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EXHIBIT 10.104
WILSHIRE TECHNOLOGIES, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Warrant Agent
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WARRANT AGREEMENT
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Dated as of November 24, 1997
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TABLE OF CONTENTS*
Page
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Parties .................................................................... 2
Recitals .................................................................... 2
Section 1 Appointment of Warrant Agent........................................ 2
Section 2 Form of Warrant..................................................... 2
Section 3 Countersignature and Registration................................... 3
Section 4 Transfers and Exchanges............................................. 3
Section 5 Exercise of Warrants................................................ 4
Section 6 Payment of Taxes.................................................... 5
Section 7 Mutilated or Missing Warrants....................................... 5
Section 8 Reservation of Common Stock......................................... 6
Section 9 Warrant Price....................................................... 7
Section 10 Adjustment of Warrant Price and Number of Shares.................... 7
Section 11 Fractional Interest................................................. 13
Section 12 Notices to Warrantholders........................................... 14
Section 13 Disposition of Proceeds on Exercise of Warrants..................... 15
Section 14 Merger or Consolidation or Change of Name of Warrant Agent.......... 15
Section 15 Duties of Warrant Agent............................................. 16
Section 16 Change of Warrant Agent............................................. 18
Section 17 Identity of Transfer Agent.......................................... 19
Section 18 Notices............................................................. 19
Section 19 Supplements and Amendments.......................................... 20
Section 20 Successors.......................................................... 21
Section 21 California Contract................................................. 21
Section 22 Benefits of this Agreement.......................................... 21
Section 23 Counterparts........................................................ 21
Signatures .................................................................... 21
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* This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms and provisions.
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WARRANT AGREEMENT dated as of November 24, 1997 between Wilshire
Technologies, Inc., a California corporation (hereinafter called the "Company"),
and American Stock Transfer & Trust Company, as warrant agent (hereinafter
called the "Warrant Agent").
WHEREAS, the Company will issue up to 2,750,000 Warrants (the
"Warrants"), each entitling the registered holder thereof to purchase one share
of the Company's Common Stock without par value (the "Shares"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, and exercise of the Warrants and the
rights of the holders thereof;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows.
SECTION 1. APPOINTMENT OF WARRANT AGENT.
The Company hereby appoints the Warrant Agent to act as agent for
the Company in accordance with the instructions hereinafter set forth in this
Agreement, and the Warrant Agent hereby accepts such appointment.
SECTION 2. FORM OF WARRANT.
The text of the Warrant certificates and of the form of election to
purchase Shares to be printed on the reverse thereof shall be substantially as
set forth in Exhibit A attached hereto. The per Share warrant price and the
number of Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events, all as hereinafter provided.
The Warrants shall be executed on behalf of the Company by the
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manual or facsimile signature of the present or any future President or any Vice
President of the Company, attested by the manual or facsimile signature of the
present or any future Secretary or Assistant Secretary of the Company. Warrants
shall be dated as of the date of issuance by the Warrant Agent either upon
initial issuance or upon transfer or exchange.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION.
The Warrant Agent shall maintain books for the transfer and
registration of Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the respective
holders thereof. The Warrants shall be countersigned manually or by facsimile by
the Warrant Agent (or by any successor to the Warrant Agent then acting as
warrant agent under this Agreement) and shall not be valid for any purpose
unless so countersigned. Warrants may be so countersigned, however, by the
Warrant Agent (or by its successor as warrant agent) and be delivered by the
Warrant Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery, provided such
persons were proper officers of the Company at the time of such original
signing.
SECTION 4. TRANSFERS AND EXCHANGES.
The Warrant Agent shall transfer, from time to time, any outstanding
Warrants upon the books to be maintained by the Warrant Agent for that purpose,
upon surrender thereof for transfer properly endorsed or accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
shall be issued to the transferee and the surrendered Warrant shall be cancelled
by the Warrant Agent. Warrants so cancelled shall be delivered by the Warrant
Agent to the Company from time to time upon request. Warrants may be exchanged
at the option of the holder thereof, when surrendered at the office of the
Warrant Agent, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of shares of Common Stock.
