Exhibit 4.5
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN AND WILL NOT BE, AS OF THE TIME OF ISSUANCE, REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY COMPARABLE STATE LAW, AND MAY NOT BE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SUCH ACT. THIS WARRANT AND SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THIS WARRANT.
PACIFIC AEROSPACE & ELECTRONICS, INC.
COMMON STOCK PURCHASE WARRANT
Expiring February 1, 2005
No. 002 November 30, 1996
Pacific Aerospace & Electronics, Inc., a Washington corporation (the
"Company"), for value received, hereby certifies that ▇▇▇▇ ▇. ▇▇▇▇▇, or his
registered assigns, is entitled to purchase from the Company at any time from
time to time prior to 5:00 p.m., Pacific Standard time, on February 1, 2005,
25,000 duly authorized shares of the Company's common stock, $.001 par value per
share (the "Warrant Stock"), at a purchase price per share of $2.00, all subject
to the terms and conditions set forth below.
The Company's predecessor, PCT Holdings, Inc. ("PCTH") issued a Common
Stock Purchase Warrant to ▇▇▇▇ ▇. ▇▇▇▇▇ on February 17, 1995, which entitled the
holder to purchase 25,000 shares of PCTH's common stock for $2.00 per share (the
"PCTH Warrant"). As a result of the reincorporation merger of the Company and
PCTH on November 30, 1996, the right of the holder of the PCTH Warrant to
purchase shares of PCTH's common stock was converted automatically into the
right to purchase the same number of shares of the Company's common stock. This
Common Stock Purchase Warrant (the "Warrant") is otherwise in all respects the
same as the PCTH Warrant and is issued to replace the PCTH Warrant. This Warrant
supersedes and replaces the PCTH Warrant in its entirety, and the PCTH Warrant
shall from the date hereof be null and void.
1. Exercise of Warrant.
1.1 Manner of Exercise. The holder of this Warrant may exercise it,
in whole or in part, during normal business hours on any business day by
surrendering this Warrant to the Company at the Company's principal office,
accompanied by an executed subscription agreement in substantially the form
annexed hereto as Exhibit A and by payment, in cash or certified or official
bank check payable to the order of the Company, or by any combination of such
methods, in the amount obtained by multiplying (a) the number of shares of
Warrant Stock
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designated in such subscription by (b) $2.00, whereupon such holder shall be
entitled to receive the number of duly authorized, validly issued, fully paid
and nonassessable shares of Warrant Sock as is indicated on the subscription.
1.2 When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
business day on which this Warrant shall have been surrendered to the Company as
provided in Section 1.1, and at such time the person or person in whose name or
names any certificate or certificates for shares of Warrant Stock shall be
issued upon such exercise shall be deemed for all corporate purposes to have
become the holder of record thereof.
1.3 Delivery of Stock Certificates. As soon as practicable after
each exercise of this Warrant, and in any event within five 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 to the person or entity such holder may direct (and upon
payment by such holder of any applicable transfer taxes), a certificate or
certificates for the number of duly authorized, validly issued, fully paid and
nonassessable shares of Warrant Stock to which the holder or its designee shall
be entitled upon such exercise.
1.4 Partial Exercise.
1.4.1 Fractional Shares. In the event of any partial exercise of
this Warrant, the Company will not issue certificates for any fractional shares
of the Warrant Stock to which the holder otherwise may be entitled, and the
Company shall not be obligated to refund an amount of cash comprising the market
value of any fractional share of Warrant Stock for which the Company will not
issue a certificate.
1.4.2 Replacement Warrant. In the event of any partial exercise
of this Warrant, upon tender of this Warrant to the Company, the Company shall
issue a new Warrant containing the same terms and conditions as this warrant but
calling on the face thereof for the number of shares of Warrant Stock equal to
the number of shares called for on the face of this Warrant minus the number of
shares of Warrant Stock issued upon the partial exercise of this Warrant.
2. Adjustment of Warrant Stock Issuable Upon Exercise. If the Company at
any time or from time to time after the date of this Warrant but before
expiration effects a split or subdivision of the outstanding shares of its then
outstanding common stock into a greater number of shares of common stock, or if
the Company effects a reverse split of the outstanding shares of its common
stock into a lesser number of shares of common stock, (by reclassification or
otherwise than by payment of a dividend in common stock), then, and in each such
case, the number of shares called for on the face of this Warrant (or the face
of any replacement Warrant issued upon partial exercise) shall be adjusted
proportionally, and the exercise price with respect to such adjusted number of
shares also shall be adjusted proportionally.
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3. Restrictions on Transfer.
3.1 Restrictive Legends. Each replacement Warrant issued upon
partial exercise or the transfer of any Warrant shall contain a legend in
substantially the following form:
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
THIS WARRANT AND SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THIS WARRANT.
