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EXHIBIT 10.5
Right to Purchase 1,000,000 Shares of
Series A Common Stock
of ▇▇▇▇▇ Instruments Corp.
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 may
not be sold or transferred in the absence of such registration or an exemption
therefrom under such Act or any applicable state securities laws. Furthermore,
this Warrant and any shares acquired upon the exercise of this Warrant may be
sold or otherwise transferred only in compliance with the conditions specified
in Section 13 of the Securities Purchase Agreement referred to hereinafter,
complete and correct copies of which are available for inspection at the
principal office of ▇▇▇▇▇ Instruments Corp. and will be furnished without charge
to the holder of this Warrant upon written request.
This Warrant is also subject to certain put rights of the holder hereof
and certain call rights of the issuer set forth in said Securities Purchase
Agreement. This Warrant is issued pursuant to the Securities Purchase Agreement
and if any provision of this Warrant is found to conflict with the Securities
Purchase Agreement, the provisions of the Securities Purchase Agreement shall
prevail.
No. W-1
▇▇▇▇▇ Instruments Corp.
Series A Common Stock Purchase Warrant
▇▇▇▇▇ Instruments Corp., a California corporation (together with any
corporation which shall succeed to or assume the obligations of ▇▇▇▇▇
Instruments Corp. hereunder, the "Company"), hereby certifies that, for value
received, ▇▇▇▇▇▇▇▇▇ ESOP Capital Partners, A Minnesota Limited Partnership
("CECP"), or its assigns, is entitled, subject to the terms set forth below, to
purchase from the Company promptly after the "Closing" on the "Closing Date"
(each quoted term being used as defined in the Securities Purchase Agreement),
up to 1,000,000 fully paid and non-assessable shares of Common Stock (as defined
in Section 6.1 hereof), at an initial purchase price per share of $0.01 (such
price is referred to herein as the "Exercise Price").
This Warrant is issued pursuant to the Securities Purchase Agreement
(as amended and in effect from time to time, the "Securities Purchase
Agreement"), dated as of April 23, 1996, between the Company and the Purchaser,
a copy of which is on file at the principal office of the
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Company. The holder of this Warrant shall be entitled to all of the benefits and
shall be subject to all of the obligations of the Securities Purchase Agreement.
1. DEFINITIONS. Terms defined in the Securities Purchase Agreement and not
otherwise defined herein are used herein with the meanings so defined. Certain
terms are used in this Warrant as specifically defined in Section 6 hereof.
2. EXERCISE OF WARRANT.
2.1. Exercise. This Warrant may be exercised in full in connection with
the consummation of the Transactions on the Closing Date, 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 or by wire
transfer to its account, in the amount obtained by multiplying the number of
shares of Common Stock for which this Warrant is then being exercised by the
Exercise Price then in effect.
2.2. Class of Stock Receivable Upon Exercise. Intentionally omitted.
2.3. Conflict With Other Laws. Intentionally Omitted.
2.4. Warrant Agent. (Intentionally Omitted).
2.5. Termination. This Warrant shall terminate upon exercise in full.
3. PUT AND CALL OPTIONS; REGISTRATION RIGHTS. The holder of this Warrant has the
option to require the Company to, and the Company has the option to, purchase
this Warrant and/or shares of Warrant Stock at the times and in the manner
specified in Section 9 of the Securities Purchase Agreement. The holder of this
Warrant has the right to cause the Company to register shares of Warrant Stock,
and any shares issued upon exercise hereof, under the Securities Act and any
blue sky or securities laws of any jurisdictions within the United States at the
time and in the manner specified in the Registration Rights Agreement.
4. DELIVERY OF STOCK CERTIFICATES ON EXERCISE.
4.1. Delivery. As soon as practicable after the exercise of this
Warrant in full or in part, and in any event within ten (10) business 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.
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4.2. Fractional Shares. In the event that the exercise of this Warrant,
in full or in part, would result in the issuance of any fractional share of
Common Stock, then in such event the number of shares to be issued upon exercise
shall be rounded to the closet whole number (with one-half (1/2) rounded
upward).
5. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS AND RECLASSIFICATIONS. (Intentionally
Omitted).
6. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. (Intentionally
Omitted).
7. ADJUSTMENTS OF ISSUANCE OF COMMON STOCK AND AMOUNT OF OUTSTANDING COMMON
STOCK. (Intentionally Omitted).
5. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANT. The Company will at all
times reserve and keep available, solely for issuance and delivery on the
exercise of this Warrant, a number of shares of Series A Common Stock equal to
the total number of shares of Series A Common Stock from time to time issuable
upon exercise of this Warrant, and, from time to time, will take all steps
necessary to amend its Charter to provide sufficient reserves of shares of
Common Stock issuable upon exercise of this Warrant.
6. DEFINITIONS. As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
6.1. The term Common Stock means: (i) the Company's Series A Common
Stock, no par value (the "Series A Common Stock"); and (ii) any other securities
into which or for which any of the securities described in clause (i) above have
been converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
6.2. The term Other Securities refers to any stock (other than Common
Stock) and other securities of the Company or any other entity (corporate or
otherwise) 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.
7. 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.
8. 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, or sent by overnight courier (or sent in the form of a telex
or telecopy) at such address as may have been
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furnished to the Company in writing pursuant to the Securities Purchase
Agreement.
9. 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 internal laws (and not the
conflict of law rules) of the State of California. The headings in this Warrant
are for purposes of reference only, and shall not limit or otherwise affect any
of the terms hereof.
10. GOVERNING LAW. The validity, performance, construction and effect of this
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Minnesota, without giving effect to any choice or conflict
of law provision or rule that would cause the application of the domestic
substantive laws of any other state.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer.
Dated as of April 23, 1996
▇▇▇▇▇ Instruments Corp.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President
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FORM OF SUBSCRIPTION
(To be signed only on exercise
of Common Stock Purchase Warrant)
TO: ▇▇▇▇▇ Instruments Corp.
The undersigned, the Holder of the within Common Stock Purchase
Warrant, hereby irrevocably elects to exercise this Common Stock Purchase
Warrant for, and to purchase thereunder 1,000,000 shares of Series A Common
Stock of ▇▇▇▇▇ Instruments Corp. and herewith makes payment of $10,000 therefor,
and requests that the certificates for such shares be issued in the name of, and
delivered to ▇▇▇▇▇▇▇▇▇ ESOP Capital Partners, A Minnesota Limited Partnership,
whose address is 2400 Metropolitan Centre, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Dated: April 23, 1996 ▇▇▇▇▇▇▇▇▇ ESOP Capital Partners, A Minnesota
Limited Partnership
By: ▇▇▇▇▇▇▇▇▇ Capital Investment Partners,
A Minnesota Limited Partnership
Its: General Partner
By: ▇▇▇▇▇▇▇▇▇ Capital, Inc.
Its: General Partner
By:____________________________________
Title:_________________________________
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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