UNI-PIXEL, INC. COMMON STOCK PURCHASE WARRANT
EXHIBIT
3
NEITHER
THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS,
AND
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY
BE SOLD OR TRANSFERRED OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A
TRANSACTION NOT SUBJECT TO, REGISTRATION UNDER SAID ACT AND IN COMPLIANCE
WITH
APPLICABLE STATE SECURITIES LAWS.
February
13, 2007
UNI-PIXEL,
INC.
COMMON
STOCK PURCHASE WARRANT
Void
after February 13, 2017
This
WARRANT
(this
“Warrant”)
entitles [applicable Tudor Entity] (including any successors or assigns,
the
“Holder”),
for
value received, to purchase from Uni-Pixel, Inc.,
a
Delaware corporation, at any time and from time to time, subject to the terms
and conditions set forth herein, all or any portion of the Warrant Shares
(as
defined in Section
1
below)
at the Exercise Price (as defined in Section
1
below),
during the period starting from 5:00 a.m. on the Initial Exercise Date (as
defined in Section
1
below)
to 5:00 p.m., Eastern time, on the Expiration Date (as defined in Section
1
below),
at which time this Warrant shall expire and become void. This Warrant is
subject
to the following terms and conditions:
1. Definitions. As
used in this Warrant, the following terms shall have the respective meanings
set
forth below or elsewhere in this Warrant:
“Affiliate”
of
any
Person means
any
other Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person,
as
such terms are used and construed under Rule 144 under the Securities Act
of
1933, as amended (the “Securities
Act”),
including,
without limitation, any other Person that serves as a general partner, managing
member and/or investment adviser or in a similar capacity of such Person
or any
other Person for which such Person serves as a general partner, managing
member
and/or investment adviser or in a similar capacity.
“Board”
means
the Board of Directors of the Company.
“Business
Day”
means
any day except Saturday, Sunday and any day which is a federal legal holiday
or
a day on which banking institutions in the State of New York or Texas are
authorized or required by law or other governmental action to
close.
“Certificate
of Designations”
means
the Certificate of Designations of the Series B Preferred Stock filed on
or
before the Closing (as defined in the Securities Purchase Agreement) by the
Company with the Secretary of State of the State of Delaware, establishing
the
rights, preferences and privileges of the Series B Preferred Stock.
“Common
Stock”
means
the Company’s common stock, par value $0.001 per share (including
any securities into which or for which such shares may be exchanged, or
converted, pursuant to any stock dividend, stock split, stock combination,
recapitalization, reclassification, reorganization or other similar
event).
“Company”
means
Uni-Pixel, Inc., a Delaware corporation.
“Exercise
Price”
means
$1.24 per share of Common Stock, subject to adjustment under the terms of
this
Warrant.
“Expiration
Date”
means
February 13, 2017.
“Fair
Market Value”
on
any
date of determination shall mean (i) if the Common Stock is listed on a national
securities exchange or admitted to quotation on a national automated quotation
system, then the last reported sale price per share of Common Stock on such
exchange or quotation system, as the case may be, on the date immediately
preceding the date of determination or, if no such sale price is reported
on
such date, such price on the next preceding trading day in which such price
was
reported, (ii) if the Common Stock is not listed on a national securities
exchange or quoted on a national automated quotation system, but is actively
traded over-the-counter, then the average of the closing bid and asked prices
over the five (5) trading days ended on the trading day immediately preceding
the date of determination or (iii) if such Common Stock is not traded, quoted
or
listed on any national securities exchange, national automated quotation
system
or the over-the-counter market, then the fair market value of a share of
Common
Stock, as determined in good faith by the Board.
“Holder”
has
the
meaning set forth in the preamble of this Warrant.
“Initial
Exercise Date”
means
February 13, 2007.
“Initial
Public Offering”
means
the closing of the Company’s first public offering of the Company’s Common Stock
registered under the Securities Act.
“Investors’
Rights Agreement”
means
that certain Investors’ Rights Agreement dated February 13, 2007, by and among
the Company, the Holder and the other investors in the Company party thereto.
“Person”
(whether
or not capitalized) means an individual, entity, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, and any government, governmental department or agency or political
subdivision thereof.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Purchase Agreement”
means
that certain Securities Purchase Agreement dated February 13, 2007, by and
among
the Company, the Holder and the other parties thereto.
“Series
B Preferred”
means
the Company’s Series B Preferred Stock, par value $0.001 per share.
