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 OF COMMON STOCK
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF SOLIGEN TECHNOLOGIES, INC.
Void After December 11, 2002
FOR VALUE RECEIVED, SOLIGEN TECHNOLOGIES, INC., a Wyoming
corporation (the "Company"), hereby grants to _________________ (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 ______________________ fully paid and
nonassessable shares of Common Stock of the Company. The exercise price
shall be $0.50 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.
Section 1. DEFINITIONS.
As used in this Warrant, unless the context otherwise requires:
"AGREEMENT" means that certain Subordinated Promissory Note
Purchase Agreement, of even date herewith, between the Company and the
Purchasers named therein.
"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.
"COMMON STOCK" means the Common Stock of the Company.
- 1 -
"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 the earlier of (a) 12:00 midnight (Los
Angeles time) on December 11, 2002, and (b) thirty (30) days after notice has
been delivered in accordance with Section 2.1(b) hereof.
"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.
Section 2. DURATION AND EXERCISE OF WARRANT.
2.1 EXERCISE PERIOD.
(a) 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; and
(b) The Company shall have the right to give notice, in
accordance with Section 11.2, of the early expiration of this
Warrant at any time after the following conditions have been
satisfied:
- 2 -
(i) the Company's Common stock shall have traded above
one dollar and fifty cents per share (unadjusted for splits or
stock dividends) for twenty (20) consecutive trading days on
any nationally recognized stock exchange or NASDAQ following
the earliest date of the satisfaction of condition;
(ii) the average weekly trading volume of the Company's
Common Stock during such twenty (20) consecutive trading days
is equal to or greater than 400,000 shares of Common Stock
(adjusted downward for any reverse splits);
(iii) the shares of Common Stock to be issued upon
such exercise have been registered under the Securities Act
and may be freely sold by the holders of such shares under the
Securities Act or, if not so registered, all such shares of
Common Stock must be eligible to be sold by the holders
pursuant to Rule 144(k) promulgated under the Securities Act;
AND
(iv) the Company's earnings per share, on a fully-taxed
basis, calculated according to GAAP and on a fully-diluted
basis (giving effect to the conversion of all convertible
securities and including outstanding warrants and options
using the Treasury Method) for the trailing four (4) quarters
shall in aggregate be no less than $0.10.
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 the Exercise Form attached hereto, 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 2.2(a), fair market value shall be determined as follows:
(i) if the Company's Common Stock is publicly traded at the time of
exercise, fair market value shall be determined by appropriate
reference to the prices or quotes available for the most recent
purchases and sales of the Company's Common Stock as of the last
business day prior to the date of such exercise; and (ii) if the
Company's Common Stock is not publicly traded at the time of
exercise, fair market value shall be deemed to be the fair value of
the Common Stock as determined in good faith by the Company's Board
of Directors after taking into consideration all factors that it
deems appropriate, including, without limitation, recent sale and
offer prices of the Common Stock in private transactions negotiated
at arm's length.
- 3 -
(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.
(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. Unless
the issuance of the Warrant Shares shall have been registered under the
Securities Act, as a condition of its delivery of certificates for the
Warrant Shares, the Company may require the Warrant Holder (including the
transferee of the Warrant Shares in whose name the Warrant Shares are to be
registered) to deliver to the Company, in writing, representations regarding
the Warrant Holder's sophistication, investment intent, acquisition for his
own account and such other matters as are reasonable and customary for
purchasers of securities in an unregistered private offering. The Company
may place conspicuously upon each Subsequent Warrant and upon each
certificate representing the Warrant Shares a legend substantially in the
following form, the terms of which are agreed to by the Warrant Holder
(including such transferee):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED SOLELY
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER, PLEDGE OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS
UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT.
The Company need not register a transfer of this Warrant or the Warrant
Shares unless the conditions specified in such legend are satisfied. Subject
to the foregoing transfer restrictions set forth in this Section 2.3, this
Warrant is transferable, in whole or in part, on the books of the Company,
upon surrender of this Warrant to the Company, together with a written
assignment duly executed by the Warrant Holder and delivery of funds
sufficient to pay any transfer taxes payable by reason of such transfer.
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,
- 4 -
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 SHARE. 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:
7.1.1 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 7.1.1 shall be made with the intent and, as
nearly as practicable, the effect that 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 7.1.1.
