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EXHIBIT
10.3
THIS COMMON STOCK PURCHASE
WARRANT AND THE SHARES THAT MAY BE PURCHASED HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. THIS COMMON STOCK PURCHASE WARRANT
HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
DISTRIBUTION, AND THIS COMMON STOCK PURCHASE WARRANT AND THE SHARES
THAT MAY BE PURCHASED HEREUNDER MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AND REGISTRATION OR QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL THAT THE
PROPOSED TRANSACTION DOES NOT VIOLATE THE SECURITIES ACT OF 1933,
AND APPLICABLE STATE SECURITIES LAWS.
THE PARENT
COMPANY
COMMON STOCK PURCHASE
WARRANT
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| Date of
Issuance: July 10, 2008 |
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Certificate No. W-2 |
THIS IS TO CERTIFY
that JOHN C. TEXTOR , a resident of the State of Florida,
and his transferees, successors and assigns (the “
Holder ”), for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, is
entitled (i) to purchase from THE PARENT COMPANY , a
Colorado corporation (the “ Company ”), at the
price of $1.6453 per share (the “ Exercise Price
”), at any time after the date hereof (the “
Commencement Date ”) and expiring on July 10,
2018 (the “ Expiration Date ”), 150,000 shares
of the fully paid and nonassessable Common Stock, par value $0.001
per share, of the Company (as such number may be adjusted as
provided herein). The 150,000 shares of Common Stock which may be
purchased pursuant to this Warrant are referred to herein as the
“ Aggregate Number .”
The Aggregate Number and
Exercise Price set forth above shall also be adjusted under certain
conditions specified in Section 5 of this Warrant,
including, but not limited to, Stock Dividends, Stock Subdivisions,
Stock Combinations and certain Capital Stock issuances. In
addition, the adjustments set forth above shall apply to any Common
Stock issued upon exercise of this Warrant.
Capitalized terms used herein
shall have the meanings ascribed to such terms in
Section 10 hereof unless otherwise defined
herein.
SECTION 1. The Warrant;
Transfer and Exchange .
(a) The Warrant . This
common stock purchase warrant (this “ Warrant ”)
is issued in connection with the execution and delivery of the
Personal Guaranty (as defined in the Investment Agreement) on the
Closing Date. This Warrant and the rights and privileges of the
Holder hereunder may be exercised by the Holder in whole or in part
as provided herein, shall survive any termination of said Personal
Guaranty and, as more fully set forth in Sections 1(b) and
7 hereof, subject to the terms of this Warrant, may be
transferred by the Holder to any other Person or Persons who meet
the requirements set forth herein at any time or from time to time,
in whole or in part, whether or not said Personal Guaranty is
outstanding or has been terminated.
(b) Transfer and
Exchanges . The Company shall initially record this Warrant on
a register to be maintained by the Company with its other books and
subject to Section 7 hereof, from time to time
thereafter shall reflect the transfer of this Warrant on such
register when surrendered for transfer in accordance with the terms
hereof and properly endorsed, accompanied by appropriate
instructions, and further accompanied by payment in cash or by
check, bank draft or money order payable to the order of the
Company, in United States currency, of an amount equal to any stamp
or other tax or governmental charge or fee required to be paid in
connection with the transfer thereof. Upon any such transfer, a new
warrant or warrants shall be issued to the transferee and the
Holder (in the event this Warrant is only partially transferred)
and the surrendered warrant shall be canceled. This Warrant may be
exchanged at the option of the Holder, when surrendered at the
Principal Office of the Company, for another warrant or other
warrants of like tenor and representing in the aggregate the right
to purchase a like number of shares of Common Stock.
SECTION 2. Exercise
.
(a) Right to Exercise
. At any time after the Commencement Date and on or before the
Expiration Date, the Holder, in accordance with the terms hereof,
may exercise this Warrant, in whole at any time or in part from
time to time, by delivering this Warrant to the Company during
normal business hours on any Business Day at the Company’s
Principal Office, together with the Notice of Exercise, in the form
attached hereto as Exhibit A and made a part hereof (the
“ Notice of Exercise ”), duly executed, and
payment of the Exercise Price per share for each share purchased,
as specified in the Notice of Exercise. The aggregate Exercise
Price (the “ Aggregate Exercise Price ”) to be
paid for the shares to be purchased (the “ Exercise
Amount ”) shall equal the product of (i) the
Exercise Amount multiplied by (ii) the Exercise Price. If the
Expiration Date is not a Business Day, then this Warrant may be
exercised on the next succeeding Business Day.
