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EXHIBIT 4(d)
_________________________
RIVIERA TOOL COMPANY
AND
▇▇▇▇ ▇. ▇▇▇▇▇
WARRANT AGREEMENT
DATED AS OF MARCH 4, 1997
_________________________
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WARRANT AGREEMENT dated as of March 4, 1997, between RIVIERA TOOL COMPANY,
a Michigan corporation (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇ of Delray Beach,
Florida (hereinafter referred to as "▇▇▇▇▇").
W I T N E S S E T H :
WHEREAS, ▇▇▇▇▇ has performed certain consulting services for the Company,
in connection with the Company's public offering of 1,010,000 shares of common
stock.
WHEREAS, pursuant to a Consulting Agreement and Plan of Compensation, the
Company is to issue warrants to ▇▇▇▇▇ to purchase up to an aggregate of 30,000
shares of Common Stock (the "Warrants").
NOW, THEREFORE, in consideration of the premises, the performance of the
consulting services and the agreements herein set forth, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. ▇▇▇▇▇ is hereby granted the right to purchase, at any time from
March 4, 1997 until 5:30 p.m., Michigan time, on March 3, 2000, at which time
the Warrants expire, up to an aggregate 30,000 shares of Common Stock (subject
to adjustment as provided in Section 7 hereof), at an initial exercise price
(subject to adjustment as provided in Section 9 hereof) of $10.50 (for 15,000
shares and $14.00 for 15,000 shares) (the "Exercise Price").
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall
be in the form set forth in Exhibit A, attached hereto and made a part hereof,
with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. Registration of Warrant. The Warrants shall be numbered and shall be
registered on the books of the Company when issued.
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4. Exercise of Warrant. The Warrants initially are exercisable at the
Exercise Price (subject to adjustment as provided in Section 9 hereof) per
Warrant set forth in Section 7 hereof payable by certified or official bank
check in New York Clearing House funds. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price for the shares of Common Stock
purchased at the Company's principal offices in Michigan (presently located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 49512) ▇▇▇▇▇ shall be
entitled to receive a certificate or certificates for the shares of Common
Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder thereof, in whole or in
part (but not as to fractional shares of Common Stock underlying the Warrants).
In the case of the purchase of less than all of the shares of Common Stock
purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the shares of Common
Stock purchasable thereunder.
5. Issuance of Certificates. Upon the exercise of the Warrant, the
issuance of certificates for shares of Common Stock, properties or rights
underlying such Warrant shall be made forthwith (and in any event within five
(5) business days thereafter) without charge to ▇▇▇▇▇ including, without
limitation, any tax which may be payable in respect of the issuance thereof,
and such certificates shall be issued in the name of ▇▇▇▇▇; provided that ▇▇▇▇▇
shall be responsible for any tax based upon or measured by his income.
The Warrant Certificates and the certificates representing the shares of
Common Stock or other securities, property or rights issued upon exercise of
the Warrant shall be executed on behalf of the Company by the manual or
facsimile signature of the then present President or any
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Vice President of the Company under its corporate seal reproduced thereon,
attested to by the manual or facsimile signature of the then present Secretary
or any Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
6. Restriction on Transfer of Warrants. The Warrants shall not be
transferable and are personal to ▇▇▇▇▇ but may be exercised in the event of his
death by the duly appointed representative of his estate within ninety (90)
days after the date of his death. ▇▇▇▇▇, by his acceptance hereof, covenants
and agrees that the Warrant is being acquired as an investment and not with a
view to the distribution thereof, and that the Warrant may not be sold,
transferred, assigned, hypothecated or otherwise disposed of, in whole or in
part, for the term of the Warrant.
7. Exercise Price and Number of Securities. Except as otherwise provided
in Section 9 hereof, each Warrant is exercisable to purchase one share of
Common Stock at an initial exercise price equal to the Exercise Price. The
Exercise Price and the number of shares of Common Stock for which the Warrants
may be exercised shall be the price and the number of shares of Common Stock
which shall result from time to time from any and all adjustments in accordance
with the provisions of Section 9 hereof.
8. Registration. Each Warrant Certificate shall bear the following
legend:
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF
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SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY
THE CERTIFICATE IS PROHIBITED.
The Company shall use its best efforts to file a registration statement
upon execution hereof covering the shares issuable upon exercise of the
Warrants, and to have any registration statements declared effective at the
earliest possible time, and shall furnish ▇▇▇▇▇ such number of prospectuses as
shall reasonably be requested.
The Company shall pay all costs (excluding fees and expenses of ▇▇▇▇▇'▇
counsel and any underwriting or selling commissions), fees and expenses in
connection with such registration statement, including without limitation, the
Company's legal and accounting fees, printing expenses, blue sky fees and
expenses.
9. Adjustments to Exercise Price and Number of Securities. The Exercise
Price in effect at any time and the number and kind of securities purchased
upon the exercise of the Warrant shall be subject to adjustment from time to
time only upon the happening of the following events:
9.1 Stock Dividend, Subdivision and Combination. In case the Company
shall (i) declare a dividend or make a distribution on its outstanding shares
of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination or
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reclassification shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price by a fraction, the denominator of which shall
be the number of shares of Common Stock outstanding after giving effect to such
action, and the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such action. Such adjustment shall be
made successively whenever any event listed above shall occur.
9.2 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 9, the number of
Warrant Shares issuable upon the exercise at the adjusted Exercise Price of
each Warrant shall be adjusted to the nearest number of whole shares of Common
Stock by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of the Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
9.3 Definition of Common Stock. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Articles of Incorporation of the Company as amended as of the date
hereof, 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.
