EX-4.1
Right to Purchase Shares of Common Stock
EXHIBIT 4.1
Right to Purchase Shares of Common Stock
of
BPI PACKAGING TECHNOLOGIES, INC.
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SHALL
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS.
No. W - 1999-7
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Common Stock Purchase Warrant
BPI Packaging Technologies, Inc., a Delaware corporation (the "Company")
hereby certifies that, for value received, Global Financial Services, Inc. (the
"Investor") or its successors or assigns, is entitled, subject to the terms set
forth below, to purchase from the Company at any time or from time to time after
the date hereof five hundred thousand (500,000) fully paid and non-assessable
shares of Common Stock (as defined in Section 12 hereof), at an initial purchase
price per share of $.20 (such price per share as adjusted from time to time as
provided herein is referred to herein as the "Exercise Price"). The number and
character of such shares of Common Stock and the Exercise Price are subject to
adjustment as provided herein. For purposes of determining the number of shares
of Common Stock issuable to the Investor, all computations hereunder shall be
made on a fully diluted basis after giving effect to the exercise of all
outstanding warrants, options, rights, agreements, or other commitments or
obligations of any kind of the Company to issue shares of Common Stock that
exist, whether or not then exercisable, on any date the Investor exercises this
Warrant.
1. DEFINITIONS.
Certain terms are used in this Warrant as specifically defined in Section
12 hereof.
2. EXERCISE OF WARRANT.
2.1 Exercise. This Warrant may be exercised at any time from and after the
date hereof, by surrender of this Warrant, with the form of subscription at the
end hereof duly executed by such holder, to the Company at its principal office,
accompanied by payment, by certified or official bank check payable to the order
of the Company in the amount obtained by multiplying the number of shares of
Common Stock for which this Warrant is then exercisable by the Exercise Price
then in effect. If the Warrant is not exercised in full, the Company, at its
expense, will forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant or Warrants of like tenor, in the name of the holder hereof
or as such holder (upon payment by such holder of any applicable transfer taxes)
may request, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of such shares (without giving effect to any adjustment
therein) for which this Warrant shall have been exercised.
2.2 Stock Receivable upon Exercise. The shares of Common Stock receivable
upon exercise of this Warrant shall be shares of the Company's voting Common
Stock, par value $.01 per share.
2.3 Termination of the Warrant. Unless previously exercised, this Warrant
shall terminate on January 27, 2003.
2.4. Warrant Agent. If a bank or trust company shall have been appointed
as trustee for the holder of the Warrant pursuant to Section 5.2 hereof, such
bank or trust company shall have all the powers and duties of a warrant agent
appointed pursuant to Section 13 hereof and shall accept, in its own name for
the account of the Company or such successor entity as may be entitled thereto,
all amounts otherwise payable to the Company or such successor, as the case may
be, on exercise of this Warrant pursuant to this Section 2.
3. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
As soon as practicable after the exercise of this Warrant in full or in
part, and in any event within ten (10) days thereafter, the Company at its
expense (including the payment by it of any applicable issue taxes) will cause
to be issued in the name of and delivered to the holder hereof, or as such
holder (upon payment by such holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of fully paid and
non-assessable shares of Common Stock (or Other Securities) to which such holder
shall be entitled on such exercise, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise.
3.1 Fractional Shares. In the event that the exercise of this Warrant, in
full or in part, results in the issuance of any fractional share of Common
Stock, then in such event the holder of this Warrant shall be entitled to cash
equal to the fair market value of such fractional share as determined in good
faith by the Company's Board of Directors.
4. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS, RECLASSIFICATIONS AND FOR
CERTAIN SALES.
4.1 Dividends, Distributions and Reclassifications. In case at any time or
from time to time, the holders of Common Stock shall have received, or (on or
after the record date fixed for the determination of stockholders eligible to
receive) shall have become entitled to receive, without payment therefor:
(a) other or additional stock or other securities or property (other than
cash) by way of dividend; or
(b) other or additional (or less) stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares, or similar corporate restructuring;
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 6
hereof), then and in each such case the holder of this Warrant, on the exercise
hereof as provided in Section 2 hereof, shall be entitled to receive the amount
of stock and other securities and property (including cash in the case referred
to in subsection (b) of this Section 4) that such holder would have received
prior to or would have
held on the date of such exercise if on the date hereof he had been the holder
of record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and all such other or
additional stock and other securities and property (including cash in the case
referred to in subsection (b) of this Section 4) receivable by such holder as
aforesaid during such period, giving effect to all further adjustments called
for during such period by Sections 5 and 6 hereof.