(b) Payment of the
Aggregate Exercise Price . Payment of the Aggregate Exercise
Price shall be made to the Company in cash or other immediately
available funds or as provided in Section 2(c) , or a
combination thereof. In the case of payment of all or a portion of
the Aggregate Exercise Price pursuant to Section 2(c) ,
the direction by the Holder to make a “Cashless
Exercise” shall serve as accompanying payment for that
portion of the Exercise Price.
(c) Cashless Exercise
. The Holder shall have the right to pay all or a portion of the
Aggregate Exercise Price by making a “Cashless
Exercise”, in which case the portion of the Aggregate
Exercise Price to be so paid shall be paid by reducing the number
of shares of Common Stock otherwise issuable pursuant to the Notice
of Exercise by an amount equal to (i) the Aggregate Exercise
Price to be so paid divided by (ii) the Fair Market Value Per
Share.
(d) Issuance of Shares of
Common Stock . Upon receipt by the Company of this Warrant at
its Principal Office in proper form for exercise, and accompanied
by the Notice of Exercise and payment of the Aggregate Exercise
Price as aforesaid, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that certificates representing such shares of
Common Stock may not then be actually delivered. Within three
Business Days after such surrender of this Warrant, delivery of the
Notice of Exercise and payment of the Aggregate Exercise Price as
aforesaid, the Company shall direct its transfer agent to issue and
cause to be delivered to, or upon the written order of, the Holder
(and in such name or names as the Holder may designate) a
certificate or certificates for the Exercise Amount, subject to any
reduction as provided in Section 2(c) for a Cashless
Exercise.
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(e) Fractional Shares
. The Company may, but shall not be required to, deliver fractions
of shares of Common Stock upon exercise of this Warrant. If any
fraction of a share of Common Stock would be deliverable upon an
exercise of this Warrant, the Company may, in lieu of delivering
such fraction of a share of Common Stock, make a cash payment to
the Holder in an amount equal to the same fraction of the Fair
Market Value Per Share determined as of the Business Day
immediately preceding the date of exercise of this
Warrant.
(f) Partial Exercise .
In the event of a partial exercise of this Warrant, the Company
shall issue to the Holder a Warrant in like form for the
unexercised portion thereof which has not expired.
SECTION 3. Payment of
Taxes . The Company shall pay all stamp taxes attributable
to the initial issuance of shares or other securities issuable upon
the exercise of this Warrant or issuable pursuant to
Section 5 hereof, excluding any tax or taxes which may
be payable because of the transfer involved in the issuance or
delivery of any certificates for shares or other securities in a
name other than that of the Holder in respect of which such shares
or securities are issued.
SECTION 4. Replacement
Warrant . In case this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue and deliver in exchange and
substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for this Warrant lost, stolen or
destroyed, a new Warrant of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction of such Warrant and upon receipt of indemnity
reasonably satisfactory to the Company provided that if the Holder
is a financial institution or other institutional or fund investor
its own agreement shall be satisfactory.
SECTION 5. Adjustments
to Aggregate Number and Exercise Price .
Under certain conditions, the
Aggregate Number and the Exercise Price are subject to adjustment
as set forth in this Section 5 .
(a) Adjustments . The
Aggregate Number and the Exercise Price, after taking into
consideration any prior adjustments pursuant to this
Section 5 , shall be subject to adjustment from time to
time as follows and, thereafter, as adjusted, shall be deemed to be
the Aggregate Number and the Exercise Price hereunder.
(i) Stock Dividends;
Subdivisions and Combinations . In case at any time or from
time to time the Company shall:
(A) issue to the holders of
its Common Stock a dividend payable in, or other distribution of,
shares of Common Stock (a “ Stock Dividend
”),
(B) subdivide its outstanding
shares of Common Stock into a larger number of shares of Common
Stock, including without limitation by means of a stock split (a
“ Stock Subdivision ”), or
(C) combine its outstanding
shares of Common Stock into a smaller number of shares of Common
Stock (a “ Stock Combination ”),
then the Aggregate Number in effect
immediately prior thereto shall be (1) proportionately
increased in the case of a Stock Dividend or a Stock Subdivision
and (2) proportionately decreased in the case of a Stock
Combination and the Exercise Price in effect immediately prior
thereto shall be (3) proportionately decreased in the case of
a Stock Dividend or a Stock Subdivision and (4)
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proportionately increased in the case of
a Stock Combination. In the event the Company shall declare or pay,
without consideration, any dividend on the Common Stock payable in
any right to acquire Common Stock for no consideration, then the
Company shall be deemed to have made a Stock Dividend in an amount
of shares equal to the maximum number of shares issuable upon
exercise of such rights to acquire Common Stock.