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SECTION 5. EXERCISE OF WARRANTS.
Subject to the provisions of this Agreement, each registered holder
of a Warrant shall have the right, which may be exercised commencing on the
later of November 28, 1999 or the date on which the Shares issuable on exercise
of the Warrants shall have been registered under the Federal Securities Act of
1933, and terminating at 5:00 p.m. New York time on November 28, 2002 (the
"Warrant Expiration Date"), to purchase from the Company (and the Company shall
issue and sell to such registered holder of Warrants) the number of fully paid
and nonaccessible shares of Common Stock specified in such Warrants, upon
surrender to the Company at the office of the Warrant Agent of such Warrants,
with the form of election to purchase on the reverse thereof duly filled in and
executed, and upon payment to the Company of the Warrant Price, determined in
accordance with the provisions of Sections 9 and 10 of this Agreement, for the
number of Shares in respect of which such Warrants are then exercised. Payment
of such Warrant Price shall be made in cash or by check or bank draft to the
order of the Company. No adjustment shall be made for any dividends on any
shares of Common Stock issuable upon exercise of a Warrant. Subject to Section
6, upon such surrender of the Warrants and payment of the Warrant Price as
aforesaid, the Warrant Agent shall be authorized to send, upon the written order
of the registered holder of such Warrants, and in such name or names as such
registered holder may designate, a certificate or certificates for the number of
full shares of Common Stock so purchased upon the exercise of such Warrants. No
fractional shares of Common Stock will be issued. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Shares as of the date of the surrender of such Warrants and payment of the
Warrant Price as aforesaid. The rights of purchase represented by the Warrants
shall be exercisable, at the election of the registered holders thereof, either
as an entirety or from time to time for part only of the Shares specified
therein and, in the event that any Warrant is exercised in respect of less than
all of the Shares specified therein at any time prior to the date of expiration
of the Warrant, a new Warrant or Warrants will be issued to such registered
holder for the
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remaining number of Shares specified in the Warrant so surrendered, and the
Warrant Agent is hereby irrevocably authorized to countersign and to deliver the
required new Warrants pursuant to the provisions of this Section and of Section
3 of this Agreement and the Company, whenever requested by the Warrant Agent,
will supply the Warrant Agent with Warrants duly executed on behalf of the
Company for such purpose. After the Expiration Date, any Warrants which have not
been exercised shall be void.
SECTION 6. PAYMENT OF TAXES.
The Company will pay any documentary stamp taxes attributable to the
issuance of Common Stock issuable upon the exercise of Warrants by the initial
registered holder thereof; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
of a Warrant or in respect of any transfer involved in the issue or delivery of
any certificates for shares of Common Stock in a name other than that of the
registered holder of Warrants in respect of which such shares are issued, and in
such case neither the Company nor the Warrant Agent shall be required to issue
or deliver any certificate for shares of Common Stock or any Warrant until the
person requesting the same has paid to the Company or Warrant Agent the amount
of such tax or has established to the Company's and Warrant Agent's satisfaction
that such tax has been paid.
SECTION 7. MUTILATED OR MISSING WARRANTS.
In case any of the Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue and the Warrant Agent shall
countersign and deliver in exchange and substitution for and upon cancellation
of the mutilated Warrant, or in lieu of and in substitution for the Warrant
lost, stolen or destroyed, a new Warrant of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant and, in the case of a lost, stolen or destroyed Warrant, indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrants
shall also
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comply with such other reasonable regulations and pay such reasonable charges as
the Company or the Warrant Agent may prescribe.
SECTION 8. RESERVATION OF COMMON STOCK.