“Warrant
Shares”
means
an aggregate of 6,839,279 shares
of
Common Stock,
subject
to adjustments under the terms of this Warrant, issued or issuable upon the
exercise of this Warrant.
2. Exercise
of Warrant.
2.1 Method
of Exercise. Subject
to all of the terms and conditions hereof, this Warrant may be exercised,
in
whole or in part, at any time and from time to time during the period commencing
on the Initial Exercise Date and ending on the Expiration Date. Exercise
shall
be by presentation and surrender to the Company at its principal office,
or to
the transfer agent of the Company, of this Warrant and the Notice and
Subscription form attached hereto as Exhibit
1,
executed by the Holder, which shall indicate the number of Warrant Shares
for
which the Holder intends to exercise this Warrant, together with payment
to the
Company in accordance with Section
3
hereof
in an amount equal to the product of (x) the Exercise Price multiplied by
(y)
the number of Warrant Shares issuable upon such exercise. Upon and as of
receipt
by the Company (or the transfer agent) of such properly completed and duly
executed Notice and Subscription form accompanied by payment as herein provided,
the Holder shall be deemed to be the Holder of record of the Warrant Shares
issuable upon such exercise, notwithstanding that the stock transfer books
of
the Company shall then be closed or that certificates representing such Warrant
Shares shall not then actually be, or have been, delivered to the
Holder.
2.2 Delivery
of Stock Certificates on Exercise.
As soon
as practicable after an exercise of this Warrant, and in any event within
five
(5) Business Days thereafter, the Company, at its expense, and in accordance
with applicable securities laws, shall cause to be issued in the name of
and
delivered to the Holder, or as the Holder may direct (subject in all cases,
to
the provisions of Section
8
hereof),
a certificate or certificates for the number of Warrant Shares issued on
the
date of such exercise, plus, in
lieu
of any fractional share to which the Holder would otherwise be entitled,
an
amount of cash equal to such fraction multiplied by the Fair Market
Value.
2.3 Shares
To Be Fully Paid and Nonassessable.
All
Warrant Shares issued upon an exercise of this Warrant shall be validly issued,
fully paid and nonassessable, free of all liens, taxes, charges and other
encumbrances or restrictions on sale (other than those expressly set forth
herein).
2.4 Fractional
Shares.
No
fractional shares of Common Stock or scrip representing fractional shares
of
Common Stock shall be issued upon the exercise of this Warrant. With respect
to
any fraction of a share of Common Stock otherwise issuable upon any exercise
hereof, the Company shall make a cash payment to the Holder as set forth
in
Section
2.2
hereof.
2.5 Issuance
of New Warrants; Company Acknowledgment.
Upon
any partial exercise of this Warrant, the Company, at its expense, will as
soon
as practicable and, in any event within five (5) Business Days thereafter,
issue
and deliver to the Holder a new Warrant, registered in the name of the Holder,
exercisable, in the aggregate, for the balance of the Warrant Shares and
substantially identical to this Warrant. Moreover, the Company shall, at
the
time of any exercise of this Warrant, upon the request of the Holder,
acknowledge in writing its continuing obligation to afford to the Holder
any
rights to which the Holder shall continue to be entitled after such exercise
in
accordance with the provisions of this Warrant; provided,
however,
that if
the Holder does not make any such request, the continuing obligation of the
Company to afford to the Holder any such rights shall not be
affected.
2.6 Payment
of Taxes and Expenses.
The
Company shall pay any recording, filing, stamp or similar tax which may be
payable in respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable) representing, (i)
any
Warrant Shares issued upon exercise of this Warrant and (ii) new or replacement
Warrants in the Holder’s name or the name of any transferee of all or any
portion of this Warrant; provided,
however,
that any
tax payable as a result of such transfer by the Holder to a transferee shall
be
paid by the Holder.
3. Payment
of Exercise Price.
The
Exercise Price for the Warrant Shares being purchased upon any exercise of
this
Warrant may be paid, at the election of the Holder (i) in cash, by certified
check or by wire transfer to an account designated in writing by the Company,
(ii) by cancellation of indebtedness owing from the Company to the Holder,
(iii)
by the Holder surrendering a number of Warrant Shares having a Fair Market
Value
on the date of exercise equal to, greater than (but only if by a fractional
share) or less than the Exercise Price, in which case the Holder shall receive
the number of Warrant Shares to which it would otherwise be entitled upon
such
exercise, less the surrendered shares, or (iv) any combination of the methods
described in the foregoing clauses (i), (ii) and (iii).