(ii) Other
Distributions . In case at any time or from time to time the
Company shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive any dividend or other
distribution (collectively, a “ Distribution ”)
of:
(A) cash,
(B) any evidences of its
indebtedness (other than Convertible Securities), any shares of its
Capital Stock (other than a Distribution of additional shares of
Common Stock or Convertible Securities) or any other securities or
property of any nature whatsoever (other than cash) or
(C) any options, warrants or
other rights to subscribe for or purchase any of the following: any
evidences of its indebtedness (other than Convertible Securities),
any shares of its Capital Stock (other than a Distribution of
additional shares of Common Stock or Convertible Securities) or any
other securities or property of any nature whatsoever,
then the Holder shall be entitled to
elect by written notice to the Company to receive
(1) immediately and without further payment the cash,
evidences of indebtedness, stock, securities, other property,
options, warrants and/or other rights (or any portion thereof) to
which the Holder would have been entitled by way of such
Distribution as if the Holder had exercised this Warrant
immediately prior to such Distribution or (2) upon the
exercise of this Warrant at any time on or after the taking of such
record in accordance with the terms hereof, the number of Warrant
Shares to be received upon exercise of this Warrant determined as
stated herein and, in addition and without further payment, the
cash, evidences of indebtedness, stock, securities, other property,
options, warrants and/or other rights (or any portion thereof) to
which the Holder would have been entitled by way of such
Distribution and subsequent dividends and distributions through the
date of exercise as if such Holder (x) had exercised this
Warrant immediately prior to such Distribution and (y) had
retained the Distribution in respect of the Common Stock and all
subsequent dividends and distributions of any nature whatsoever in
respect of any stock or securities paid as dividends and
distributions and originating directly or indirectly from such
Common Stock.
A reclassification of the
Common Stock into Capital Stock and shares of any other class of
stock shall be deemed a Distribution by the Company to the holders
of its Common Stock of such shares of such other class of Capital
Stock and, if the outstanding shares of Common Stock shall be
changed into a larger or smaller number of shares of Common Stock
as a part of such reclassification, such event shall be deemed a
Stock Subdivision or Stock Combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of
Section 5(a)(i) hereof rather than a
Distribution.
(iii) Issuance of Common
Stock . If at any time or from time to time the Company shall
(except as hereinafter provided in this
Section 5(a)(iii)) issue or sell any additional shares
of Common Stock for a consideration per share less than the Trigger
Price Per Share, then, effective on the date specified below, the
Exercise Price shall be reduced to the consideration per share
received by the Company; provided , however, in no event
shall the Exercise Price be adjusted upwards. The date as of which
the Trigger Price Per Share shall be computed and the Exercise
Price adjusted shall be the earlier of the date on which the
Company shall enter into a firm contract or commitment for the
issuance of such additional shares of Common Stock or the date of
actual issuance of such additional shares of Common
Stock.
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The provisions of this
Section 5(a)(iii) shall not apply to any issuance of
additional shares of Common Stock for which an adjustment is
otherwise provided under Section 5(a)(i) hereof or any
Distribution. No adjustment of the Exercise Price shall be made
under this Section 5(a)(iii) upon the issuance of any
additional shares of Common Stock which are issued pursuant to
(1) the exercise of this Warrant in whole or in part
(2) any other Exempt Issuances, (3) the exercise of other
subscription or purchase rights or (4) the exercise of any
conversion or exchange rights in any Convertible Securities,
provided that for purposes of clauses (3) or (4) an
adjustment shall previously have been made upon the issuance of
such other rights or upon the issuance of such Convertible
Securities (or upon the issuance of any warrants or other rights
therefor) pursuant to Section 5(a)(iv)
hereof.
