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(b) Statement Regarding Adjustments. Whenever the Warrant
Exercise Price shall be adjusted as provided in Section 8(a), and upon each
change in the number of shares of the Common Stock issuable upon exercise of
this Warrant, the Company shall forthwith file, at the office of any transfer
agent for this Warrant and at the principal office of the Company, a statement
showing in detail the facts requiring such adjustment and the Warrant Exercise
Price and new number of shares issuable that shall be in effect after such
adjustment, and the Company shall also cause a copy of such statement to be
given to the holder of this Warrant. Each such statement shall be signed by the
Company's chief financial or accounting officer. Where appropriate, such copy
may be given in advance and may be included as part of a notice required to be
mailed under the provisions of Section 8(c).
(c) Notice to Holders. In the event the Company shall propose
to take any action of the type described in clause (iii) or (iv) of Section
8(a), the Company shall give notice to the holder of this Warrant, in the manner
set forth in Section 11, which notice shall specify the record date, if any,
with respect to any such action and the approximate date on which such action is
to take place. Such notice shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the Warrant
Exercise Price and the number, kind or class of shares or other securities or
property which shall be deliverable upon exercise of this Warrant. In the case
of any action which would require the fixing of a record date, such notice shall
be given at least 10 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action.
(d) Current Market Price. The "Current Market Price" shall
mean, as of any date, the average, for each of the 20 consecutive Trading Days
immediately prior to such date, of either: (i) the high and low sales prices of
the Common Stock on such Trading Day as reported on the composite tape for the
principal national securities exchange on which the Common Stock may then be
listed, or (ii) if the Common Stock shall not be so listed on any such Trading
Day, the high and low sales prices of Common Stock in the over-the-counter
market as reported by the Nasdaq Stock Market for National Market Securities, or
(iii) if the Common Shares shall not be included in the Nasdaq Stock Market as a
National Market Security on any such Trading Day, the representative bid and
asked prices at the end of such Trading Day in such market as reported by the
Nasdaq Stock Market or (iv) if there be no such representative prices reported
by the Nasdaq Stock Market, the lowest bid and highest asked prices at the end
of such Trading Day in the over-the-counter market as reported by the OTC
Electronic Bulletin Board or National Quotation Bureau, Inc., or any successor
organization. For purposes of determining Current Market Price, the term
"Trading Day" shall mean a day on which an amount greater than zero can be
calculated with respect to the Common Stock under any one or more of the
foregoing categories (i), (ii), (iii) and (iv), and the "end" thereof, for the
purposes of categories (iii) and (iv), shall mean the exact time at which
trading shall end on the New York Stock Exchange. If the Current Market Price
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cannot be determined under any of the foregoing methods, Current Market Price
shall mean the fair value per share of Common Stock on such date as determined
by the Board of Directors in good faith, irrespective of any accounting
treatment.
(e) Treasury Stock. For the purposes of this Section 3.1, the
sale or other disposition of any Common Stock of the Company theretofore held in
its treasury shall be deemed to be an issuance thereof.
Section 9. Vesting, Termination Without Vesting. This Warrant shall not
be exercisable until the date (the "Vesting Date") on which the Company files
its annual report on Form 10-KSB for the fiscal year ending December 31, 2003,
and shall be exercisable from and after the Vesting Date only with respect to
the following percentage of the total Warrants represented hereby:
Percentage of Total = $4,800,000 - A x 100
--------------
$2,500,000
Where A = consolidated net pre-tax earnings of the
Company for the 12 months ending December
31, 2003 after elimination of all revenue
from the sale of market territories and all
nonrecurring income.
In Example: Should the consolidated net pre-tax earnings of the Company for the
12 months ended December 31, 2003, be reported as $4,000,000 the exercisable
warrants shall be computed as follows:
Percentage of Total = $4,800,000-$4,000,000 x 100 = 32.00% of the Warrants
issued hereunder -----------------------------
$2,500,000
Provided, however, that in no event shall the percentage of the total pursuant
to the forgoing formula exceed 100%. Any Warrants that do not vest as set forth
in this Section on the Vesting Date shall be deemed to be void and of no further
force or effect.
Section 10. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall, on receipt
of an indemnification undertaking, issue a new Warrant of like denomination and
tenor as this Warrant so lost, stolen, mutilated or destroyed.
Section 11. Notice. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this Warrant
must be in writing and will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
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If to the Company:
RTIN Holdings, Inc.
3218 Page Rd.
Longview, Texas 75605
Telephone: 903-295-6800
Facsimile: 903-234-9777
Attention: Curtis A. Swanson
If to the holder of this Warrant: at the address on the books
and records of the Company.
or to such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by prior written notice given
to each other party five days prior to the effective date of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by a nationally recognized overnight delivery service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.