There has been reserved, and the Company shall at all times keep
reserved, out of the authorized and unissued shares of Common Stock, a number of
shares sufficient to provide for the exercise of the rights of purchase
represented by the Warrants, and the Transfer Agent for the shares of Common
Stock and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the rights of purchase
aforesaid are hereby irrevocably authorized and directed at all times to reserve
such number of authorized and unissued shares as shall be requisite for such
purpose. The Company agrees that all shares of Common Stock issued upon exercise
of the Warrants shall be, at the time of delivery of the certificates for such
shares of Common Stock, validly issued and outstanding, fully paid and
non-assessable and listed on any national securities exchange upon which the
other shares of Common Stock are then listed. So long as any unexpired Warrants
remain outstanding, the Company will file such post- effective amendments to the
Securities Act Registration Statement referred to in Section 5 of this Agreement
as may be necessary to permit it to deliver to each person exercising a Warrant,
a Prospectus meeting the requirements of Section 10(a)(3) of such Act and
otherwise complying therewith, and will deliver such a Prospectus to each
person. The Company will keep a copy of this Agreement on file with the Transfer
Agent for the shares of Common Stock and with every subsequent transfer agent
for any shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
stock certificates required to honor outstanding Warrants. The Company will
supply such Transfer Agent with duly executed stock certificates for such
purpose. All Warrants surrendered in the exercise of the rights thereby
evidenced shall be cancelled by the Warrant Agent and shall thereafter be
delivered to the Company, and such cancelled Warrants shall constitute
sufficient evidence of the number of shares of Common Stock which have been
issued upon the
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exercise of such Warrants. Promptly after the date of expiration of the
Warrants, the Warrant Agent shall certify to the Company as to the total
aggregate amount of Warrants then outstanding, and thereafter no shares of
Common Stock shall be subject to reservation in respect to such Warrants which
shall have expired.
SECTION 9. WARRANT PRICE.
The warrant price at which Common Stock shall be purchasable
pursuant to the Warrants, subject to adjustment as provided in Section 10 hereof
(the "Warrant Price"), shall be $2.33 per Share or such lower price as may from
time to time in the future be established by unanimous action of the Board of
Directors of the Company, until the Expiration Date.
Any such action by the Board of Directors shall not constitute a "Supplement or
Amendment" for purposes of Section 19.
SECTION 10. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of
the Warrants and the Warrant Price shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
10.1 ADJUSTMENTS.
The number of Shares purchasable upon the exercise of the Warrant
and the Warrant Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in Common Stock or
make a distribution in Common Stock, (ii) subdivide its outstanding Common
Stock, (iii) combine its outstanding Common Stock into a smaller number of
shares of Common Stock or (iv) issue by reclassification of its Common Stock
other securities of the Company, the number of Shares purchasable upon exercise
of the Warrant immediately prior thereto shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of Shares or
other securities of the Company which he would have owned or would have been
entitled to receive after the happening of any of the events described above,
had the Warrant been exercised immediately prior to the happening of
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any of the events or any record date with respect thereto. Any adjustment made
pursuant to this subsection 10.1 (a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to all or substantially all holders of its Common Stock,
without any charge to such holders, entitling them to subscribe for or purchase
Common Stock at a price per share which is lower at the record date mentioned
below than the Warrant Price, the number of Shares thereafter purchasable upon
the exercise of the Warrant shall be determined by multiplying the number of
Shares theretofore purchasable upon exercise of the Warrant by a fraction, of
which the numerator shall be the number of shares of Common Stock outstanding
immediately prior to the issuance of such rights, options or warrants plus the
number of additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of shares of Common
Stock outstanding immediately prior to the issuance of such rights, options,
warrants or convertible securities plus the number of shares which the aggregate
offering price of the total number of shares offered would purchase at the
Warrant Price. Such adjustment shall be made whenever such rights, options or
warrants are issued, and shall become effective immediately and retroactively
after the record date for the determination of shareholders entitled to receive
such rights, options or warrants.
(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock evidences of its indebtedness or assets (excluding
cash dividends or distributions out of earnings), then in each case the number
of Shares thereafter purchasable upon the exercise of the Warrant shall be
determined by multiplying the number of Shares theretofore purchasable upon
exercise of the Warrant by a fraction, of which the numerator shall be the
Warrant Price on the date of such distribution, and of which the denominator
shall be the Warrant Price on such date minus the then fair value of the portion
of the assets or evidences of indebtedness so distributed applicable to one
share. Such adjustment shall be made whenever any such distribution is made and
shall become effective on the date of distribution retroactive to the record
date for the determination of shareholders entitled to receive such
distribution.
