EXHIBIT 10.17
FORM OF
INTEGRAL TECHNOLOGIES, INC.
STOCK PURCHASE WARRANT
THE WARRANTS EVIDENCED HEREBY AND THE SHARES OF STOCK ISSUABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD WITHOUT REGISTRATION UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE UNDER SUCH ACT OR THE RULES OR
REGULATIONS PROMULGATED THEREUNDER
Expiration Date: December 31, 2009 No. ___
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
AS DESCRIBED HEREIN
This certifies that, for value received,__________________________________,
or its successors and assigns ("Holder"), is entitled to receive from Integral
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Technologies, Inc., a Nevada corporation (the "Company"), up to and including
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____________ fully paid and non-assessable shares (the "Number of Shares") of
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the common stock, par value $0.001 per share, of the Company (the "Common
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Stock") on the terms set forth herein, at no additional consideration by the
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Holder.
1. Exercise.
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1.1 Time for Exercise. This Warrant may be exercised in whole or
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in part at any time, and from time to time, during the period commencing on
April 30, 2004 and expiring on December 31, 2009.
1.2 Manner of Exercise. This Warrant shall be deemed exercised
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upon receipt by the Company by means of facsimile, the Notice of Exercise
attached hereto duly completed and signed by the Holder (or its agent),
specifying the number of shares as to which the Warrant is being exercised at
that time.
1.3 Effect of Exercise. Promptly (but in any case within five
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business days) after any exercise, the Company shall deliver to the Holder (i)
duly executed certificates in the name or names specified in the exercise notice
representing the aggregate number of shares issuable upon such exercise, and
(ii) if this Warrant is exercised only in part, a new Warrant of like tenor
representing the balance of the Number of Shares. Such certificates shall be
deemed to have been issued, and the person receiving them shall be deemed to be
a holder of record of such shares, as of the close of business on the date the
actions required in Section 1.2 shall have been completed or, if on that date
the stock transfer books of the Company are closed, as of the next business day
on which the stock transfer books of the Company are open.
FORM OF
2. Transfer of Warrants and Stock.
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2.1 Transfer Restrictions. Except as provided in the Securities
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Purchase Agreement dated the date hereof, the sale or re-sale of the Warrant and
the Common Stock issuable upon exercise of the Warrant has not been and is not
being registered under the Securities Act of 1933, as amended ("Securities
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Act"), or any applicable state securities laws. Neither this Warrant nor the
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securities issuable upon its exercise may be sold, transferred or pledged unless
the Company shall have been supplied with reasonably satisfactory evidence that
such transfer is not in violation of the Securities Act and any applicable state
securities laws. The Company may place a legend to that effect on this Warrant,
any replacement Warrant and each certificate representing shares issuable upon
exercise of this Warrant.
2.2 Manner of Transfer. Upon delivery of this Warrant to the
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Company with the attached assignment form duly completed and signed, the Company
will promptly (but in any case within five business days) execute and deliver to
each transferee and, if applicable, the Holder, Warrants of like tenor
evidencing the rights (i) of the transferee(s) to purchase the Number of Shares
specified for each in the assignment forms, and (ii) of the Holder to purchase
any untransferred portion, which in the aggregate shall equal the Number of
Shares of the original Warrant. If this Warrant is properly assigned in
compliance with this Section 2, it may be exercised by an assignee without
having a new Warrant issued.
2.3 Loss, Destruction of Warrant Certificates. Upon receipt of
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(i) evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of any Warrant and (ii) except in the case of
mutilation, an indemnity or security reasonably satisfactory to the Company (the
original Holder's or any other institutional Holder's indemnity agreed to be
satisfactory), the Company will promptly (but in any case within five business
days) execute and deliver a replacement Warrant of like tenor representing the
right to purchase the same Number of Shares.
2.4 Cost of Issuances. The Company shall pay all expenses,
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transfer taxes and other charges payable in connection with the preparation,
issuance and delivery of stock certificates or replacement Warrants, except for
any transfer tax or other charge imposed as a result of (i) any issuance of
stock certificates in any name other than the name of the Holder upon exercise
of the Warrant or (ii) any transfer of the Warrant. The Company shall not be
required to issue or deliver any stock certificate or Warrant until it receives
reasonably satisfactory evidence that any such tax or other charge has been paid
by the Holder.
3. Covenants. The Company agrees that:
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3.1 Reservation of Stock. During the period in which this Warrant
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may be exercised, the Company will reserve sufficient authorized but unissued
securities (and, if applicable, property) to enable it to satisfy its
obligations on exercise of this Warrant. If at any time the Company's
authorized securities shall not be sufficient to allow the exercise of this
Warrant, the Company shall take such corporate action as may be necessary to
increase its authorized but unissued securities to be sufficient for such
purpose;
3.2 No Liens, etc. All securities that may be issued upon
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exercise of this Warrant will, upon issuance, be validly issued, fully paid,
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof, and shall be listed on any exchanges or authorized for trading on
any automated systems on which that class of securities is listed or authorized
for trading;
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FORM OF
3.3 No Diminution of Value. The Company will not take any action
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to terminate this Warrant or to diminish it in value;
3.4 Furnish Information. The Company will promptly deliver to the
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Holder copies of all financial statements, reports, proxy statements and other
information which the Company shall have sent to its shareholders generally; and
3.5 Stock and Warrant Transfer Books. Except upon dissolution,
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liquidation or winding up or for ordinary holidays and weekends, the Company
will not at any time close its stock or warrant transfer books so as to result
in preventing or delaying the exercise or transfer of this Warrant.