4. Adjustment
of Exercise Price and Number of Warrant Shares.
The
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events as follows:
4.1. Subdivision
or Combination of Stock.
If at
any time or from time to time after the date hereof, the Company shall subdivide
(by way of stock dividend, stock split or otherwise) its outstanding shares
of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
shall be reduced proportionately and the number of Warrant Shares (calculated
to
the nearest whole share) shall be increased proportionately, and conversely,
in
the event the outstanding shares of Common Stock shall be combined (whether
by
stock combination, reverse stock split or otherwise) into a smaller number
of
shares, the Exercise Price in effect immediately prior to such combination
shall
be increased proportionately and the number of Warrant Shares (calculated
to the
nearest whole share) shall be decreased proportionately. The Exercise Price
and
the number of Warrant Shares, as so adjusted, shall be readjusted in the
same
manner upon the happening of any successive event or events described in
this
Section
4.1.
4.2 Adjustment
for Stock Dividends.
If at
any time after the date hereof, the Company shall declare a dividend or make
any
other distribution upon any class or series of capital stock of the Company
payable in shares of Common Stock or other rights or securities convertible
into
or exercisable for shares of Common Stock (other than the payment of dividends
on the Series A Preferred Stock of the Company (the “Series
A Preferred”)
in
accordance with the terms of the Certificate of Designations for the Series
A
Preferred, the Exercise Price and the number of Warrant Shares shall be adjusted
proportionately. The Exercise Price and the number of Warrant Shares, as
so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described in this Section
4.2.
4.3 Adjustments
for Reclassifications. If
the
Common Stock issuable upon exercise of this Warrant shall be changed into,
or
the right to receive, the same or a different number of shares of any other
class(es) or series of stock or other securities or property, whether by
reclassification, reorganization or otherwise (other than an adjustment under
Section
4.1
and
Section
4.2
or a
merger, consolidation, or sale of assets provided for under Section 4.4),
then
and in each such event, the Holder hereof shall have the right thereafter
to
receive upon exercise of this Warrant the kind and amount of shares of stock
and
other securities and property receivable upon such reclassification,
reorganization or other change in respect of a number of shares of Common
Stock
equal to the number of Warrant Shares otherwise issuable upon such exercise
of
this Warrant, all subject to successive adjustments thereafter from time
to time
pursuant to and in accordance with the provisions of this Section
4.
4.4Sale
of Shares Below Exercise Price.
(a) If
at any
time or from time to time after the
Initial
Exercise Date, the Company issues or sells, or is deemed by the express
provisions of this Section 4.4(a)
to have
issued or sold, Additional Shares of Common Stock (as defined below), other
than
as provided in Section
4.1,
Section
4.2
or
Section
4.3,
for an
Effective Price (as defined below) less than the then effective Exercise
Price
(such issuance, a “Qualifying
Dilutive Issuance”),
then
and in each such case, the then existing Exercise Price shall be reduced,
as of
the opening of business on the date immediately after such issue or sale,
to a
price determined by multiplying the Exercise Price in effect immediately
prior
to such issuance or sale by a fraction:
(i) the
numerator of which shall be (x) the number of shares of Common Stock deemed
outstanding (as determined below) immediately prior to such issue or sale,
plus
(y) the
number of shares of Common Stock which the Aggregate Consideration (as defined
below) received or deemed received by the Company for the total number of
Additional Shares of Common Stock so issued would purchase at the then effective
Exercise Price (prior to such adjustment); and
(ii) the
denominator of which shall be the number of shares of Common Stock deemed
outstanding (as determined below) immediately prior to such issue or sale
plus
the total number of Additional Shares of Common Stock so issued.
For
the
purposes of the preceding sentence, the number of shares of Common Stock
deemed
to be outstanding as of a given date shall be the sum of (x) the number of
shares
of
Common Stock outstanding and (y) the number of shares of Common Stock into
which
the then outstanding shares of Series B Preferred could be converted if fully
converted on the day immediately preceding the given date.
(b) No
adjustment shall be made to the Exercise Price in an amount less than one
cent
per share. Any adjustment otherwise required by this Section
4.4
that is
not required to be made due to the preceding sentence shall be included in
any
subsequent adjustment to the Exercise Price.
