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EXHIBIT 4.7
THE WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT (COLLECTIVELY,
THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES (COLLECTIVELY, THE “ACTS”).
THE SECURITIES MAY NOT BE SOLD, DISTRIBUTED, OFFERED, PLEDGED,
ENCUMBERED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF THE
FOLLOWING: (1) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE ACTS COVERING THE TRANSACTION, (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACTS,
OR (3) THE COMPANY OTHERWISE SATISFIES ITSELF THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACTS.
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| Warrant
No.: 02 |
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Number of Shares:
6,300,000 |
| Date of
Issuance: September 10, 2007 |
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(subject to adjustment) |
STOCK PURCHASE
WARRANT
To Subscribe for and
Purchase
Common Stock
of
Delphax Technologies
Inc.
THIS CERTIFIES THAT, for
value received, Whitebox Delphax, Ltd. (“Investor”), or
registered assigns, is entitled to subscribe for and purchase from
Delphax Technologies Inc. (the “Company”), a
corporation organized and existing under the laws of the State of
Minnesota, at the price specified below (subject to adjustment as
noted below) at any time after the date hereof to and including
September 10, 2012 (the “Expiration Date”)
6,300,000 (the “Share Number”) fully paid and
nonassessable shares of the Company’s common stock (the
“Common Stock”) (subject to adjustment as noted below).
This Warrant has been issued pursuant to a Securities Purchase
Agreement dated as of March 26, 2007 by and among the
Investor, the other Investors named on the signature pages thereto,
the Company and Delphax Technologies Canada Limited (“Delphax
Canada”) (as from time to time amended, the “Purchase
Agreement”), pursuant to which, among other things, Delphax
Canada agreed to issue its Secured Subordinated Notes in the
original principal amount of up to $7,000,000 to the Investor (the
“Notes”).
The warrant purchase price
(subject to adjustment as noted below) shall be $1.28 per share
(“Initial Exercise Price”).
This Warrant is subject to
the following provisions, terms and conditions:
1. The rights represented by
this Warrant may be exercised by the holder hereof, in whole or in
part, by written notice of exercise delivered to the Company and by
the surrender of this Warrant (properly endorsed if required) at
the principal office of the Company and upon payment to it by wire
transfer, certified check, bank draft or cash of the purchase price
for such shares or by cashless exercise pursuant to paragraph 10 or
surrender of Notes pursuant to paragraph 11. The Company agrees
that the shares so purchased shall be and are deemed to be issued
to the holder hereof as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. Subject
to the provisions of the next succeeding paragraph, certificates
for the shares of stock so purchased, together with a check in
payment of any fractional share and, in the case of a partial
exercise, a new warrant evidencing the shares remaining subject to
this Warrant, shall be delivered to the holder hereof within a
reasonable time, not exceeding 5 business days, after the rights
represented by this Warrant shall have been so
exercised.
2. Notwithstanding the
foregoing, however, the Company shall not be required to deliver
any certificate for shares of stock upon exercise of this Warrant
except in accordance with the provisions, and subject to the
limitations, of paragraph 6 hereof.
3. The Company represents and
warrants that this Warrant has been duly authorized by all
necessary corporate action, has been duly executed and delivered
and is a legal and binding obligation of the Company. The Company
covenants and agrees that all shares which may be issued upon the
exercise of the rights represented by this Warrant according to the
terms hereof will, upon issuance, be duly authorized and issued,
fully paid and nonassessable. The Company further covenants and
agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of issue or transfer
upon exercise of the subscription rights evidenced by this Warrant,
a sufficient number of shares of its Common Stock to provide for
the exercise of the rights represented by this Warrant. The Company
further covenants and agrees that the Company will not, by
amendment of its Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith
assist in the carrying out of all such items and in the taking of
all such action as may be necessary or appropriate in order to
protect the rights of the holder hereof against dilution or other
impairment. Without limiting the generality of the foregoing, the
Company will not increase the par value of any shares of stock
receivable on the exercise of this Warrant above the amount payable
therefor on such exercise.
4. The above provisions are,
however, subject to the following:
(a) The Initial Exercise
Price shall, from and after the date of issuance of this Warrant,
be subject to adjustment from time to time as hereinafter provided.
