EXHIBIT 4.9
THIS WARRANT AND ANY SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR
SALE, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR UPON AN OPINION OF COUNSEL OR SUCH OTHER EVIDENCE REASONABLY SATISFACTORY TO
FIBERSTARS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT
TO RULE 144 OF SUCH ACT OR ANOTHER APPLICABLE EXEMPTION.
FIBERSTARS, INC.
Warrant Exercisable for the Purchase of 81,014 Shares of Common Stock
No. W-CS 35 December 12, 2003
THIS CERTIFIES that, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, ▇▇▇▇▇▇▇▇ Curhan Ford & Co.
(formerly known as RTX Securities Corporation) or registered assigns (the
"HOLDER"), is entitled to subscribe for and purchase from FIBERSTARS, INC., a
California corporation (the "COMPANY"), upon the terms and conditions set forth
herein, at any time or from time to time during the period commencing August 14,
2004 and ending at 5:00 p.m. (Pacific time) on August 13, 2008 (the "EXERCISE
PERIOD"), up to an aggregate of 81,014 fully paid and non-assessable shares (the
"WARRANT SHARES") of the Company's Common Stock (the "COMMON STOCK"), at an
initial exercise price (subject to adjustment as set forth herein, the "EXERCISE
PRICE") of $4.50 per share, upon surrender of this Warrant and payment of the
Exercise Price as provided in Section 2. As used herein, the term "THIS WARRANT"
shall mean and include this Warrant and any Warrant or Warrants hereafter issued
as a consequence of the exercise or transfer of this Warrant in whole or in
part.
1. WARRANT. This Warrant is issued pursuant to Section 5(a)(ii) of the Letter
Agreement dated March 27, 2003 between RTX Securities Corporation and the
Company.
2. EXERCISE OF WARRANT. This Warrant may be exercised, in whole at any time
or in part from time to time, during the Exercise Period by the surrender of
this Warrant (with a completed Election to Exercise attached hereto), to the
Company at its main office, or such other place which the Company may designate
in writing, together with proper payment of an amount equal to the product of
the Exercise Price and the number of Warrant Shares being exercised (the
"AGGREGATE WARRANT PRICE"). Payment of the Aggregate Warrant Price shall be made
by certified or official bank check payable to the order of the Company or by
wire transfer of immediately available funds to an account designated by the
Company. If this Warrant is exercised in part, this Warrant must be exercised
for a number of whole shares of Common Stock, and the Holder shall be entitled
to receive a new Warrant covering the Warrant Shares which have not been
exercised. Upon surrender of this Warrant, the Company will (a) issue a
certificate or certificates in the name of the Holder for the largest number of
whole shares of Common Stock to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional share of the Common
Stock to which the Holder shall be entitled, pay to the Holder cash in an amount
equal to the fair market value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(b) deliver the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
3. CASHLESS EXERCISE. Notwithstanding anything contained herein to the
contrary, the holder of this Warrant may, in its sole discretion, exercise this
Warrant in whole or in part and, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in payment of the
Aggregate Warrant Price, elect instead to receive upon such exercise the "NET
NUMBER" of shares of Common Stock determined according to the following formula
(a "CASHLESS EXERCISE"):
Net Number = A X (B - C)
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B
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is
then being exercised.
B = the closing sale price of the Common Stock (as reported by The
Wall Street Journal) on the date immediately preceding the date the
Election to Exercise is received by the Company.
C = the Exercise Price then in effect for the applicable Warrant
Shares at the time of such exercise.
4. REGISTRATION AND TRANSFERS.
4.1. REGISTRATION. Any Warrants issued upon the transfer or exercise in
part of this Warrant shall be numbered and shall be registered in a warrant
register (the "WARRANT REGISTER") maintained by the Company or its transfer
agent as they are issued. The Company shall be entitled to treat the registered
holder of any Warrant on the Warrant Register as the owner in fact thereof for
all purposes and shall not be bound by any notice to the contrary or to
recognize any equitable or other claim to or interest in such Warrant on the
part of any other person.
4.2. TRANSFERS. This Warrant and the Warrant Shares issued upon the
exercise of this Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, if such are
requested by the Company. The Holder, by acceptance hereof, acknowledges that
this Warrant and the Warrant Shares to be issued upon exercise hereof are being
acquired solely for the Holder's own account and not as a nominee for any other
party, and for investment, and that the Holder will not offer, sell or otherwise
transfer any Warrant Shares to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any state
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securities laws and other than in a transaction covered by an effective
registration statement filed under or exempted from the registration
requirements of the Act); provided, however, the Holder may transfer this
Warrant to one or more of its affiliates if such affiliate is an "accredited
investor" under Regulation D under the Act and agrees to be bound by the terms
and obligations of this Warrant.
5. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES.
5.1. SUBDIVISION AND COMBINATION. In the event that the Company shall at
any time subdivide (by stock split, stock dividend or otherwise) or combine the
outstanding Common Stock, the Exercise Price shall be decreased, in the case of
subdivision, or increased, in the case of combination, in the same proportion as
the Common Stock is subdivided or combined, in each case effective automatically
upon, and simultaneously with, the effectiveness of the subdivision or
combination which gives rise to the adjustment.
5.2. ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 5, the number of Warrant Shares
issuable upon the exercise of this Warrant shall be adjusted 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 this
Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price, and by then rounding to the nearest
whole share.
5.3. MERGER OR CONSOLIDATION. In case the Company after the date hereof
(i) shall consolidate with or merge into any other person and shall not be the
continuing or surviving corporation of such consolidation or merger, or (ii)
shall permit any other person to consolidate with or merge into the Company and
the Company shall be the continuing or surviving person but, in connection with
such consolidation or merger, the Common Stock shall be changed into or
exchanged for stock or other securities of any other person or cash or any other
property, or (iii) shall transfer all or substantially all of its properties or
assets to any other person, or (iv) shall effect a capital reorganization or
reclassification of the Common Stock (other than a capital reorganization or
reclassification resulting in the issue of additional Common Stock for which
adjustment in the Exercise Price is provided in this Section 5), then, and in
the case of each such transaction, proper provision shall be made so that, upon
the basis and the terms and in the manner provided in this Warrant, the Holder
of this Warrant, upon the exercise hereof at any time after the consummation of
such transaction, shall be entitled to receive (at the aggregate Exercise Price
in effect at the time of such consummation for all Warrant Shares issuable upon
such exercise immediately prior to such consummation), in lieu of the Common
Stock or other securities issuable upon such exercise prior to such
consummation, the highest amount of securities, cash or other property to which
the Holder would actually have been entitled as shareholder upon such
consummation if the Holder had exercised the rights represented by this Warrant
immediately prior thereto, subject to adjustments (subsequent to such
consummation) as nearly equivalent as possible to the adjustments provided for
in this Section 5.
5.4. ASSUMPTION OF OBLIGATIONS. Notwithstanding anything contained in this
Warrant to the contrary, the Company will not effect any of the transactions
described in clauses (i) through (iv) of Section 5.3 unless, prior to the
consummation thereof, each person (other than the Company) which may be required
to deliver any stock, securities, cash or property upon the exercise of this
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Warrant as provided herein shall assume, by written instrument delivered to, and
reasonably satisfactory to, the Holder of this Warrant, (a) the obligations of
the Company under this Warrant (and if the Company shall survive the
consummation of such transaction, such assumption shall be in addition to, and
shall not release the Company from, any continuing obligations of the Company
under this Warrant) and (b) the obligation to deliver to the Holder such shares
of stock, securities, cash or property as, in accordance with the foregoing
provisions of this Section 5, the Holder may be entitled to receive.
5.5. NOTICE OF ADJUSTMENT EVENTS. Whenever the Company contemplates the
occurrence of an event which would give rise to adjustments under this Section
5, the Company shall use commercially reasonable efforts to deliver to the
Holder of this Warrant, at least thirty (30) days prior to the record date with
respect to such event or, if no record date shall be established, at least
thirty (30) days prior to such event, a notice specifying (i) the nature of the
contemplated event, (ii) the date on which any such record is to be taken for
the purpose of such event, (iii) the date on which such event is expected to
become effective and (iv) the time, if any is to be fixed, when the holders of
record of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable in connection with such event.
5.6. NOTICE OF ADJUSTMENTS. Whenever the Exercise Price or the kind of
securities or property issuable upon exercise of this Warrant, or both, shall be
adjusted pursuant to this Section 5, the Company shall make a certificate signed
by an executive officer of the Company, setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method of
which such adjustment was calculated (including a description of the basis on
which the Company made any determination hereunder), and the Exercise Price and
the kind of securities or property issuable upon exercise of this Warrant after
giving effect to such adjustment, and shall cause copies of such certificate to
be mailed (by first class mail, postage prepaid) to the Holder promptly after
each adjustment.
