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Exhibit 10.3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER APPLICABLE STATE SECURITIES LAWS.
EXCEPT AS PROVIDED HEREIN, THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE WITH APPLICABLE LAWS AND THE OTHER
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
DURASWITCH INDUSTRIES, INC.
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WARRANT TO PURCHASE COMMON STOCK
APRIL 20, 2000
1. GRANT. DuraSwitch Industries, Inc, a Nevada
corporation (hereinafter, "COMPANY"), for value received hereby grants to Delphi
Automotive Systems Corporation, a Delaware corporation ("HOLDER") the right from
time to time to subscribe for and purchase up to 225,000 shares of Company's
authorized but unissued $.001 par value common stock (the "COMMON STOCK"),
subject to adjustment as provided below. (The shares of Common Stock issuable
under this Warrant are referred to as the "WARRANT SHARES".)
2. TERM. This Warrant may be exercised at any time
before 11:59 p.m. on April 20, 2002, or 11:59 p.m. on April 20, 2004 if Holder
exercises its call option for Company's stock dated April 20, 2000 (the
"EXERCISE PERIOD").
3. EXERCISE PRICE. The exercise price of this Warrant
(the "ORIGINAL EXERCISE PRICE") is $ 7.00 per share.
4. RESERVATION AND AUTHORIZATION OF COMMON STOCK.
Company agrees (a) that all Warrant Shares will, upon issuance, be validly
issued, fully paid and non-assessable and free of all transfer taxes, liens and
charges, (b) that during the Exercise Period, Company will at all times have
authorized and reserved for the purpose of issue or transfer upon exercise of
this Warrant, sufficient shares of Common Stock to provide for the exercise of
this Warrant and (c) that Company will take all such actions as may be necessary
to ensure that the Warrant Shares may be issued without violation of any
applicable law or regulation, or any requirement of any securities exchange upon
which any capital stock of Company may be listed.
5. EXERCISE PROCEDURE.
(a) Holder may exercise this Warrant, in whole or in part
(but not as to a fractional share of Common Stock), by presenting it
and tendering the Exercise Price for the Warrant Shares as to which the
Warrant is being exercised in legal tender or by certified check or
wire transfer to Company, at Company's principal executive offices,
along with a duly exercised written subscription substantially in the
form of Exhibit 5. (The date on which this Warrant is thus surrendered
is referred to as the "EXERCISE DATE".) Company shall promptly, but in
no event later than ten (10) days after the Exercise Date, at its
expense (including the payment of issuance taxes), issue and deliver to
Holder certificate(s) representing the number of shares of Common Stock
so purchased, together with any cash in lieu of fractional shares
pursuant to subparagraph 5(b) below. Such shares of Common Stock shall
be deemed issued to Holder for all purposes as of the opening of
business on the Exercise Date notwithstanding any delay in the actual
issuance. Unless this Warrant has expired (or been exercised in full),
a new Warrant representing the portion of this Warrant, if any, that
shall not have been exercised also shall be delivered to Holder within
such time.
(b) Company shall not be required to issue fractional
shares of Common Stock on the exercise of this Warrant. The number of
full shares of Common Stock which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of whole shares
of
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Common Stock purchasable on exercise of the Warrant (or portion thereof
so presented). If any fraction of a share of Common Stock would, except
for the provisions of this subparagraph 5(b), be issuable on the
exercise of the Warrant (or proportion thereof so presented), Company
shall pay an amount in cash calculated by it to be equal to the product
yielded by the multiplication of (i) the Fair Market Value of a share
of Common Stock on the Exercise Date by (ii) the fraction of a share of
Common Stock which Holder would otherwise be entitled to receive as a
result of such exercise.
6. RESALE OF WARRANT OR SHARES. Neither this Warrant nor
the Warrant Shares have been registered under the Securities Act or under the
securities laws of any state. Neither this Warrant nor such shares when issued
may be sold or transferred, in the absence of (i) an effective registration
statement for this Warrant or such shares, as the case may be, under the
Securities Act and such registration or qualification as may be necessary under
the securities laws of any state, or (ii) if requested by Company, an opinion of
counsel reasonably satisfactory to Company (who may be inside counsel to Holder)
that such registration or qualification is not required. Company shall cause any
certificate evidencing securities issued upon exercise of this Warrant before
said registration and qualification of such securities to bear an appropriate
legend describing the foregoing transfer restrictions. Notwithstanding any other
provision of this Warrant, Holder may transfer this Warrant (in whole or in
part) and any securities issuable upon exercise of this Warrant to any person or
entity which is an affiliate or subsidiary of Holder.