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(d) No adjustment in the number of Shares purchasable hereunder
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the number of Shares purchasable upon the
exercise of the Warrant; provided however, that any adjustment which by reason
of this subsection 10.1(d) is not required to be made immediately shall be
carried forward and taken into account in any subsequent adjustment.
(e) Whenever the number of Shares purchasable upon the exercise of
the Warrant is adjusted as herein provided, the Warrant Price payable upon
exercise of the Warrant shall be adjusted by multiplying such Warrant Price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of Shares purchasable upon the exercise of the Warrant immediately
prior to such adjustment, and of which the denominator shall be the number of
Shares so purchasable immediately thereafter.
(f) To the extent not covered by paragraphs (b) or (c) hereof, in
case the Company shall sell and issue Common Stock or rights, options, warrants
or convertible securities containing the right to subscribe for or purchase
shares of Common Stock at a price per share (determined, in the case of such
rights, options, warrants or convertible securities, by dividing (i) the total
amount received or receivable by the Company in consideration of the sale and
issuance of such rights, options, warrants or convertible securities, plus the
total consideration payable to the Company upon exercise or conversion thereof,
by (ii) the total number of shares covered by such rights, options, warrants or
convertible securities) lower than the Warrant Price in effect immediately prior
to such sale and issuance, then the Warrant Price shall be reduced to a price
(calculated to the nearest cent) determined by multiplying the Warrant Price by
a fraction of which the numerator is (i) an amount equal to the sum of (A) the
number of shares of Common Stock outstanding immediately prior to such sale and
issuance multiplied by the then existing Warrant Price, plus (B) the
consideration received by the Company upon such sale and issuance, and the
denominator is the total number of shares of Common Stock outstanding
immediately after such sale and issuance multiplied by the Warrant Price. The
number of Shares purchasable upon the exercise of the Warrant shall be that
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number determined by multiplying the number of Shares issuable upon exercise
immediately prior to such adjustment by a fraction, of which the numerator is
the Warrant Price in effect immediately prior to such adjustment and the
denominator is the Warrant Price as so adjusted. For the purposes of such
adjustments, the Common Stock which the holders of any such rights, options,
warrants or convertible securities shall be entitled to subscribe for or
purchase shall be deemed to be issued and outstanding as of the date of such
sale and issuance and the consideration received by the Company therefor shall
be deemed to be the consideration received by the Company for such rights,
options, warrants or convertible securities, plus the consideration or premiums
stated in such rights, options, warrants or convertible securities to be paid
for the Common Stock covered thereby. In case the Company shall sell and issue
Common Stock or rights, options, warrants or convertible securities containing
the right to subscribe for or purchase Common Stock for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the "price per share" of Common Stock and the "consideration
received by the Company" for purposes of the first sentence of this paragraph
(f), the Board of Directors shall determine the fair value of said property, and
such determination, if reasonable and based upon the Board of Directors' good
faith business judgment, shall be binding upon the Warrantholder and all other
persons. There shall be no adjustment of the Warrant Price pursuant to this
paragraph (f) if the amount of such adjustment would be less than two cents per
Share; provided, however, that any adjustment which by reason of this provision
is not required to be made immediately shall be carried forward and taken into
account in any subsequent adjustment.
(g) Whenever the number of Shares purchasable upon the exercise of
the Warrant or the Warrant Price is adjusted as herein provided, the Company
shall cause to be promptly mailed to the Warrantholders by first class mail,
postage prepaid, notice of such adjustment or adjustments and a certificate of a
firm of independent public accountants selected by the Board of Directors of the
Company (who may be the regular accountants employed by the Company) setting
forth the number of Shares purchasable upon the exercise of the Warrant and the
Warrant Price after such adjustment, a brief
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statement of the facts requiring such adjustment and the computation by which
such adjustment was made.