4.2 Adjustment for Issue or Sale at Less than Exercise Price. Other than
as set forth in Section 4.1, if at any time the Company shall issue or sell
shares of its Common Stock for a consideration per share less than the Exercise
Price then in effect, then and in each such case the holder of this Warrant
shall be entitled to receive, in lieu of the shares of Common Stock theretofore
receivable upon the exercise of this Warrant, a number of shares of Common Stock
determined by (a) dividing the Exercise Price per share at the time in effect by
a Pro Forma Adjusted Purchase Price per share to be computed as provided below,
and (b) multiplying the resulting quotient by the number of shares of Common
Stock then issuable upon exercise of this Warrant. Such Pro Forma Adjusted
Purchase Price shall be computed by dividing
(i) the sum of (x) the result obtained by multiplying the number of
shares of Common Stock of the Company outstanding immediately prior to
such issue or sale by the Exercise Price per share at the time in effect,
and (y) the consideration, if any, received by the Company upon such issue
or sale, by
(ii) the number of shares of Common Stock of the Company outstanding
immediately after such issue or sale.
5. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER.
5.1 Certain Adjustments. In case at any time or from time to time, the
Company shall (i) effect a capital reorganization, reclassification, or
recapitalization, (ii) consolidate with or merge into any other Person, or (iii)
transfer all or substantially all of its properties or assets to any other
Person under any plan or arrangement contemplating the dissolution of the
Company, then in each such case, the holder of this Warrant, on the exercise
hereof as provided in Section 2 hereof and payment of the Exercise Price, at any
time after the consummation of such reorganization, recapitalization,
consolidation, or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Common Stock (or Other Securities)
issuable on such exercise prior to such consummation or effective date, the
stock and other securities and property (including cash) to which such holder
would have been entitled upon such consummation or in connection with such
dissolution, as the case may be, if such holder had so exercised this Warrant
immediately prior thereto, all subject to further adjustment thereafter as
provided in Sections 4 and 6 hereof.
5.2 Appointment of Trustee for Warrant Holders Upon Dissolution. In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall, at its expense, deliver or cause to be delivered the stock
and other securities and property (including cash, where applicable) receivable
by the holders of the Warrant after the effective date of such dissolution
pursuant to this Section 5 to a bank or trust company having an office in
Boston, Massachusetts, as trustee for the holder or holders of the Warrant.
5.3 Continuation of Terms. Upon any reorganization, consolidation, merger,
or transfer (and any dissolution following any transfer) referred to in this
Section 5, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation, or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the Person acquiring all or substantially all of the
properties or assets of the Company, whether or not such Person shall have
expressly assumed the terms of this Warrant as provided herein.
6. ADJUSTMENTS FOR ISSUANCE OF COMMON STOCK AND AMOUNT OF OUTSTANDING
COMMON STOCK.
6.1 General. If at any time there shall occur any stock split, stock
dividend, reverse stock split, or other subdivision of the Company's Common
Stock ("Stock Event"), then the number of shares of Common Stock to be received
by the holder of this Warrant shall be appropriately adjusted such that the
proportion of the number of shares issuable hereunder to the total number of
shares of the Company (on a fully diluted basis) prior to such Stock Event is
equal to the proportion of the number of shares issuable hereunder after such
Stock Event to the total number of shares of the Company (on a fully diluted
basis) after such Stock Event. No adjustment to the Exercise Price shall be made
in connection with any adjustment of the number of shares of Common Stock
receivable upon exercise of this Warrant, except that the Exercise Price shall
be proportionately decreased upon the occurrence of any stock split or other
subdivision of the Common Stock. The Rights Offering contemplated by Section 21
of that certain Securities Purchase Agreement between the Company and DGJ,
L.L.C. dated January 27, 1999 shall not trigger adjustments hereunder.
6.2 Other Issuances of Common Stock. Unless the holder of this Warrant
shall otherwise agree, if at any time there shall be any increase in the number
of shares of Common Stock outstanding or which the Company is obligated to
issue, or covered by any option, warrant, or convertible security which is
outstanding or which the Company is obligated to issue, then the number of
shares of Common Stock to be received by the holder of this Warrant shall be
adjusted to that number determined by multiplying the number of shares of Common
Stock purchasable hereunder prior thereto by a fraction (i) the numerator of
which shall be the number of shares of Common Stock outstanding or which the
Company is obligated to issue, or covered by options, warrants, or convertible
securities which the Company is obligated to issue, immediately after such
increase, and (ii) the denominator of which shall be the number of shares of
Common Stock outstanding or which the Company is obligated to issue, or covered
by options, warrants, or convertible securities which are outstanding or which
the Company is obligated to issue, immediately prior to such increase.