(iv) Convertible
Securities . If at any time or from time to time the Company
shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a distribution of, or shall in
any manner (whether directly, by assumption in a merger in which
the Company is the surviving entity and in which the shareholders
of the Company immediately prior to the merger continue to own more
than 50% of the Outstanding Common Stock immediately after the
merger and for a period of 180 days thereafter, or otherwise) issue
or sell Convertible Securities (or any warrants, options or other
rights to subscribe for Convertible Securities), whether or not the
rights to subscribe, exchange or convert thereunder are immediately
exercisable, and the consideration per share for the additional
shares of Common Stock which may at any time thereafter be issuable
pursuant to the terms of such Convertible Securities shall be less
than the Trigger Price Per Share, then the Exercise Price shall be
adjusted as provided in Section 5(a)(iii) hereof. For
purposes of this Section 5(a)(iv) , the effective date
of such adjustment and the date as of which the Trigger Price Per
Share shall be computed shall be the earliest of (1) the date
on which the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive any such
Convertible Securities (or any warrants or options or other rights
to subscribe for Convertible Securities or Common Stock),
(2) the date on which the Company shall enter into a firm
contract or commitment for the issuance of such Convertible
Securities (or any warrants or options or other rights to subscribe
for Convertible Securities), and (3) the date of actual
issuance of such Convertible Securities (or any warrants or options
or other rights to subscribe for Convertible Securities or Common
Stock). Notwithstanding the foregoing, if any proposed issuance of
Convertible Securities referred to in clauses (1) and
(2) above shall be abandoned by the Company (with the result
that no Convertible Securities have been or will be issued in
connection with such proposed issuance), then any adjustment of the
Exercise Price pursuant to this Section 5(a)(iv) shall
be automatically rescinded.
(v) Subsequent
Adjustments . If at any time after an adjustment of the
Exercise Price has been made pursuant to
Section 5(a)(iv) hereof on the basis of the issuance of
Convertible Securities (or any warrants or options or other rights
to subscribe for Convertible Securities), warrants, options or
other rights, or after any new adjustments of the Exercise Price
shall have been made pursuant to this Section 5(a)(v)
,
(A) such warrants, options or
rights or the right of conversion or exchange in such Convertible
Securities shall expire, and all or any portion of such warrants,
options or rights, or the right of conversion or exchange in
respect of all or any portion of such Convertible Securities, as
the case may be, shall not have been exercised prior to such
expiration, and/or
(B) in the case of
adjustments made pursuant to Section 5(a)(iv) , the
consideration per share for which shares of Common Stock are
issuable pursuant to such warrants, options or rights per the terms
of such Convertible Securities shall
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be irrevocably increased
solely by virtue of provisions therein contained for an automatic
increase in such consideration per share upon the arrival of a
specified date or the happening of a specified event,
such previous adjustment shall be
rescinded and annulled and the additional shares of Common Stock
which were deemed to have been issued by virtue of the computation
made in connection with such adjustment shall no longer be deemed
to have been issued by virtue of such computation. Simultaneously
therewith, a recomputation shall be made of the effect of such
warrants, options or rights or Convertible Securities on the
determination of the Exercise Price, which shall be made on the
basis of:
(1) treating the number of
additional shares of Common Stock, if any, actually issued pursuant
to the previous exercise of such warrants, options or rights or
such right of conversion or exchange as having been issued on the
date or dates of such exercise and, in the case of a recomputation
of a calculation originally made pursuant to
Section 5(a)(iv) , for the consideration actually
received and receivable therefor, and
(2) in the case of a
recomputation of a calculation originally made pursuant to
Section 5(a)(iv) , treating any such warrants, options
or rights or any such Convertible Securities which then remain
outstanding as having been granted or issued immediately after the
time of such irrevocable increase of the consideration per share
for which shares of Common Stock are issuable under such warrants,
options or rights or Convertible Securities;
and, if and to the extent
called for by the foregoing provisions of this
Section 5(a)(v) on the basis aforesaid, a new
adjustment of the Exercise Price shall be made, such new adjustment
shall supersede the previous adjustment so rescinded and
annulled.
(vi) Exempt Issuances
. The provisions of Sections 5(a)(iii) and 5(a)(iv)
shall not apply to any issuance of additional shares of Common
Stock or Convertible Securities (A) for which an adjustment is
otherwise provided under Section 5(a)(i) hereof,
(B) pursuant to the exercise of this Warrant (or any warrant
issued as a replacement for this Warrant or upon the transfer or
partial exercise hereof) in whole or in part, (C) pursuant to
the exercise of any subscription or purchase rights, or the
exercise of any conversion or exchange rights in any Convertible
Securities, so long as an adjustment shall previously have been
made upon the issuance of such rights or upon the issuance of such
Convertible Securities (or upon the issuance of any warrants or
other rights therefor) pursuant to Section 5(a)(iv )
hereof, (D) pursuant to a bona fide underwritten public
offering of Common Stock registered under the Securities Act,
(E) upon the exercise of warrants or options to acquire Common
Stock issued and outstanding on the date of this Warrant,
(F) pursuant to the Company’s 2007 Long Term Incentive
Plan and any successor stock option or compensatory securities plan
adopted by the Company or any of its Subsidiaries, or
(G) issued pursuant to commercial bank financings, equipment
financing, leasing arrangements, corporate partnering arrangements,
strategic transactions (including joint ventures), acquisitions,
mergers or technology transfer or development arrangements,
provided any such issuance shall not include a transaction in which
the Company is issuing securities primarily for the purpose of
raising capital or to an entity whose primary business is investing
in securities (the issuances in subsections
(A)-(G) collectively, the “ Exempt Issuances
”).