(c) For
the
purpose of making any adjustment required under this Section
4.4,
the
aggregate consideration received by the Company for any issue or sale of
Additional Shares of Common Stock (the “Aggregate
Consideration”)
shall
be defined as: (i) to the extent it consists of cash, the amount of cash
received by the Company before deduction of any underwriting or similar
commissions, compensation or concessions paid or allowed by the Company in
connection with such issue or sale and without deduction of any expenses
payable
by the Company in connection with such issue or sale, (ii) to the extent
it
consists of property other than cash, the fair market value of that property
as
determined in good faith by the Board (irrespective of accounting treatment),
and (iii) if Additional Shares of Common Stock, Convertible Securities (as
defined below) or rights or options to purchase either Additional Shares
of
Common Stock or Convertible Securities are issued or sold together with other
stock or securities or other assets of the Company for a consideration which
covers both, the portion of the consideration so received that may be reasonably
determined in good faith by the Board to be allocable to such Additional
Shares
of Common Stock, Convertible Securities or rights or options.
(d) For
the
purpose of the adjustment required under this Section
4.4,
if the
Company issues or sells (x) preferred stock or other stock, options, warrants,
purchase rights or other securities convertible into Additional Shares of
Common
Stock (such convertible stock or instruments being herein referred to as
“Convertible
Securities”)
or (y)
rights or options for the purchase of Additional Shares of Common Stock or
Convertible Securities and if the Effective Price (defined below) of such
Additional Shares of Common Stock is less than the then effective Exercise
Price, in each case the Company shall be deemed to have issued at the time
of
the issuance of such rights or options or Convertible Securities the maximum
number of Additional Shares of Common Stock issuable upon exercise or conversion
in full thereof and to have received as consideration for the issuance of
such
shares an amount equal to the total amount of the consideration, if any,
received by the Company for the issuance of such rights or options or
Convertible Securities plus:
(i) in
the
case of such rights or options, the minimum amount of consideration, if any,
payable to the Company
upon the exercise of such rights or options; and
(ii) in
the
case of Convertible Securities, the minimum amount of consideration, if any,
payable to the Company upon the conversion thereof (other than by cancellation
of liabilities or obligations evidenced by such Convertible Securities);
provided,
however,
that if
the minimum amount of such consideration cannot be ascertained, but are a
function of antidilution or similar protective clauses, the Company shall
be
deemed to have received the minimum amount of consideration without reference
to
such clauses.
If
the
minimum amount of consideration payable to the Company upon the exercise
or
conversion of rights, options or Convertible Securities is reduced over time
or
on the occurrence or non-occurrence of specified events other than by reason
of
antidilution adjustments, the Effective Price shall be recalculated using
the
decreased minimum amount of consideration; provided
further, however,
that if
the minimum amount of consideration payable to the Company upon the exercise
or
conversion of such rights, options or Convertible Securities is subsequently
increased (other than by reason of antidilution adjustments), the Effective
Price also shall be recalculated using the increased minimum amount of
consideration.
No
further adjustment of the Exercise Price, as adjusted upon the issuance of
such
rights, options or Convertible Securities, shall be made as a result of the
actual issuance of Additional Shares of Common Stock or the exercise of any
such
rights or options or the conversion of any such Convertible Securities. If
any
such rights or options or the conversion privilege represented by any such
Convertible Securities shall expire or terminate without having been exercised,
the then effective Exercise Price, which was adjusted upon the issuance of
such
rights, options or Convertible Securities, shall be readjusted on the basis of
the Additional Shares of Common Stock, if any, actually issued or sold on
the
exercise of such rights or options or rights of conversion of such Convertible
Securities, the consideration actually received by the Company upon such
exercise (other than by cancellation of liabilities or obligations evidenced
by
such Convertible Securities) and the consideration, if any, actually received
by
the Company upon the original issuance of all such rights or options or
Convertible Securities, whether or not exercised; provided,
however,
that
such readjustment shall not apply to prior exercises of Warrants. No adjustments
made pursuant to this Section
4.4
shall
apply to prior exercises of Warrants.