(h) For the purpose of this subsection 10.1, the term "Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the Company
at the date of this Agreement or (ii)_any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. If at any time, as a result of an adjustment made pursuant to this
Section 10, the Warrantholders shall become entitled to purchase any shares of
the Company other than Common Stock, then the number of such other shares so
purchasable upon exercise of the Warrant and the Warrant Price of such shares
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Shares
contained in this Section 10.
(i) Upon the expiration of any rights, options, warrants or
conversion privileges, if such shall not have been exercised, the number of
Shares purchasable upon exercise of the Warrant and the Warrant Price, to the
extent the Warrant has not then been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had they been
originally adjusted (or had the original adjustment not been required, as the
case may be) on the basis of (A) the fact that the only shares of Common Stock
so issued were the shares of Common Stock, if any, actually issued or sold upon
the exercise of such rights, options, warrants or conversion rights and (B) such
shares of Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the consideration, if
any, actually received by the Company for the issuance, sale or grant of all
such rights, options, warrants or conversion rights whether or not exercised;
provided, however, that no such readjustment shall have the effect of increasing
the Warrant Price by an amount in excess of the amount of the adjustment
initially made in respect of the issuance, sale or grant of such rights,
options, warrants or conversion rights.
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10.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in subsection
10.1, no adjustment in respect of any dividends shall be made during the term of
the Warrant or upon the exercise of the Warrant.
10.3 NO ADJUSTMENT IN CERTAIN CASES. No adjustment shall be made in
connection with or resulting from (i) the issuance of the Warrants, (ii)_the
issuance of Shares upon exercise of the Warrants, (iii)_the issuance of Shares
on exercise of warrants and options of the Company outstanding on October 31,
1994, or (iv) the sale, at one time or from time to time after October 31, 1994,
of either
(x) up to 2,750,000 shares of Common Stock or
(y) rights, options, warrants or convertible securities
containing the right to purchase up to such number of shares
of Common Stock,
or
(z) a combination of (x) and (y)
at a price per share (determined as set forth in the first parenthetical clause
of Section 10.1(f)) of less than $2.33 per Share. The number of shares of Common
Stock issuable under (x), (y) and (z) in the aggregate shall not exceed
2,750,000.
10.4 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Warrantholder
an agreement that the Warrantholder shall have the right thereafter upon payment
of the Warrant Price in effect immediately prior to such action to purchase upon
exercise of the Warrant the kind and amount of shares and other securities and
property which he would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had the Warrant been
exercised immediately prior to such action. In the event of a merger described
in Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended, in
which the Company is the surviving corporation, the right to purchase Shares
under the Warrant shall terminate on the date of such merger and thereupon the
Warrant shall become null and
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void but only if the controlling corporation shall agree to substitute for the
Warrant its warrant which entitles the holder thereof to purchase upon its
exercise the kind and amount of shares and other securities and property which
he would have owned or have been entitled to receive had the Warrant been
exercised immediately prior to such merger. The agreements referred to in this
subsection 10.4 shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section_10. The provisions of this subsection 10.4 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
10.5 STATEMENT ON WARRANTS. Irrespective of any adjustments in the
Warrant Price or the number or kind of shares purchasable upon the exercise of
the Warrant, the Warrant certificate or certificates theretofore or thereafter
issued may continue to express the same price and number and kind of shares as
are stated in the Warrant initially issuable pursuant to this Agreement.
SECTION 11. FRACTIONAL INTEREST.
The Company shall not be required to issue fractional Shares or
Warrants on the exercise of the Warrant. If any fraction of a Share or Warrant
would, except for the provisions of this Section_11, be issuable on the exercise
of the Warrant (or specified portion thereof), the Company shall pay an amount
in cash equal to the then Current Market Price multiplied by such fraction. For
purposes of this Agreement, the term "Current Market Price" shall mean (i) if
the Common Stock or Warrants are traded in the over-the-counter market and not
in the Nasdaq National Market System and not on any national securities
exchange, the average mean between the per share closing bid and asked prices of
the Common Stock or Warrants, as the case may be, on the 30 consecutive trading
days immediately preceding the date in question as reported by Nasdaq or an
equivalent generally accepted reporting service, or (ii)_if the Common Stock or
Warrants are traded in the Nasdaq National Market System or on a national
securities exchange, the average for the 30 consecutive trading days immediately
preceding the date in question of the daily per share closing prices of the
Common Stock or Warrants, as the case may be, in the Nasdaq National Market
System or on the
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principal stock exchange on which they are listed, as the case may be. The
closing price referred to in clause (ii) above shall be the last reported sales
price or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices, in either case in the Nasdaq National
Market System or on the national securities exchange on which the Common Stock
or Warrants, as the case may be, are then listed.