7.1.2 MERGER OR REORGANIZATION, ETC. In the event of any
change in the Common Stock through merger, consolidation,
reclassification, reorganization, 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
- 5 -
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 applications 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.
7.2 NOTICE OF ADJUSTMENT. Whenever an event occurs requiring any
adjustment to be made pursuant to Section 7.1, 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.
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.
9.1 DEFINITIONS. For purposes of this Section 9:
(a) The term "register", "registered" and "registration"
refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the
Securities Act, and the declaration or ordering of effectiveness of
such registration statement or document;
(b) The term "Registrable Securities" means any Common Stock
issued or issuable upon exercise of this Warrant, excluding,
however, any Registrable Securities sold by a person in a
transaction in which his rights are not assigned under Section 9.6
hereof.
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common
Stock outstanding which are, and the number of shares of Common
Stock issuable pursuant to then exercisable or convertible
securities which are, Registrable Securities; and
- 6 -
(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in
accordance with Section 9.10 hereof.
9.2 COMPANY REGISTRATION.
(a) If the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders
other than the Holders) any of its capital stock or other
securities under the Securities Act in connection with the public
offering of such stock or securities solely for cash (other than a
registration on any form which does not include substantially the
same information as would be required to be included in a
registration statement covering the sale of the Registrable
Securities), the Company shall, each such time, promptly give each
Holder written notice of such registration together with a list of
the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other
state securities laws. Upon the written request of each Holder
given within twenty (20) days after giving of such written notice
by the Company in accordance with Section 11.2, the Company shall,
subject to the limitations set forth in subsection 9.2(b) below,
cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be
registered.
(b) The right of any Holder to registration pursuant to this
Section 9.2 shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into
an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 9.2, if the
underwriter determines that marketing factors require a limitation
of the number of shares to be underwritten, and: (i) if such
registration is the first registered offering of the sale of the
Company's securities to the public, then the underwriter may
(subject to the allocation priority set forth below) exclude some
or all Registrable Securities from such registration and
underwriting; or (ii) if such registration is other than the first
registered offering of the sale of the Company's securities to the
general public, then the underwriter may (subject to the allocation
priority set forth below) limit the number of Registrable
Securities to be included in the registration and underwriting to
not less than twenty-five percent (25%) of the number of securities
included therein. In the event of such a limitation, the Company
shall so advise all Holders requesting registration, and the number
of shares of securities that may be included in the registration
and underwriting shall be allocated in the following manner: The
securities of the Company held by officers and directors of the
Company (other than Registrable Securities and other than
securities held by persons who, by virtue of contracts with the
Company, are entitled to include their securities in such
registration) shall be excluded from such registration and
underwriting to the extent required by such limitation, and, if a
further limitation of the number of shares is required, the number
of shares that may be included in the
- 7 -
registration and underwriting shall be allocated among all other
holders (including Holders of Registrable Securities) thereof in
proportion, as nearly as practicable, to the respective amounts of
securities (including Registrable Securities) which would otherwise
be entitled to inclusion in such registration held by such Holders
or holders at the time of filing the registration statement. If any
Holder disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and
the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
(c) The Company's obligations under this Section 9.2 shall
terminate with respect to any Holder one year after the Expiration
Date.
9.3 EXPENSES OF REGISTRATION.
(a) As used in this Section 9.3, "Registration Expenses"
shall mean all expenses incurred by the Company in complying with
Section 9.2, hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and disbursements of
a single counsel for all Holders, blue sky fees and expenses, and
the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular
employees of the Company which would be paid in any event by the
Company); and "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale.
(b) All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to this Section
9 shall be borne by the Company; and all Selling Expenses shall be
borne by the Holders of the securities so registered pro rata on
the basis of the number of shares so registered and sold.
9.4 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 9.