Upon each adjustment of the Initial Exercise Price, the holder of
this Warrant shall thereafter be entitled to purchase, at the
Initial Exercise Price resulting from such adjustment, the number
of shares obtained by multiplying the warrant purchase price in
effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment
and dividing the product thereof by the warrant purchase price
resulting from such adjustment.
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(b) Except for
(i) options to purchase shares of Common Stock and the
issuance of awards of Common Stock pursuant to key employee and
consultant benefit plans adopted by the Company and except for
shares of Common Stock issued upon the exercise of such options
granted pursuant to such plans (provided that the aggregate number
of shares thus awarded and covered by unexercised options and thus
issued pursuant to such options shall not be in excess of 500,000
shares (appropriately adjusted to reflect stock splits, stock
dividends, reorganizations, consolidations and similar changes)),
and (ii) issuances of securities as consideration for a
merger, acquisition, consolidation or purchase of assets, or in
connection with any strategic investments, joint venture or similar
commercial relationship (the primary purpose of which is not to
raise equity capital), if and whenever the Company shall issue or
sell any shares of its Common Stock for a consideration per share
less than the warrant purchase price in effect immediately prior to
the time of such issue or sale, then, forthwith upon such issue or
sale, the warrant purchase price shall be reduced to the price
(calculated to the nearest cent) determined by dividing (A) an
amount equal to the sum of (1) the number of shares of Common
Stock outstanding immediately prior to such issue or sale
multiplied by the then existing warrant purchase price, and
(2) the consideration, if any, received by the Company upon
such issue or sale, by (B) an amount equal to the sum of
(1) the number of shares of Common Stock outstanding
immediately prior to such issue or sale and (2) the number of
shares of Common Stock thus issued or sold.
(c) For the purposes of
paragraph (b), the following provisions (i) to (v),
inclusive, shall also be applicable:
(i) In case at any time the
Company shall grant (whether directly or by assumption in a merger
or otherwise) any rights to subscribe for or to purchase, or any
options for the purchase of, (aa) Common Stock or
(bb) any obligations or any shares of stock of the Company
which are convertible into or exchangeable for Common Stock (any of
such obligations or shares of stock being hereinafter called
“Convertible Securities”) whether or not such rights or
options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such rights or
options or upon conversion or exchange of such Convertible
Securities (determined by dividing (aa) the total amount, if
any, received or receivable by the Company as consideration for the
granting of such rights or options, plus the minimum aggregate
amount of additional consideration payable to the Company upon the
exercise of such rights or options, plus, in the case of such
rights or options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any,
payable upon the issue or sale of such Convertible Securities and
upon the conversion or exchange thereof, by (bb) the total
maximum number of shares of Common Stock issuable upon the exercise
of such rights or options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such
rights or options) shall be less than the warrant purchase price in
effect immediately prior to the time of the granting of
such
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rights or options, then the
total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or upon conversion or exchange
of the total maximum amount of such Convertible Securities issuable
upon the exercise of such rights or options shall (as of the date
of granting of such rights or options) be deemed to have been
issued for such price per share. Except as provided in
paragraph (f) below, no further adjustments of the warrant
purchase price shall be made upon the actual issue of such Common
Stock or of such Convertible Securities upon exercise of such
rights or options or upon the actual issue of such Common Stock
upon conversion or exchange of such Convertible
Securities.
(ii) In case the Company
shall issue or sell (whether directly or by assumption in a merger
or otherwise) any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately exercisable, and
the price per share for which Common Stock is issuable upon such
conversion or exchange (determined by dividing (aa) the total
amount received or receivable by the Company as consideration for
the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to
the Company upon the conversion or exchange thereof, by
(bb) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible
Securities) shall be less than the warrant purchase price in effect
immediately prior to the time of such issue or sale, then the total
maximum number of shares of Common Stock issuable upon conversion
or exchange of all such Convertible Securities shall (as of the
date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share,
provided that (x) except as provided in paragraph (f)
below, no further adjustments of the warrant purchase price shall
be made upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities, and (y) if any
such issue or sale of such Convertible Securities is made upon
exercise of any rights to subscribe for or to purchase or any
option to purchase any such Convertible Securities for which
adjustments of the warrant purchase price have been or are to be
made pursuant to other provisions of this paragraph (c), no
further adjustment of the warrant purchase price shall be made by
reason of such issue or sale.