(e) For
the
purpose of making any adjustment to the Exercise
Price required under this Section
4.4,
“Additional
Shares of Common Stock”
shall
mean all shares of Common Stock issued by the Company or deemed to be issued
pursuant to this Section
4.4
(including shares of Common Stock subsequently reacquired or retired by the
Company), other than:
(i) shares
of
Common Stock issued upon conversion of shares of Series
A
Preferred or Series B Preferred or exercise of any other Convertible Securities
(including the other warrants issued concurrently with the Series B Preferred
under the Securities Purchase Agreement) outstanding as of the Initial Exercise
Date;
(ii) the
payment of dividends on the Series A Preferred in additional shares of Series
A
Preferred in accordance with the terms of the Certificate of Designations
for
the Series A Preferred;
(iii) the
shares of Common Stock (or options thereon) issued after the Initial Exercise
Date to employees, officers or directors of, or consultants or advisors to
the
Company or any subsidiary pursuant to stock purchase or stock option plans
or
other compensatory arrangements which, if required by the Certificate of
Designations, have been approved by the requisite holders of Series B Preferred
(collectively, “Plans”);
provided,
however,
that any
such issuances are approved by the Board;
(iv) shares
of
Common Stock or Convertible Securities issued pursuant to any equipment loan
or
leasing arrangement, real property leasing arrangement or debt financing
from a
bank or similar financial institution approved by the Board;
(v) shares
of
Common Stock or Convertible Securities issued in connection with bona fide
acquisitions, mergers or similar transactions, the terms of which are approved
by the Board; or
(vi) shares
of
Common Stock or Convertible Securities issued to any person as a component
of
any business relationship with such person primarily for (A) joint venture,
technology licensing or development activities purposes, (B) purposes of
distribution, supply or manufacture of the Company’s products or services or (C)
any purposes other than raising capital, the terms of which are approved
by the
Board.
References
to Common Stock in the
subsections of this clause (e) above shall mean all shares of Common Stock
issued by the Company or deemed to be issued pursuant to this Section
4.4.
(f) The
“Effective
Price”
of
Additional Shares of Common Stock shall mean the quotient determined by dividing
the total number of Additional Shares of Common Stock issued or sold, or
deemed
to have been issued or sold by the Company under this Section
4.4,
into
the Aggregate Consideration received, or deemed to have been received, by
the
Company for such issue under this Section
4.4,
for
such Additional Shares of Common Stock. In the event that the number of shares
of Additional Shares of Common Stock or the Effective Price cannot be
ascertained at the time of issuance, such Additional Shares of Common Stock
shall be deemed issued immediately upon the occurrence of the first event
that
makes such number of shares or the Effective Price, as applicable,
determinable.
(g) In
the
event that the Company issues or sells, or is deemed to have issued or sold,
Additional Shares of Common Stock in a Qualifying Dilutive Issuance (the
“First
Dilutive Issuance”)
and
then issues or sells, or is deemed to have issued or sold, Additional Shares
of
Common Stock in additional Qualifying Dilutive Issuances as part of the same
transaction or series of related transactions as the First Dilutive Issuance
(a
“Subsequent
Dilutive Issuance”),
then
and in each such case upon a Subsequent Dilutive Issuance the Exercise Price
shall be reduced to the Exercise Price that would have been in effect had
the
First Dilutive Issuance and each Subsequent Dilutive Issuance all occurred
on
the closing date of the First Dilutive Issuance.
4.5 Adjustments
for Merger or Consolidation. In
the
event that, at any time or from time to time after the date hereof, the Company
shall (a) effect a reorganization, (b) consolidate with or merge into any
other
Person, or (c) sell or transfer all or substantially all of its properties
or
assets or more than fifty percent (50%) of the voting capital stock of the
Company (whether issued and outstanding, newly issued, from treasury, or
any
combination thereof) to any other person under any plan or arrangement
contemplating the consolidation or merger, sale or transfer, or dissolution
of
the Company, then, in each such case, the Holder, upon the exercise of this
Warrant at any time or from time to time after the consummation of such
reorganization, consolidation, merger or sale or the effective date of such
dissolution, as the case may be, shall receive, in lieu of the Warrant Shares
otherwise issuable upon such exercise, the stock and property (including
cash)
to which the Holder would have been entitled upon the consummation of such
consolidation or merger, or sale or transfer, or in connection with such
dissolution, as the case may be, if the Holder had exercised this Warrant
immediately prior thereto (assuming the payment by the Holder of the Exercise
Price therefor as required hereby, which payment shall be included in the
assets
of the Company for the purposes of determining the amount available for
distribution), all subject to successive adjustments thereafter from time
to
time pursuant to, and in accordance with, the provisions of this Section
4.
4.6 Continuation
of Terms.