Section 12. Amendments. This Warrant and any term hereof may be
changed, waived, discharged, or terminated only by an instrument in writing
signed by the party or holder hereof against which enforcement of such change,
waiver, discharge or termination is sought.
Section 13. Limitation on Number of Warrant Shares. The Company shall
not be obligated to issue any Warrant Shares upon exercise of this Warrant if
the issuance of such shares of Common Stock would cause the Company to exceed
that number of shares of Common Stock which the Company may issue upon exercise
of this Warrant (the "Exchange Cap") without breaching the Company's obligations
under the rules or regulations of Principal Market, except that such limitation
shall not apply in the event that the Company obtains the approval of its
stockholders as required by the Principal Market (or any successor rule or
regulation) for issuances of Common Stock in excess of such amount. In the event
the Company is prohibited from issuing Warrant Shares as a result of the
operation of this Section 13, the Company shall redeem for cash those Warrant
Shares which can not be issued, at a price equal to the difference between the
Market Price and the Exercise Price of such Warrant Shares as of the date of the
attempted exercise.
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Section 14. Date. This Warrant, in all events, shall be wholly void and
of no effect after 11:59 PM Central Time on the Expiration Date, except that
notwithstanding any other provisions hereof, the provisions of Section 7 shall
continue in full force and effect after such date as to any Warrant Shares or
other securities issued upon the exercise of this Warrant.
Section 15. Amendment and Waiver. The provisions of this Warrant may
only be amended upon a written instrument executed by the Company and the
holders hereof.
Section 16. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporate
laws of the State of Texas shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be
governed by the internal laws of the State of Texas, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
Texas or any other jurisdictions) that would cause the application of the laws
of any jurisdictions other than the State of Texas.
Section 17. Successors and Assigns. This Warrant shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of this Warrant. The Company shall not assign
this Warrant or any rights or obligations hereunder without the prior written
consent of the holder of this Warrant, including by merger, consolidation or
reorganization. The holder of this Warrant may assign some or all of its rights
hereunder to (i) without the consent of the Company, any person or entity who,
immediately prior to such assignment, is an affiliate of such holder (a
"Permitted Assignee") and (ii) with the prior written consent of the Company,
which consent shall not be unreasonably withheld, to any person or entity which
is not a Permitted Assignee; provided, however, that any such assignment shall
not release the holder of this Warrant from its obligations hereunder unless
such obligations are assumed by such assignee and the Company has consented to
such assignment and assumption, which consent shall not be unreasonably
withheld. Notwithstanding anything to the contrary contained herein, the holder
of this Warrant shall be entitled to pledge the this Warrant and the shares of
Common Stock issuable upon exercise of this Warrant in connection with a bona
fide margin account.
RTIN HOLDINGS, INC.
By:
----------------------------------------------
Name: Curtis A. Swanson
Title: President
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EXHIBIT A TO WARRANT
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
RTIN HOLDINGS, INC.
The undersigned holder hereby exercises the right to purchase
_________________ of the shares of Common Stock ("Warrant Shares") of RTIN
Holdings, Inc., a Texas corporation (the "Company"), evidenced by the attached
Warrant (the "Warrant"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Warrant.
1. Form of Warrant Exercise Price. The Holder intends that payment of
the Warrant Exercise Price shall be made as:
____________ a CASH EXERCISE with respect to
_______________________ Warrant Shares; and/or
____________
a CASHLESS EXERCISE with respect to
___________________ Warrant Shares (to the extent
permitted by the terms of the Warrant).
2. Payment of Warrant Exercise Price. In the event that the holder has
elected a Cash Exercise with respect to some or all of the Warrant Shares to be
issued pursuant hereto, the holder shall pay the sum of $___________________ to
the Company in accordance with the terms of the Warrant.
3. Delivery of Warrant Shares. The Company shall deliver to the holder
__________ Warrant Shares in accordance with the terms of the Warrant.
Date: _______________ __, ______
Printed Name: ___________________________________
By: ___________________________________
Name:
Title:
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EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, Federal Identification No. __________, a warrant to purchase
____________ shares of the capital stock of RTIN Holdings, Inc., a Texas
corporation, represented by warrant certificate no. _____, standing in the name
of the undersigned on the books of said corporation. The undersigned does hereby
irrevocably constitute and appoint ______________, attorney to transfer the
warrants of said corporation, with full power of substitution in the premises.
Dated: _________, ____
Name:
____________________________________
By: _______________________________
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