(iii) In case any shares of
Common Stock or Convertible Securities or any rights or options to
purchase any such Common Stock or Convertible Securities shall be
issued or sold for cash, the consideration received therefor shall
be deemed to be the amount received by the Company therefor,
without deduction therefrom of any expenses incurred or any
underwriting commissions, discounts or concessions paid or allowed
by the Company in connection therewith. In case any shares of
Common Stock or Convertible Securities or any rights or options to
purchase any such Common Stock or Convertible Securities shall be
issued or sold for a consideration other than cash, the amount of
the consideration other than cash received by the Company shall be
deemed to be the fair value of such consideration
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as determined by the Board of
Directors of the Company, without deducting therefrom of any
expenses incurred or any underwriting commissions, discounts or
concessions paid or allowed by the Company in connection therewith.
In case any shares of Common Stock or Convertible Securities or any
rights or options to purchase such Common Stock or Convertible
Securities shall be issued in connection with any merger or
consolidation in which the Company is the surviving corporation,
the amount of consideration therefor shall be deemed to be the fair
value as determined by the Board of Directors of the Company of
such portion of the assets and business of the non-surviving
corporation or corporations as such Board shall determine to be
attributable to such Common Stock, Convertible Securities, rights
or options, as the case may be. In the event of any consolidation
or merger of the Company in which the Company is not the surviving
corporation or in the event of any sale of all or substantially all
of the assets of the Company for stock or other securities of any
other corporation, the Company shall be deemed to have issued a
number of shares of its Common Stock for stock or securities of the
other corporation computed on the basis of the actual exchange
ratio on which the transaction was predicated and for a
consideration equal to the fair market value on the date of such
transaction of such stock or securities of the other corporation,
and if any such calculation results in adjustment of the warrant
purchase price, the determination of the number of shares of Common
Stock issuable upon exercise of this Warrant immediately prior to
such merger, conversion or sale, for purposes of paragraph (g)
below, shall be made after giving effect to such adjustment of the
warrant purchase price.
(iv) In case the Company
shall take a record of the holders of its Common Stock for the
purpose of entitling them (aa) to receive a dividend or other
distribution payable in Common Stock or in Convertible Securities,
or in any rights or options to purchase any Common Stock or
Convertible Securities, or (bb) to subscribe for or purchase
Common Stock or Convertible Securities, then such record date shall
be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other
distribution or the date of the granting of such rights of
subscription or purchase, as the case may be.
(v) The number of shares of
Common Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Company, and the
disposition of any such shares shall be considered an issue or sale
of Common Stock for the purposes of this
paragraph (c).
(d) In case the Company shall
(i) declare a dividend upon the Common Stock payable in Common
Stock (other than a dividend declared to effect a subdivision of
the outstanding shares of Common Stock, as described in
subparagraph (e) below) or Convertible Securities, or in any
rights or options to purchase any Common Stock or Convertible
Securities, or (ii) declare any other dividend or make any
other distribution upon the Common Stock payable otherwise than out
of earnings or earned surplus, then thereafter the holder of this
Warrant upon the
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exercise hereof will be entitled to
receive the number of shares of Common Stock to which such holder
shall be entitled upon such exercise, and, in addition and without
further payment therefor, such number of shares of Common Stock,
such that upon exercise hereof, such holder would receive such
number of shares of Common Stock as a result of each dividend
described in clause (i) above and each dividend or
distribution described in clause (ii) above which such holder
would have received by way of any such dividend or distribution if
continuously since the record date for any such dividend or
distribution such holder (i) had been the record holder of the
number of shares of Common Stock then received, and (ii) had
retained all dividends or distributions in stock or securities
(including Common Stock or Convertible Securities, or in any rights
or options to purchase any Common Stock or Convertible Securities)
payable in respect of such Common Stock or in respect of any stock
or securities paid as dividends or distributions and originating
directly or indirectly from such Common Stock. For the purposes of
the foregoing, a dividend or distribution other than in cash shall
be considered payable out of earnings or surplus only to the extent
that such earnings or surplus are charged an amount equal to the
fair value of such dividend as determined by the Board of Directors
of the Company.
(e) In case the Company shall
at any time subdivide its outstanding shares of Common Stock into a
greater number of shares, the warrant purchase price in effect
immediately prior
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