SECTION 12. NOTICES TO WARRANTHOLDERS.
(A) Upon any adjustment of the Warrant Price or the number of Shares
issuable on exercise of a Warrant, then and in each such case the Company shall
give written notice thereof to the registered holders of the Warrants and to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of Shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of the subject adjustment.
(B) In case at any time:
(a) the Company shall pay any dividends payable in stock upon
its Common Stock or make any distribution (other than regular cash dividends) to
the holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or other
rights;
(c) there shall be any capital reorganization or
reclassification (other than a reclassification involving merely the subdivision
or combination of outstanding Common Stock) or merger or consolidation of the
Company with, or sale of all or substantially all of its assets to, another
corporation; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company then, in any one or more of such cases,
the Company shall give written notice in the manner set forth above in this
Section 12 of the date on which (i) the books of the Company shall close or a
record shall be taken for such dividend, distribution or subscription rights, or
(ii) such reorganization, reclassification,
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consolidation, merger, sale, dissolution, liquidation or winding up shall take
place, as the case may be. Such notice shall also specify the date as of which
the holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Such notice shall be given at
least twenty (20) days prior to the action in question and not less than twenty
(20) days prior to the record date or the date on which the Company's transfer
books are closed in respect thereof. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of any of the matters set
forth in this Section 12.
(C) The Company shall send copies of all reports, proxy statements
and other documents that it sends to its shareholders, on the date of mailing to
such shareholders, to each registered holder of Warrants at his address
appearing on the Warrant register as of the record date for the determination of
the shareholders entitled to such documents.
SECTION 13. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS.
(A) The Warrant Agent shall promptly forward to the Company all
monies received by the Warrant Agent for the purchase of shares of Common Stock
through the exercise of the Warrants.
(B) The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours.
SECTION 14. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
Any corporation or company which may succeed to the business of the
Warrant Agent by any merger or consolidation or otherwise to which the Warrant
Agent shall be a party, or any corporation or company succeeding to the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of either party hereto, provided that such corporation
would be eligible for appointment as a successor Warrant Agent under the
provisions of Section 16 of this Agreement. In case at the time such
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successor to the Warrant Agent shall succeed to the agency created by this
Agreement, any of the Warrants shall have been countersigned but not delivered,
any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrants so countersigned; and in the
case at that time any of the Warrants shall not have been countersigned, any
successor to the Warrant Agent shall countersign such Warrants in its own name;
and in all such cases such Warrants shall have the full force provided in the
Warrants and in this Agreement. In case at any time the name of the Warrant
Agent shall be changed and at such time any of the Warrants shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrants so countersigned; and
in case at that time any of the Warrants shall have been countersigned, the
Warrant Agent may countersign such Warrants either in its prior name or in its
changed name; and in all such cases such Warrants shall have the full force
provided in the Warrants and in this Agreement.
SECTION 15. DUTIES OF WARRANT AGENT
The Warrant Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Company and the holders of Warrants, by their acceptance thereof, shall be
bound:
A. The statements of fact and recitals contained herein and in the
Warrants shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrants
except as herein expressly provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action
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taken, suffered or omitted by it hereunder in good faith and in accordance with
the opinion or the advice of such counsel.
D. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
E. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent's negligence, misconduct or bad faith.
F. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expenses unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent reasonable security and indemnity for any costs and
expenses which may be incurred, but this provision shall not affect the power of
the Warrant Agent to take such action as the Warrant Agent may consider proper,
whether with or without any such security or indemnity. All rights of action
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the registered holders of the outstanding Warrants, as their respective rights
or interests may appear.