9.4 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to ▇▇▇▇▇ a supplemental warrant agreement
providing that the Warrant then outstanding or to be outstanding
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shall have the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of such Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger
by a holder of the number of shares of Common Stock for which such Warrant
might have been exercised immediately prior to such consolidation, merger, sale
or transfer. Such supplemental warrant agreement shall provide for adjustments
which shall be identical to the adjustments provided in Section 10. The above
provision of this subsection shall similarly apply to successive consolidations
or mergers.
9.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of
the Exercise Price shall be made:
(a) Upon the issuance or sale of Common Stock (or any other security
convertible, exercisable, or exchangeable into shares of Common Stock) or upon
the direct or indirect conversion, exercise, or exchange of any options,
rights, warrants, or other securities or indebtedness of the Company or granted
pursuant to any stock option plan of the Company, pursuant to the terms
thereof; or
(b) If the amount of said adjustment shall be less than two cents
($.02) per share, provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be
made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least two
cents ($.02) per Warrant.
9.6 Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable, without expense, upon the surrender thereof at the
principal executive office of the Company for a new Warrant Certificate of like
tenor and date
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representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by ▇▇▇▇▇ thereof at the
time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrant, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up
to the nearest whole number of shares of Common Stock or other securities,
properties or rights.
11. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. Every transfer agent ("Transfer Agent")
for the Common Stock and other securities of the Company issuable upon the
exercise of the Warrants will be irrevocably authorized and directed at all
times to reserve such number of authorized shares of Common Stock and other
securities as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with every Transfer Agent for the Common Stock
and other securities of the Company issuable upon the exercise of the
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Warrants. The Company will supply every such Transfer Agent with duly executed
stock and other certificates, as appropriate, for such purpose. The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all shares of Common Stock issuable upon the exercise of the
Warrants to be listed (subject to official notice of issuance) on all
securities exchanges on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted on Nasdaq SmallCap Market.
12. Notices to ▇▇▇▇▇. Nothing contained in this Agreement shall be
construed as conferring upon ▇▇▇▇▇ the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable
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for shares of capital stock of the Company, or any option, right or warrant to
subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not affect the
validity of any action taken in connection with the declaration or payment of
any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
(a) if to ▇▇▇▇▇ at ▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; or
(b) if to the Company, to the address set forth in Section 4 hereof
or to such other address as the Company may designate by notice to ▇▇▇▇▇.
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14. Supplements; Amendments; Entire Agreement. This Agreement may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
15. Successors. All of the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, ▇▇▇▇▇ and their
respective successors and assigns hereunder.
16. Survival of Representations and Warranties. All statements in any
schedule, exhibit or certificate or other instrument delivered by or on behalf
of the parties hereto, or in connection with the transactions contemplated by
this Agreement, shall be deemed to be representations and warranties hereunder.
Notwithstanding any investigations made by or on behalf of the parties to this
Agreement, all representations, warranties and agreements made by the parties
to this Agreement or pursuant hereto shall survive.
17. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Michigan and for all purposes shall be construed in accordance with the laws of
said State without giving effect to the rules of said State governing the
conflicts of laws.
18. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
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20. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and ▇▇▇▇▇
any legal or equitable right, remedy or claim under this Agreement.
21. 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 such counterparts shall together constitute but one and the
same instrument.
IN WITNESS OF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
ATTEST: RIVIERA TOOL COMPANY
By:__________________ By: ___________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary Its President
By: ___________________
▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., MICHIGAN TIME, ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇ No. ____
_______________ Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that ▇▇▇▇ ▇. ▇▇▇▇▇ is the registered
holder of Warrants to purchase initially, at any time from March 4, 1997 until
5:30 p.m., Michigan time on March 3, 2000 ("Expiration Date"), up to _________
shares of fully-paid and non-assessable common stock, no par value (the "Common
Stock") of Riviera Tool Company, a Michigan corporation (the "Company"), at the
initial exercise price, subject to adjustment in certain events, of $_____ per
share of Common Stock (the "Exercise Price") upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of March 4, 1997 between the Company and ▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Warrant Agreement"). Payment of the Exercise Price shall be made by certified
or official bank check in New York Clearing House funds payable to the order of
the Company.
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No Warrant may be exercised after 5:30 p.m., Michigan time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and ▇▇▇▇ ▇. ▇▇▇▇▇.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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This Warrant Certificate does not entitle any holder thereof to any of the
rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed.
Dated as of March 4, 1997.
ATTEST: RIVIERA TOOL COMPANY
By: ___________________ By: __________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary Its President
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 4]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _________ shares of Common
Stock and herewith tenders in payment for such securities a certified or
official bank check payable in New York Clearing House Funds to the order of
Riviera Tool Company (the "Company") in the amount of $_____, all in accordance
with the terms of Section 4 of the Warrant Agreement dated as of March 4, 1997
among the Company and ▇▇▇▇ ▇. ▇▇▇▇▇. The undersigned requests that a
certificate for such securities be registered in the name of
________________________________ whose address is _____________________________
_____________________________ that such certificate be delivered
to___________________________ whose address is ________________________________
_________________ and if said number of shares shall not be all the shares
purchasable hereunder, 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 warrant holder or his assignee as below indicated and
delivered to the address stated below.
Dated: _______________
Signature:____________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
Address: ____________________________
______________________________________
______________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: ________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
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