Each certificate for Common Stock issued upon the exercise of any warrant, and
each certificate issued upon the transfer of any such Common Stock, shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, OR
TRANSFERRED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933 AND
APPROPRIATE STATE SECURITIES LAWS. FURTHERMORE, NO OFFER, SALE, OR
TRANSFER, IS TO TAKE PLACE UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL, AT SHAREHOLDER'S EXPENSE, AND SATISFACTORY TO IT, THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
3.2 Notice of Proposed Transfer. Prior to the transfer of any shares
of Common Stock issued upon the exercise of this Warrant and during any period
during which such shares of Common Stock are not registered by the Company under
an effective registration statement filed pursuant to the Securities Act of
1933, as amended (the "Securities Act"), the holder thereof shall give written
notice to the Company, which notice shall (a) state such holder's intention to
transfer such restricted shares and to comply in all other respects with the
transfer requirements of this Warrant; (b) describe the circumstances of the
proposed transfer in sufficient detail to enable counsel to render the opinions
referred to below, and (c) designate counsel for the Holder giving such notice.
The holder giving such notice shall submit a copy thereof to the counsel
designated in such notice and the Company will promptly submit a copy thereof to
its counsel. The following provisions shall then apply:
3.2.1 If (a) in the opinion of counsel for the holder designated
in the notice the proposed transfer may be effected without registration of such
shares of Common
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Stock under the Securities Act and any applicable state securities laws, and (b)
counsel for the Company shall not have rendered an opinion within 15 days after
receipt by the Company of such written notice that such registration is
required, such holder shall thereupon be entitled to transfer such shares of
Common Stock in accordance with the terms of the notice delivered by such holder
to the Company. Each Warrant or certificate, if any, issued upon or in
connection with such transfer shall bear the appropriate restrictive legend set
forth in Section 3.1, unless in the opinion of each such counsel such legend is
no longer required to insure compliance with the Securities Act . If for any
reason counsel for the Company (after having been furnished with the information
required to be furnished by clause (a) of this Section 3.2) shall fail to
deliver an opinion to the Company as aforesaid, then for all purposes of this
Warrant the opinion of counsel for the Company shall be deemed to be the same as
the opinion of counsel for such holder.
3.2.2 If in the opinion of either or both of such counsel the
proposed transfer may not legally be effected without registration of such
shares of Common Stock under the Securities Act or applicable state securities
laws (such opinion or opinions to state the basis of the legal conclusions
reached therein), the Company will promptly so notify the holder thereof and
thereafter such holder shall not be entitled to transfer such shares of Common
Stock until receipt of a further notice from the holder under Section 3.2.1
above or until registration of such shares of Common Stock under the Securities
Act or applicable state law has become effective.
4. Reservation of Shares. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of the Warrants,
the number of shares of Warrant Stock that would be issuable upon the exercise
of all Warrants at the time outstanding. All such shares shall be duly
authorized and, when issued upon such exercise, shall be validly issued, fully
paid and nonassessable with no liability on the part of the holders thereof.
5. Ownership, Transfer and Substitution of Warrants.
5.1 Ownership of Warrants. The Company may treat the person in whose
name any Warrant is registered on the Company's records as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary.
Nevertheless, when a Warrant is properly assigned in blank, the holder thereof
may exercise the Warrant without first having a new Warrant issued.
5.2 Transfer and Exchange of Warrants. Upon the surrender of any
Warrant, properly endorsed, for registration of transfer of exchange at the
principal office of the Company, the Company will execute and (upon payment by
such holder of any applicable transfer taxes) deliver to any person specified by
the holder of the Warrant a new Warrant or Warrants of like tenor, calling in
the aggregate on the face or faces of such replacement Warrants for the number
of shares of Warrant Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
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5.3 Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
upon delivery of indemnity reasonably satisfactory to the Company in form and
amount or, in the case of any such mutilation, upon surrender of such the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
6. No Rights or Liabilities as Stockholder. Nothing herein shall give or
shall be construed to give the holder of this Warrant any of the rights of a
shareholder of the Company including, without limitation, the right to vote on
matters requiring the vote of shareholders, the right to receive any dividend
declared and payable to the holders of common stock, and the right to a pro-rata
distribution upon the Company's dissolution.
7. Notices. All notices and other communications provided for herein
shall be delivered or mailed by first class mail, postage prepaid, addressed (a)
if to the holders of any Warrant, at the registered address of such holder as
set forth in the register kept at the principal office of the Company, or (b) if
to the Company, at its principal office, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at the address of such other principal office of the
Company as the Company shall have furnished to each holder of any Warrants in
writing, provided that the exercise of any Warrants shall be effective only in
the manner provided in Section 1.
8. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be governed by the laws of the State of
Washington. The headings of this warrant are inserted for convenience only and
shall not be deemed to constitute a part hereof.
9. Expiration. The right to exercise this Warrant shall expire at 5:00
p.m., Pacific Standard time, on February 1, 2005.
PACIFIC AEROSPACE & ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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Exhibit A
SUBSCRIPTION
(To be executed by the holder of the Warrant to exercise the right to
purchase common stock evidenced by the warrant)
To: Pacific Aerospace & Electronics, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably subscribes for shares of the Common
Stock, $.001 par value per share, of Pacific Aerospace & Electronics, Inc., a
Washington corporation, pursuant to and in accordance with the terms and
conditions of a Warrant dated as of November 30, 1996 (the "Warrant"), and
tenders with the Warrant and this Subscription Agreement payment of $__________
as payment for the shares, and requests that a certificate for such shares be
issued in the name of the undersigned and be delivered to the undersigned at the
address stated below.
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NAME
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ADDRESS
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SOCIAL SECURITY NUMBER
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Signed
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Dated
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