G. The Warrant Agent and any shareholder, director, officer, partner
or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other
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securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not the Warrant Agent under
this Agreement. Nothing herein shall preclude the Warrant Agent from acting in
any other capacity for the Company or for any other legal entity.
H. The Warrant Agent shall act hereunder solely as agent and not in
a fiduciary capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own negligence, misconduct or bad faith.
I. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its agents, and the Warrant Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such agent or for any loss to
the Company resulting from such act, default, neglect or misconduct, provided
reasonable care had been exercised in the selection and continued use of the
agent.
J. Any request, direction, election, order or demand of the Company
shall be sufficiently evidenced by an instrument signed in the name of the
Company by its President or any Vice President or its Secretary or any Assistant
Secretary or its Treasurer or any Assistant Treasurer (unless other evidence in
respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Warrant Agent by a copy thereof
certified by the Secretary or any Assistant Secretary of the Company.
SECTION 16. CHANGE OF WARRANT AGENT.
The Warrant Agent may resign and be discharged from its duties under
this Agreement by giving to the Company not less than 20 days prior notice in
writing, and by mailing such notice to the holders of Warrants at their
addresses appearing on the Warrant register, specifying a date when such
resignation shall take effect. The Warrant Agent may be removed by like notice
to the Warrant Agent from the Company and by like mailing of notice to the
holders of Warrants. If the Warrant Agent shall resign or be
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removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity of the resigning or
incapacitated Warrant Agent, then the registered holder of any Warrant may apply
to any court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor warrant agent, whether appointed by the Company or
by such a court, shall be a bank or trust company or stock transfer agency, in
good standing, incorporated under the laws of any state in the United States of
America or the United States of America. Pending appointment of a successor to
the Warrant Agent, either by the Company or by a court, the duties of the
Warrant Agent shall be carried out by the Company. After appointment, the
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor warrant agent cancelled Warrants, records and property at the time
held by it hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Failure to file or mail any notice
provided for in this Section, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the Warrant Agent or
the appointment of the successor warrant agent, as the case may be.
SECTION 17. IDENTITY OF TRANSFER AGENT.
Forthwith upon the appointment of any Transfer Agent for the shares
of Common Stock or of any subsequent transfer agent for shares of Common Stock
or other shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrants, the Company will file with the
Warrant Agent a statement setting forth the name and address of such Transfer
Agent.
SECTION 18. NOTICES.
Any notice pursuant to this Agreement to be given by the Warrant
Agent or by the registered holder of any Warrant to the Company shall be
sufficiently given if sent by
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first-class mail, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent) as follows:
Wilshire Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: President
Any notice pursuant to this Agreement to be given by the Company or
by the registered holder of any Warrant to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the
Company) as follows:
American Stock Transfer & Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SECTION 19. SUPPLEMENTS AND AMENDMENTS.
Without the consent of Warrantholders, the Company and the Warrant
Agent may from time to time supplement or amend this Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interest of the holders of Warrants. With the consent of
Warrantholders entitled to purchase at least a majority of the Shares issuable
on exercise of all then outstanding Warrants, the Company and the Warrant Agent
may from time to time supplement or amend this Agreement in all respects except
to change the Warrant Price or the number of Shares issuable on exercise of
Warrants or to reduce the percentage of the outstanding Warrants required by
this Section 19 for any such supplement or amendment.
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SECTION 20. SUCCESSORS.
The covenants and provisions of this Agreement by or for the benefit
of the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 21. CALIFORNIA CONTRACT.
This Agreement shall be deemed to be a contract made under the laws
of the State of California and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 22. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company, the Warrant Agent and the registered
holders of the Warrants any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the registered holders of the Warrants.
SECTION 23. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
WILSHIRE TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
------------------------------------
President & Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By______________________________________
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WILSHIRE TECHNOLOGIES, INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF CALIFORNIA
WARRANT TO PURCHASE SHARES OF COMMON STOCK.