Thereupon, the Exercise Price shall be correspondingly reduced so that the
aggregate Exercise Price shall be correspondingly reduced so that the aggregate
Exercise Price for all shares of Common Stock covered hereby shall remain
unchanged. The provisions of this Section 6.2 shall not apply to any issuance of
additional Common Stock for which an adjustment is provided under Section 6.1
hereof.
6.3 Other Securities. In case any Other Securities shall have been issued,
or shall then be subject to issue upon the conversion or exchange of any stock
(or Other Securities as defined in Section 12 hereof) of the Company (or any
other issuer of Other Securities or any other entity referred to in Section 5
hereof) or to subscription, purchase, or other acquisition pursuant to any
rights or options granted by the Company (or such other issuer or entity), the
holder hereof shall be entitled to receive upon exercise hereof such amount of
Other Securities (in lieu of or in addition to Common Stock) as is determined in
accordance with the terms hereof, treating all references to Common Stock herein
as references to Other Securities to the extent applicable, and the
computations, adjustments, and readjustments provided for in this Section 6 with
respect to the number of shares of Common Stock issuable upon exercise of this
Warrant shall be made as nearly as possible in the manner so provided and
applied to determine the amount of Other Securities from time to time receivable
on the exercise of the Warrant, so as to provide the holder of the Warrant with
the benefits intended by this Section 6 and the other provisions of this
Warrant.
7. PREEMPTIVE RIGHTS.
In the event the Company hereafter issues additional Common Stock, or
securities convertible into Common Stock, grants any rights or options to
subscribe for or purchase any such securities, or enters into any agreements or
issues any warrants providing for the issuance of any such securities, then each
Warrant holder shall have the preemptive right to subscribe for and to purchase,
at the same price such securities, rights, options or warrants shall be issued
or granted to any other Person, an amount of such securities, rights, option,
agreement or warrants equal to that amount sufficient to preserve the percentage
interest in the Company beneficially owned by the Warrant holder. Such right may
be exercised for not more than thirty (30) days after notice of such right is
received by the Warrant holder.
8. NO DILUTION OR IMPAIRMENT.
The Company will not, by amendment of its Articles 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 of the Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate to protect the
rights of the holder of the Warrant against dilution or other impairment.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any shares of stock receivable on the exercise of the
Warrant above the amount payable therefor on such exercise, (ii) will take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and non-assessable shares of stock on the
exercise of the Warrant from time to time outstanding, and (iii) will not
transfer all or substantially all of its properties and assets to any other
entity (corporate or otherwise), or consolidate with or merge into any other
entity or permit any such entity to consolidate with or merge into the Company
(if the Company is not the surviving entity), unless such other entity shall
expressly assume in writing and will be bound by all the terms of this Warrant
and the Agreement.
9. ACCOUNTANTS' CERTIFICATE AS TO ADJUSTMENTS.
In each case of any event that may require any adjustment or readjustment
in the shares of Common Stock issuable on the exercise of this Warrant, the
Company at its expense will promptly cause independent certified public
accountants selected by the Board of Directors to compute such adjustment or
readjustment, if any, in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment or readjustment, or stating the
reasons why no adjustment or readjustment is being made, and showing, in detail,
the facts upon which any such adjustment or readjustment is based, including a
statement of (i) the number of shares of the Company's Common Stock then
outstanding on a fully diluted basis, and (ii) the number of
shares of Common Stock to be received upon exercise of this Warrant, in effect
immediately prior to such adjustment or readjustment and as adjusted and
readjusted (if required by Section 6) on account thereof. The Company will
promptly mail a copy of each such certificate to each holder of a Warrant, and
will, on the written request at any time of any holder of a Warrant, furnish to
such holder a like certificate setting forth the calculations used to determine
such adjustment or readjustment.
10. NOTICES OF RECORD DATE.
In the event of:
(a) any taking by the Company 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, 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
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or any consolidation
or merger of the Company with or into any other Person; or
(c) any voluntary or involuntary dissolution, winding-up of the
Company, or liquidation; or
(d) any proposed issue or grant by the Company of any shares of
stock of any class or any other securities, or any right or option to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities (other than the issue of Common Stock on the
exercise of this Warrant),
then, and in each such event, the Company will mail or cause to be mailed to the
holder of this Warrant a notice 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, (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 (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation, or winding-up, and
(iii) the amount and character of any stock or other securities, or rights or
options with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the Persons or class of Persons to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed at
least thirty (30) days prior to the date specified in such notice on which any
such action is to be taken.
