Exhibit 10.1
THE SECURITIES REPRESENTED BY THIS WARRANT OR
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER EITHER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE DISTRIBUTED FOR VALUE UNLESS THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND SUCH LAWS
COVERING SUCH SECURITIES, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT, OFFER, PLEDGE OR OTHER DISTRIBUTION FOR VALUE IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.
WARRANT
TO PURCHASE 12,000 SHARES OF COMMON
STOCK
OF
PW Eagle, Inc.
THIS CERTIFIES THAT, for good and
valuable consideration, Adizes USA (the “Buyer”) is
entitled to subscribe for and purchase from PW Eagle, Inc., a
Minnesota corporation (the “Company”), at any time
after the date hereof up to and including 5:00 p.m. Minneapolis,
Minnesota time on August 1, 2015 (the “Expiration
Date”), Twelve Thousand (12,000) fully paid and nonassessable
shares of the Common Stock of the Company at the price of $0.01 per
share (the “Warrant Exercise Price”), subject to the
antidilution provisions of this Warrant. The shares which may be
acquired upon exercise of this Warrant are referred to herein as
the “Warrant Shares.” As used herein, the term
“Holder” means the Buyer, any party who acquires all or
a part of this Warrant as a registered transferee of the Buyer, or
any record holder or holders of the Warrant Shares issued upon
exercise, whether in whole or in part, of the Warrant. As used
herein, the term “Common Stock” means and includes the
Company’s presently authorized common stock $.01 par value,
and shall also include any capital stock of any class of the
Company hereafter authorized which shall not be limited to a fixed
sum or percentage in respect of the rights of the Holders thereof
to participate in dividends or in the distribution of assets upon
the voluntary or involuntary liquidation, dissolution, or winding
up of the Company.
This Warrant is subject to the
following provisions, terms and conditions:
1. Exercise; Transferability
. Subject to the provisions of Section 3 hereof, the rights
represented by this Warrant may be exercised by the Holder hereof,
in whole or in part (but not as to a fractional share of Common
Stock), by written notice of exercise (in the form attached hereto)
delivered to the Company at the principal office of the Company
prior to the Expiration Date and accompanied or preceded by the
surrender of this Warrant along with a check in payment of the
Warrant Exercise Price for such shares.
2. Exchange and Replacement .
Subject to Sections 1 and 8 hereof, this Warrant is exchangeable
upon the surrender hereof by the Holder to the Company at its
office for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrants to represent the
right to purchase such number of Warrant Shares (not to exceed the
aggregate total number purchasable hereunder) as shall be
designated by the Holder 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 this Warrant, and,
in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon surrender and cancellation
of this Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu of this Warrant; provided,
however, that if the Buyer shall be such Holder, an agreement of
indemnity by such Holder shall be sufficient for all purposes of
this Section 2. This Warrant shall be promptly canceled by the
Company upon the surrender hereof in connection with any exchange
or replacement. The Company shall pay all expenses, taxes (other
than stock transfer taxes), and other charges payable in connection
with the preparation, execution, and delivery of Warrants pursuant
to this Section 2.
3. Issuance of the Warrant
Shares.
(a) The Company agrees that the
shares of Common Stock purchased hereby shall be and are deemed to
be issued to the Holder as of the close of business on the date on
which this Warrant shall have been surrendered for exercise and the
payment made for such Warrant Shares as aforesaid. Subject to the
provisions of the next section, certificates for the Warrant Shares
so purchased shall be delivered to the Holder within a reasonable
time, not exceeding thirty (30) days after the rights represented
by this Warrant shall have been so exercised, and, unless this
Warrant has expired, a new Warrant representing the right to
purchase the number of Warrant Shares, if any, with respect to
which this Warrant shall not then have been exercised shall also be
delivered to the Holder within such time.
(b) Notwithstanding the foregoing,
however, the Company shall not be required to deliver any
certificate for Warrant Shares upon exercise of this Warrant except
in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable
securities laws. Such Holder shall also provide the Company with
written representations from the Holder and the proposed transferee
satisfactory to the Company regarding the transfer or, at the
election of the Company, an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed
transfer of this Warrant or disposition of shares may be effected
without registration or qualification (under any Federal or State
law) of this Warrant or the Warrant Shares. Upon receipt of such
written notice and either such representations or opinion by the
Company, such Holder shall be entitled to transfer this Warrant, or
to exercise this Warrant in accordance with its terms and dispose
of the Warrant Shares, all in accordance with the terms of the
notice delivered by such Holder to the Company, provided that an
appropriate legend, if any, respecting the aforesaid restrictions
on transfer and disposition may be endorsed on this Warrant or the
certificates for the Warrant Shares. Nothing
2
herein, however, shall obligate the Company to
effect registration under federal or state securities laws. The
Holder agrees to execute such documents and make such
representations, warranties, and agreements as may be required
solely to comply with the exemption relied upon by the Company, or
the registration made, for the issuance of the Warrant
Shares.
4. Covenants of the Company .
The Company covenants and agrees that all Warrant Shares will, upon
issuance, be duly authorized and issued, fully paid, nonassessable,
and free from all taxes, liens, and charges with respect to the
issue thereof except for all taxes, liens and charges imposed by
the Holder. The Company further covenants and agrees that during
the period within which the rights represented by this
Warr