VOID AFTER 5:00 P.M. NEW YORK TIME ON NOVEMBER 28, 2002
This certifies that, for value received, the registered holder
hereof or registered assigns (the "Holder"), is entitled to purchase from
Wilshire Technologies, Inc. (the "Company"), a California corporation, at any
time after the later of November 28, 1999 or the date on which the shares
issuable on exercise of this Warrant shall have been registered under the
Federal Securities Act of 1933, and before 5:00 P.M. New York time on November
28, 2002, at the purchase price of $2.33 per share (the "Warrant Price"), a
number of shares of Common Stock without par value of the Company which is equal
to the number of shares of Common Stock set forth above. The number of shares
purchasable upon exercise of this Warrant and the Warrant Price per share shall
be subject to adjustment from time to time as set forth in the Warrant Agreement
referred to below.
This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the reverse side hereof duly executed,
with a signature guarantee, and simultaneous payment of the Warrant Price
(subject to adjustment) at the principal office in New York City, New York, of
American Stock Transfer & Trust Company (the "Warrant Agent"). Payment of such
price shall be made at the option of the Holder hereof in cash or by check or
bank draft, all as provided in the Warrant Agreement.
This Warrant is one of a duly authorized issue of Common Stock
Purchase Warrants with rights to purchase an aggregate of 2,750,000 shares of
Common Stock, without par value, of the Company and is issued under and in
accordance with a Warrant Agreement dated as of November 24, 1997 between the
Company and the Warrant Agent
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and is subject to the terms and provisions contained in such Warrant Agreement,
to all of which the Holder of this Warrant by acceptance hereof consents. A copy
of the Warrant Agreement may be obtained for inspection by the Holder hereof
upon written request to the Warrant Agent.
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in respect of the
shares as to which this Warrant shall not have been exercised. This Warrant may
be exchanged at the office of the Warrant Agent by surrender of this Warrant
properly endorsed, with a signature guarantee, either separately or in
combination with one or more other Warrants, for one or more new Warrants to
purchase the same aggregate number of shares evidenced by the Warrant or
Warrants exchanged. No fractional shares will be issued upon the exercise of
rights to purchase hereunder, but the Company shall pay the cash value of any
fraction upon the exercise of one or more Warrants, as provided in the Warrant
Agreement. This Warrant is transferable at the office of the Warrant Agent in
the manner and subject to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent
and all other persons dealing with this Warrant as the absolute owner hereof for
all purposes and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books, the Company may
treat the Holder hereof as the owner for all purposes.
This Warrant does not entitle any holder hereof to any of the rights
of a shareholder of the Company.
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This Warrant shall not be valid or obligatory for any purpose until
it shall have been countersigned by the Warrant Agent.
Dated:
WILSHIRE TECHNOLOGIES, INC.
By: ____________________________________
President
Attest: ________________________________
Secretary
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY
Warrant Agent
By:___________________________
Authorized Officer
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WILSHIRE TECHNOLOGIES, INC.
Mailing Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
shares of the _____________ stock provided for therein, and requests that
certificates for such shares be issued in the name of:
________________________________________________________________________________
(Please print name, address and Social Security number)
________________________________________________________________________________
________________________________________________________________________________
and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant Certificate for the balance of the shares
purchasable under the within Warrant Certificate be registered in the name of
the undersigned Warrantholder or his Assignee as below indicated and delivered
to the address stated below.
DATED:__________________
Name of Warrantholder
or Assignee: ___________________________________________________________________
Address: _______________________________________________________________________
Signature: _____________________________________________________________________
Signature Guaranteed:
Note: The above signature must correspond with the
name as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever,
unless this Warrant has been assigned.
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ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(Name and address of assignee must be printed or typewritten)
the within Warrant, hereby irrevocably constituting and
appointing___________________
Attorney to transfer said Warrant on the books of the Company, with full power
of substitution in the premises.
DATED:
Signature Guaranteed:
_______________________________________
Signature of registered holder
Notice: The signature on this Assignment must
correspond with the name as it appears upon the
face of the within Warrant Certificate in every
particular, without alteration or enlargement or
any change whatever.
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