7. TRANSFER. This Warrant shall be registered on the
books of Company which shall be kept at its principal office for that purpose,
and, subject to paragraph 6, shall be transferable in whole or in part but only
on such books by Holder in person or by duly authorized attorney with written
notice substantially in the form of Exhibit 7 hereof. Company will at no time
close its transfer books against the transfer of this Warrant or of any shares
of Common Stock or other securities issuable upon the exercise of this Warrant
in any manner which interferes with the timely exercise of this Warrant.
8. ADJUSTMENTS UPON CERTAIN EVENTS.
(a) STOCK SPLIT OR DIVIDEND; ADJUSTMENT TO EXERCISE PRICE
AND NUMBER OF WARRANT SHARES. If the shares of Common Stock at any time
outstanding shall be subdivided into a greater or combined into a
lesser number of shares of Common Stock, by stock-split, reverse split
or otherwise, or if shares of Common Stock shall be issued as a stock
dividend, the Exercise Price shall be increased or decreased, as
applicable, to an amount which shall bear the same relation to the
Exercise Price in effect immediately before such subdivision,
combination or stock dividend as the total number of shares of Common
Stock outstanding immediately after such subdivision, combination or
stock dividend shall bear to the total number of shares of Common Stock
outstanding immediately before such subdivision, combination or stock
dividend; likewise, in case of any such subdivision, combination or
stock dividend, the number of Warrant Shares shall be increased or
decreased as applicable, to the number which shall bear the same
relation to the number of Warrant Shares obtainable hereunder
immediately before such event, as the total number of shares of Common
Stock outstanding immediately after such event shall bear to the total
number of shares of Common Stock outstanding immediately before such
event. An adjustment made pursuant to this subparagraph 8(a) shall
become effective immediately upon the effective date of such
subdivision, combination or stock dividend retroactive to the record
date, if any, for such subdivision, combination or stock dividend.
(b) MERGER, RECLASSIFICATION, ETC. In case of any capital
reorganization, or any reclassification of the Common Stock, or in case
of any consolidation of Company with or the merger of Company into any
other corporation or other entity (other than a consolidation or merger
in which Company is the continuing corporation) or in case of the sale
of all or substantially all of the property and assets of Company to
any other corporation or other entity, this Warrant shall, effective
upon such reorganization, reclassification, consolidation, merger or
sale be exercisable upon the terms and conditions specified herein, for
the number of shares of stock or other securities or property of
Company, or of the corporation, person or other entity
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resulting from such consolidation or surviving such merger or to which
such sale shall be made, as the case may be, which Holder of this
Warrant would have been entitled to receive had this Warrant been
exercised immediately before such reorganization, reclassification,
consolidation, merger or sale or any record date with respect thereto.
In any such case, if necessary, the provision set forth in this Warrant
with respect to the rights and interests thereafter of Holder shall be
appropriately adjusted in good faith by the Board of Directors of
Company so as to be applicable, as nearly as may reasonably be
possible, to any shares of stock or other securities or property
thereafter deliverable on the exercise of this Warrant. The subdivision
or combination of shares of Common Stock at any time outstanding into a
greater or lesser number of shares of Common Stock which results in
adjustment pursuant to subparagraph 8(a) above shall not be deemed to
be a reclassification of the Common Stock of Company for the purposes
of this subparagraph 8(b). Company shall not effect any such
consolidation, merger, or sale, unless before or upon the consummation
thereof the successor corporation (if other than Company) resulting
from such consolidation or merger or the corporation purchasing such
assets shall assume, by written instrument executed and delivered to
Company and Holder, the obligation to deliver to Holder such shares of
stock, securities or assets to which in accordance with the foregoing
provisions, such Holder may be entitled, as well as any other
obligations arising under this Warrant. If any such transaction occurs,
but does not expressly incorporate a price per share of Common Stock of
Company, Company's Board of Directors shall nonetheless reduce the
Exercise Price if, in good faith, it concludes that such transaction
values Company at a per share price of less than the Exercise Price.