9.5 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 9:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers, directors
and agents of each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the
Securities Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the 1934 Act or other federal or
state law or common law doctrine related to fraud, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a
- 8 -
"Violation"): (i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission
or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law; and the Company will pay
as incurred any legal or other expenses reasonably incurred by each
such Holder, officer, director, agent, underwriter, or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 9.8(a) shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that
it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such
Holder, officer, director, agent, underwriter or controlling
person; provided further, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates
to any such untrue statement, alleged untrue statement, omission,
or alleged omission made in a preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the
time the registration statement becomes effective, or in the
amended prospectus filed with the SEC pursuant to Rule 424(b) (the
"Final Prospectus"), such indemnity agreement shall not inure to
the benefit of any underwriter, or any Holder or any party
otherwise entitled to indemnification hereunder (if there is no
underwriter), if a copy of the Final Prospectus was not furnished
to the person or entity asserting the loss, liability, claim, or
damage at or prior to the time such action is required by the
Securities Act.
(b) Promptly after receipt by an indemnified party under this
Section 9.5 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim
in respect thereof is to be made against any indemnifying party
under this Section 9.5, notify the indemnifying party in writing of
the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if the
indemnifying party shall not have engaged counsel within a
reasonable period of time to assure the defense of such action, or
if representation of such indemnified party by the counsel retained
by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding.
The failure to notify an indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying
party of any liability to the indemnified party
- 9 -
under this Section 9.5, but the omission so to notify the
indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 9.5.
9.6 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 9 may be
assigned by a Holder to: (a) any entity which is controlling, controlled by
or under common control with any Warrant Holder, any member of Warrant
Holder's immediate family (being limited to spouses and lineal ancestors and
descendants) or any partnership composed of, or trust for the primary benefit
of, the Warrant Holder or members of such Warrant Holder's immediate family;
(b) a general or limited partner of the Warrant Holder; or (c) any other
transferee or assignee of such securities upon the transfer or assignment of
securities representing at least twenty-five percent (25%) of the total
number of shares of Warrant Shares purchased by the Warrant Holder pursuant
to this Warrant; provided that the Company is, within a reasonable time after
any such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned and an Assumption Agreement in the
form attached as EXHIBIT A to this Warrant executed by the party receiving
the assignment of registration rights pursuant to this Section 9; and
provided, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act.
9.7 "MARKET STAND-OFF AGREEMENT". The Warrant Holder hereby
agrees that it shall not, to the extent requested by the Company and any
underwriter of securities of the Company in a registered offering in which
such Warrant Holder had a right to sell Registrable Securities hereunder,
sell or otherwise transfer or dispose of any Registrable Securities during
the one hundred eighty (180) day period following the effective date of such
registration statement; PROVIDED, however, that:
(a) Such agreement shall be applicable only to the first such
registration statement of the Company which covers shares (or
securities) to be sold on its behalf to the public in an
underwritten offering; and
(b) Such agreement is conditioned upon all employees,
officers and directors of the Company and all other persons with
contractual registration rights (whether or not pursuant to this
Warrant) entering into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Warrant Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such ninety (90) day period.
9.8 MODIFICATION OF RIGHTS. Any of the terms and provisions of
this Section 9 shall be subject to modification from time to time upon
written agreement between at least fifty-one percent (51%) in interest of the
Holders and the Company.
Section 10. REPRESENTATIONS AND WARRANTIES.
- 10 -
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 its 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 it 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 its interests in connection therewith.
(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.
10.2 BY COMPANY. The Company represents and warrants to the
Warrant Holder those representations and warranties as set forth in Section
3.1 of that certain Subordinated Promissory Note Purchase Agreement, of even
date herewith, between the Company and the Purchasers named therein.
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.
11.2 NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be sent by telex
or facsimile transmission (FAX) to the number set forth below or by telegram
to the address set forth below (in each such case 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
- 11 -
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
Attn: President
Copy to:
Garvey, Schubert & Barer
1191 Second Avenue, 18th Floor
Seattle, WA 98101
FAX: 206-464-0125
Attn: Bruce A. Robertson
IF TO THE WARRANT HOLDER:
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.
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: , 1997.
------------------------
SOLIGEN TECHNOLOGIES, INC.
By
------------------------------------------
Name:
----------------------------------
Title:
----------------------------------
- 12 -
EXHIBIT A
ASSUMPTION AGREEMENT
In connection with the transfer of _________ Warrant Shares issued
or issuable pursuant to that certain Stock Purchase Warrant to Purchase
Shares of Common Stock of Soligen Technologies, Inc. dated
__________________, 1997 (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).
- 13 -