4. General Provisions.
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4.1 Complete Agreement; Modifications. This Warrant and any
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documents referred to herein or executed contemporaneously herewith constitute
the parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof. This Warrant may not be amended, altered or modified except by a
writing signed by the parties.
4.2 Additional Documents. Each party hereto agrees to execute any
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and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Warrant.
4.3 Notices. Any notices required or permitted to be given under
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the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile and shall be effective
five days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
If to the Company:
Integral Technologies Inc.
805 W. Orchard Drive, Suite 3
Bellingham, WA 98225
Attention: William A. Ince, President
Facsimile: (360) 752-1983
Telephone: (360) 752-1982
With copy to:
Futro & Associates, P.C.
1401 - 17th Street, Suite 1150
Denver, CO 80202
Attention: Troy A. Young, Esq.
Facsimile: (303) 295-1563
Telephone: (303) 2295-3360
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FORM OF
If to a Holder:
C/o Wellington Management Company, LLP
75 State Street
Boston, MA 02109
Attention: Gina Di Mento
Facsimile: (617) 204-7535
Telephone: (617) 790-7535
Each party shall provide notice to the other party of any change in
address.
4.4 No Third-Party Benefits; Successors and Assigns. None of the
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provisions of this Warrant shall be for the benefit of, or enforceable by, any
third-party beneficiary. Except as provided herein to the contrary, this
Warrant shall be binding upon and inure to the benefit of the parties, their
respective successors and permitted assigns. The Holder may assign its rights
and obligations under this Warrant to any third party if done so in compliance
with the requirements of Section 2.
4.5 Governing Law. This Warrant shall be governed by and
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construed in accordance with the laws of the State of Nevada applicable to
agreements made and to be performed in the State of Nevada (without regard to
principles of conflict of laws). Both parties irrevocably consent to the
exclusive jurisdiction of the United States federal courts and the state courts
located in Nevada with respect to any suit or proceeding based on or arising
under this Warrant, the agreements entered into in connection herewith or the
transactions contemplated hereby or thereby and irrevocably agree that all
claims in respect of such suit or proceeding may be determined in such courts.
The Company and the Holder irrevocably waives the defense of an inconvenient
forum to the maintenance of such suit or proceeding. The Company and the Holder
further agrees that service of process upon a party mailed by first class mail
shall be deemed in every respect effective service of process upon the party in
any such suit or proceeding. Nothing herein shall affect either party's right
to serve process in any other manner permitted by law. Each of the parties
agrees that a final non-appealable judgment in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on such
judgment or in any other lawful manner.
4.6 Waivers Strictly Construed. With regard to any power, remedy
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or right provided herein or otherwise available to any party hereunder (i) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party, and (ii) no alteration, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise, or other indulgence.
4.7 Severability. The validity, legality or enforceability of the
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remainder of this Warrant shall not be affected even if one or more of its
provisions shall be held to be invalid, illegal or unenforceable in any respect.
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FORM OF
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
effective as of __________ ___, 2003.
INTEGRAL TECHNOLOGIES, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Attest:
By:_________________________
Name:_______________________
Title:______________________
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FORM OF
ASSIGNMENT FORM
(To Be Executed Upon Transfer of Warrant)
FOR VALUE RECEIVED, ______________________________ hereby sells, assigns
and transfers to the transferee named below the rights to purchase ___ of the
Number of Shares under this Warrant, together with all rights, title and
interest therein. The rights to purchase the remaining Number of Shares shall
remain the property of the undersigned. This includes a transfer of the
registration rights.
[NAME OF HOLDER]
Dated: _______________ By:__________________________________
Signature
Name:________________________________
(Please Print)
Title:_______________________________
Address:_____________________________
_____________________________
_____________________________
Employer Identification Number,
Social Security Number or other
identifying number:___________________________
TRANSFEREE:
Name:___________________________
(Please Print)
Address:________________________
________________________
________________________
Employer Identification Number,
Social Security Number or other
identifying number:__________________
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FORM OF
EXERCISE FORM
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby exercises the Warrant with regard to _____________
shares of Common Stock at no additional consideration by the Holder. The
undersigned requests that the certificate(s) for such shares and the Warrant for
the unexercised portion of this Warrant be issued to the Holder.
[NAME OF HOLDER]
Dated: __________________ By:__________________________________
Signature
Name:________________________________
(Please Print)
Title:_______________________________
Address:_____________________________
_____________________________
_____________________________
Employer Identification Number,
Social Security Number or other
identifying number:__________________
TRANSFEREE:
Name:___________________________
(Please Print)
Address:________________________
________________________
________________________
Employer Identification Number,
Social Security Number or other
identifying number:__________________
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