(vii) Miscellaneous .
The following provisions shall be applicable to the making of
adjustments of the Aggregate Number and the Exercise Price provided
above in this Section 5(a) :
(A) The sale or other
disposition of any issued shares of Common Stock owned or held by
or for the account of the Company or any of its Subsidiaries shall
be deemed an issuance thereof for the purposes of this
Section 5(a) .
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(B) To the extent that any
additional shares of Common Stock or any Convertible Securities or
any warrants, options or other rights to subscribe for or purchase
any additional shares of Common Stock or any Convertible Securities
(1) are issued solely for cash consideration, the
consideration received by the Company therefor shall be deemed to
be the amount of the cash received by the Company therefor,
(2) are offered by the Company for subscription, the
consideration received by the Company shall be deemed to be the
subscription price or (3) are sold to underwriters or dealers
for public offering, the net consideration (after giving effect to
underwriting discounts) received by the Company shall be deemed to
be the consideration received by the Company therefor, in any such
case excluding any amounts paid or receivable for accrued interest
or accrued dividends. To the extent that such issuance shall be for
a consideration other than cash, or partially for cash and
partially for other consideration, then, except as otherwise
expressly provided herein, the amount of such consideration shall
be deemed to be the fair market value of such consideration plus,
if applicable, the amount of such cash received at the time of such
issuance, determined in the manner set forth in
Section 5(d)(ii) . In case any additional shares of
Common Stock or any Convertible Securities or any warrants, options
or other rights to subscribe for or purchase such additional shares
of Common Stock or Convertible Securities shall be issued in
connection with any merger in which the Company is the survivor and
issues any securities, the amount of consideration therefor shall
be deemed to be the fair market value of such additional shares of
Common Stock, Convertible Securities, warrants, options or other
rights, as the case may be, determined in the manner set forth in
Section 5(d)(ii) .
The consideration for any
shares of Common Stock issuable pursuant to the terms of any
Convertible Securities shall be equal to (x) the consideration
received by the Company for issuing any warrants, options or other
rights to subscribe for or purchase such Convertible Securities,
plus (y) the consideration paid or payable to the Company in
respect of the subscription for or purchase of such Convertible
Securities, plus (z) the consideration, if any, payable to the
Company upon the exercise of the right of conversion or exchange of
such Convertible Securities.
In case of the issuance at
any time of any additional shares of Common Stock or Convertible
Securities in payment or satisfaction of any dividends upon any
class of stock other than Common Stock, the Company shall be deemed
to have received for such additional shares of Common Stock or
Convertible Securities a consideration equal to the amount of such
dividend so paid or satisfied. In case of the issuance of any
Common Stock or Convertible Securities without consideration, then
the Company shall be deemed to have received an aggregate of $0.01
of consideration for all such shares of Common Stock or Convertible
Securities deemed to be issued.
(C) The adjustments required
by the preceding paragraphs of this Section 5(a) shall
be made whenever and as often as any specified event requiring an
adjustment shall occur, except that no adjustment of the Aggregate
Number that would otherwise be required shall be made (except in
the case of a Stock Subdivision or Stock Combination, as provided
for in Section 5(a)(i) hereof) unless and until such
adjustment either by itself or with other adjustments not
previously made adds or subtracts at least one one-tenth of one
share to or from the Aggregate Number immediately prior to the
making of such
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adjustment. Any adjustment
representing a change of less than such minimum amount (except as
aforesaid) shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this
Section 5(a) and not previously made, would result in a
minimum adjustment. For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(D) In computing adjustments
under this Section 5(a) , fractional interests in
Common Stock shall be taken into account to the nearest
one-thousandth of a share and the Exercise Price shall be
proportionately adjusted.
(E) If the Company shall take
a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or distribution or
subscription or purchase rights and shall, thereafter and before
the distribution to shareholders thereof, legally abandon its plan
to pay or deliver such dividend, distribution, subscription or
purchase rights, then no adjustment shall
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