(c) LIQUIDATING DIVIDENDS, ETC. If Company makes a
distribution of its assets to the holders of its Common Stock as a
dividend in liquidation or by way of return of capital or other than as
a dividend payable out of earnings or surplus legally available for
dividends under applicable law or any distribution to such holders made
in respect of the sale of all or substantially all of Company's assets
(other than as provided in Sections 8(a) or 8(b), Holder shall be
entitled to receive upon the exercise hereof, in addition to the shares
of Common Stock receivable upon such exercise, and without payment of
any consideration other than the Exercise Price, an amount in cash
equal to the fair market value of such distribution per share of Common
Stock multiplied by the number of shares of Common Stock which, on the
record date for such distribution, are issuable upon exercise of this
Warrant, or if no such record is taken, as of the date of such
distribution (with no further adjustment being made following any event
which causes a subsequent adjustment in the number of shares of Common
Stock issuable upon the exercise hereof), and an appropriate provision
therefor shall be made a part of any such distribution.
(d) NOTICE OF ADJUSTMENT. Whenever the number of Warrant
Shares or the Exercise Price is adjusted, as herein provided, Company
shall promptly notify Holder in writing of such adjustment(s) and shall
deliver to such Holder a statement setting forth the number of Warrant
Shares and the Exercise Price after such adjustment(s), setting forth a
brief statement of the facts requiring such adjustment(s) and setting
forth the computation by which such adjustment(s) was made.
(e) STATEMENT OF WARRANT. The form of this Warrant need
not be changed because of any change in the Exercise Price or in the
number of Warrant Shares.
9. NOTICE. When any notice is required by this Warrant
to be given to a person, such notice shall be provided by first class mail,
postage prepaid or by facsimile transmission or any other means of physical
delivery reasonably calculated to reach such person at least as quickly as first
class mail, to the principal executive offices of such person, attention:
Corporate Secretary.
10. REPLACEMENT OF WARRANT. At the request of Holder and
on production of evidence reasonably satisfactory to Company of the loss, theft,
destruction or mutilation of this Warrant (and in the case of loss, theft, or
destruction, if required by Company, upon delivery of an indemnity agreement
reasonably requested by Company), Company at its expense will issue in lieu
thereof a new
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Warrant of like tenor, representing the right to subscribe for and purchase the
number of shares of Common Stock which may be subscribed for and purchased
hereunder.
11. REPRESENTATIONS.
(a) Holder, by its acceptance hereof represents that it
is an accredited investor within the meaning of Rule 501 of the
Securities Act and covenants that this Warrant is, and any stock issued
hereunder will be, acquired for investment purposes, and that Holder
will not distribute the same in violation of any state or federal law
or regulation.
(b) Company represents that it is duly incorporated under
the laws of the State of Nevada; that Company has been duly authorized
by all necessary corporate action to issue this Warrant to Holder; and
that this Warrant, when executed on Company's behalf by the person
named below will be binding upon Company in accordance with its terms.
IN WITNESS WHEREOF, Company has caused this Warrant to be
signed on its behalf by its undersigned officer, and its corporate seal to be
hereunto affixed, as of the date first above written.
DURASWITCH INDUSTRIES, INC.
Attest:
By: By:
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Title: Title:
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[Corporate Seal]
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EXHIBIT 5
FORM OF ELECTION TO PURCHASE
TO: DURASWITCH INDUSTRIES, INC.
Ladies and Gentlemen:
The undersigned hereby elects to exercise its right
under the attached Warrant by purchasing
____________________ shares of the Common Stock of
Company, and herewith tenders in payment for such
shares the aggregate exercise price of
$_____________________ all in accordance with the
terms of the attached Warrant.
The undersigned requests that the certificate(s) for such
shares be issued in the name of _________________________ whose taxpayer number
is _________________ and whose address is __________________________
_______________________ and that such certificates (and any cash delivered
therewith) be delivered to _______________________________ whose address is
____________________________________________.
Date:_____________________
Signed:_____________________________________
(Signature must conform in all respects to name of Holder as specified
on face of the Warrant.)
Name of Holder:____________________________________________________________
(please print)
Address of Holder:____________________________________________________________
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EXHIBIT 7
ASSIGNMENT
FOR VALUE RECEIVED,
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(Name)
whose address is
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ASSIGNS AND TRANSFERS the attached Warrant together with all right, title and
interest therein, and does hereby irrevocably appoint
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-------------------------- attorney to transfer said Warrant on the books of
Company with full power of substitution in the premises.
Done this day of
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Signed:
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By:
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Its:
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