6. RESERVATION OF SHARES; FULLY PAID STOCK.
6.1. The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized and unissued Common Stock, solely for
the purpose of providing for the exercise of the rights to purchase all Warrant
Shares granted pursuant to this Warrant, such number of shares of Common Stock
as shall, from time to time, be sufficient therefor.
6.2. The Company covenants that all shares of Common Stock issuable upon
exercise of this Warrant, upon receipt by the Company of the full Exercise Price
therefor, shall be duly and validly issued, fully paid, non-assessable, and the
Holder shall receive good and valid title to such shares free and clear from any
adverse claim (as defined in the applicable Uniform Commercial Code), except
such as has been created by the Holder.
7. TAXES. The issuance of any shares or other securities upon the exercise of
this Warrant, and the delivery of certificates or other instruments representing
such shares or other securities, shall be made without charge to the Holder for
any tax or other charge in respect of such issuance, other than applicable
transfer taxes. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue and delivery of
any certificate in a name other than that of the Holder and the Company shall
not be required to issue or deliver any such certificate unless and until the
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person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
8. LEGEND. The Warrant Shares issued upon exercise of this Warrant shall be
subject to a stop transfer order and the certificate or certificates evidencing
such Warrant Shares shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR SALE,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR UPON AN OPINION OF COUNSEL OR SUCH OTHER EVIDENCE REASONABLY
SATISFACTORY TO FIBERSTARS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR ANOTHER APPLICABLE
EXEMPTION."
together with such other legends as may be required under state securities laws.
9. REPLACEMENT WARRANT. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction, or mutilation of this Warrant (and upon
surrender of this Warrant at the principal office of the Company if mutilated),
and upon reimbursement of the Company's reasonable incidental expenses and, if
reasonably requested, an indemnity reasonably acceptable to the Company, the
Company shall execute and deliver to the Holder a new Warrant of like date,
tenor, and denomination.
10. NOTICES.
Unless otherwise provided, any notice, request, demand or other
communication required or permitted under this Warrant shall be given in writing
and shall be deemed effectively given upon personal delivery to the party to be
notified, or when sent by facsimile (with receipt confirmed and promptly
confirmed by personal delivery, U.S. first class mail, or courier), or overnight
courier service, or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed as follows (or to
such other address as a party may designate by notice to the other):
If to the Company:
Fiberstars, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Pillsbury Winthrop LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Holder:
▇▇▇▇▇▇▇▇ Curhan Ford & Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
11. HOLDER NOT A SHAREHOLDER. The Holder shall not have, solely on account of
such status, any rights of a shareholder of the Company, either at law or in
equity, or to any notice of meetings of shareholders or of any other proceedings
of the Company, except as provided in this Warrant.
12. REMEDIES. The Company agrees that the remedies at law of the Holder, in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms hereof, may not be adequate and such
terms may, in addition to and not in lieu of any other remedy, be specifically
enforced by a decree of specific performance of any agreement contained herein
or by an injunction against a violation of any of the terms hereof or otherwise.
13. HEADINGS. The headings contained in this Warrant are for convenience of
reference only and are not part of this Warrant.
14. APPLICABLE LAW. This Warrant shall be construed in accordance with the
laws of the State of California applicable to contracts made and to be performed
within such State, without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, the Company has executed and delivered this
Warrant as of the date set forth above.
FIBERSTARS, INC.,
a California corporation
By:
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Name:
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Title:
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ELECTION TO EXERCISE
Fiberstars, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The undersigned hereby exercises his or its rights to purchase _______ Warrant
Shares covered by the within Warrant No. W-CS 35 and tenders payment herewith in
accordance with the terms thereof, certifies that he owns this Warrant free and
clear of any and all claims, liens and/or encumbrances and requests that
certificates for such securities be issued in the name of, and delivered to:
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(Print Name, Address and Social Security
or Tax Identification Number)
The undersigned hereby elects to pay the Exercise Price (select one option):
___ By payment of cash, check or wire transfer; or
___ By Cashless Exercise (as calculated pursuant to Section 3
of the Warrant).
If the number of Warrant Shares purchased upon such exercise or surrendered in
lieu of payment of the Exercise Price shall not be all the Warrant Shares
covered by the within Warrant, the undersigned requests that a new Warrant for
the balance of the Warrant Shares covered by the within Warrant be registered in
the name of, and delivered to, the undersigned at the address stated below.
All terms used and not defined herein shall have their respective meanings as
set forth in the Warrant.
Dated: Holder:
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(Please Print)
By:
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(Signature)
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(Please Print Name)
Title:
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Address:
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