11. RESERVATION OF STOCK ISSUANCE ON EXERCISE OF WARRANT.
The Company will at all times reserve and keep available, solely for
issuance and delivery on the exercise of the Warrant, a number of shares of its
Common Stock equal to the total number of shares of Common Stock from time to
time issuable upon exercise of the Warrant, and, from time to time, will take
all steps necessary to amend its Articles to provide sufficient reserves of
shares of Common Stock issuable upon exercise of the Warrant.
12. DEFINITIONS.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
12.1 The term "Company" shall include BPI Packaging Technologies, Inc.,
and any corporation that succeeds to or assumes the obligations of the Company
hereunder.
12.2 The term "Common Stock" means (i) the Company's voting Common Stock,
par value $.01 per share, (ii) any other capital stock of any class or classes
(however designated) of the Company, the holders of which shall have the right,
without limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and (iii) any other
securities into which or for which any of the securities described in clauses
(i) or (ii) above have been converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets, or otherwise.
12.3 The term "Other Securities" refers to any capital stock (other than
Common Stock) and other securities of the Company or any other entity (corporate
or otherwise) (i) which the holder of this Warrant at any time shall be entitled
to receive, or shall have received, on the exercise of this Warrant, in lieu of
or in addition to Common Stock, or (ii) which at any time shall be issuable or
shall have been issued in exchange for or in replacement of Common Stock or
Other Securities, in each case pursuant to Section 4 or 5 hereof.
13. WARRANT AGENT.
The Company may, by written notice to the holder of this Warrant, appoint
an agent having an office in Boston, Massachusetts, for the purpose of issuing
common Stock on the exercise of this Warrant pursuant to Section 2 hereof, and
exchanging or replacing this Warrant or any of the foregoing, and thereafter any
such issuance, exchange or replacement, as the case may be, shall be made at
such office by such agent.
14. REMEDIES.
The Company stipulates that the remedies at law of the holder of this
Warrant in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
15. NOTICES.
All notices and other communications from the Company to the holder of
this Warrant shall be mailed by first class registered or certified mail,
postage prepaid, at such address as may have been furnished to the Company in
writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
16. MISCELLANEOUS.
In case any provision of this Warrant shall be invalid, illegal or
unenforceable, or partially invalid, illegal or unenforceable, the provision
shall be enforced to the extent, if any, that it may legally be enforced and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be governed by and construed in
accordance with the domestic substantive laws (and not the conflict of law
rules) of the State of Delaware. The headings in this Warrant are for purposes
of reference only, and shall not limit or otherwise affect any of the terms
hereof. This Warrant shall take effect as an instrument under seal.
FORM OF SUBSCRIPTION TO PURCHASE
(To Be Executed by the Holder if the Holder Desires to Exercise Warrants
Evidenced by the Foregoing Warrant)
To: BPI PACKAGING TECHNOLOGIES, INC.
The undersigned hereby irrevocably elects to exercise _____ Warrants
evidenced by the foregoing Warrant for, and to purchase thereunder, ____ shares
of Common Stock issuable upon exercise of said Warrants and delivery of
$_____________ in cash, and any applicable taxes payable by the undersigned
pursuant to such warrant.
The undersigned requests that certificates for such shares be issued in
the name of
__________________________________
__________________________________
__________________________________
(Please print name and address)
If said number of Warrants shall not be all the Warrants evidenced by the
foregoing Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to
__________________________________
__________________________________
__________________________________
(Please print name and address)
Dated: ______________, ____ Name of Holder
(Print)
By: _____________________________
Name:
Title:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, ________________________________ hereby sells, assigns
and transfers to each assignee set forth below all of the rights of the
undersigned in and to the number of Warrants (as defined in and evidenced by the
foregoing Warrant) set opposite the name of such assignee below and in and to
the foregoing Warrant with respect to said Warrants and the shares of Common
Stock issuable upon exercise of said Warrants:
Number
Name of Assignee Address of Warrants
---------------- ------- -----------
_________________ ___________________ ___________
_________________ ___________________ ___________
_________________ ___________________ ___________
_________________ ___________________ ___________
If the total of said Warrants shall not be all the Warrants evidenced by
the foregoing Warrant, the undersigned requests that a new Warrant Certificate
evidencing the Warrants not so assigned be issued in the name of and delivered
to the undersigned.
Name of Holder
(Print): ________________________
Dated: ____________, ____ By: _______________________________
Name:
Title:
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer and its corporate seal to be impressed hereon and
attested by its Secretary.
ATTEST: BPI PACKAGING TECHNOLOGIES, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Secretary By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
[CORPORATE SEAL]
Dated as of January 27, 1999