Upon
any reorganization, consolidation, merger or transfer (and any dissolution
following any such transfer) referred to in this Section
4,
this
Warrant shall continue in full force and effect and the terms hereof shall
be
applicable to the shares of stock and other securities and property to which
the
Holder has a right to receive upon the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or the effective
date of dissolution following any such transfer, as the case may be, and
shall
be binding upon the issuer or owner of any such stock or other securities
and
property, including, in the case of any such transfer, the Person acquiring
all
or substantially all of the properties or assets or more than fifty percent
(50%) of the voting capital stock of the Company (whether issued and
outstanding, newly issued or from treasury or any combination thereof), whether
or not such Person shall have expressly assumed the terms of this
Warrant.
4.7 Certificate
as to Adjustments.
Upon
the occurrence of each event requiring adjustment or readjustment of the
Exercise Price and number of Warrant Shares pursuant to this Section
4,
this
Warrant shall, without any action on the part of the Holder, be adjusted
in
accordance with this Section
4,
and the
Company, at its expense, promptly shall compute such adjustment or readjustment
in accordance with the terms hereof and prepare and furnish to the Holder
a
certificate setting forth such adjustment or readjustment, showing in reasonable
detail the facts and calculations upon which such adjustment or readjustment
is
based. The Company will forthwith send a copy of each such certificate to
the
Holder in accordance with Section
10.4
below.
5. Registration
Rights.
The
Warrant Shares shall be entitled to registration rights and all other rights
as
applicable to such shares in accordance with the Investors’ Rights
Agreement.
6. Notices
of Record Date.
Upon
(a) any establishment by the Company of a record date of the holders of
Common Stock for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or right or option to acquire
securities of the Company, or any other right, or (b) any capital
reorganization, reclassification, recapitalization, merger or consolidation
of
the Company with or into any other corporation, any transfer of all or
substantially all the assets of the Company, or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, or the sale, in a
single
transaction, of more than fifty percent (50%) of the Company’s
voting
capital stock (whether newly issued, or from treasury, or previously issued
and
then outstanding, or any combination thereof), the Company shall mail to
the
Holder at least ten (10) Business Days, or such longer period as may be required
by law, prior to the applicable record date or effective date, a notice
specifying (i) the date established as the record date for the purpose of
such
dividend, distribution, option or right and a description of such dividend,
distribution, option or right, (ii) the date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation
or
winding up, or sale is expected to become effective and (iii) the date, if
any,
fixed as to when the holders of record of Common Stock shall be entitled
to
exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding up.
7. Exchange
of Warrant.
Subject
to the provisions of Section
8
hereof
(if and to the extent applicable), this Warrant shall be exchangeable, upon
the
surrender hereof by the Holder at the principal office of the Company, for
new
Warrants, each registered in the name of the Holder or in the name of such
other
persons as the Holder may direct (upon payment by the Holder of any applicable
transfer taxes). Each of such new Warrants shall be exercisable for such
number
of Warrant Shares as the Holder shall direct; provided,
however,
that
all of such new Warrants shall represent, in the aggregate, the right to
purchase the same number of Warrant Shares and cash, securities or other
property, if any, which may be purchased by the Holder upon exercise of this
Warrant at the time of its surrender and shall otherwise be substantially
identical as this Warrant.
8. Transfer
Provisions, etc.
8.1 Legends.
Each
certificate representing Warrant Shares issued upon exercise of this Warrant
shall bear the following legend:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT
TO AN
AVAILABLE EXEMPTION FROM,
OR IN A
TRANSACTION NOT SUBJECT TO,
REGISTRATION UNDER SAID ACT.”
8.2 Mechanics
of Transfer.
(a) Subject
to compliance with the Investors’ Rights Agreement and the Securities Purchase
Agreement, any transfer of all or any portion of this Warrant, or of any
interest herein, that is otherwise in compliance with applicable law and
the
Securities Purchase Agreement shall be effected by surrendering this Warrant
to
the Company at its principal office, together with a duly executed form of
assignment, in the form attached as Exhibit
2
hereto.
(b) In
the
event of any transfer of all or any portion of this Warrant in accordance
with
Section
8.2(a)
above,
the Company shall issue (i) a new Warrant to the transferee, representing
the
right to purchase the number of Warrant Shares, and cash, securities or other
property, if any, which were purchasable by the Holder of the transferred
portion of this Warrant, and (ii) a new Warrant to the Holder, representing
the
right to purchase the number of Warrant Shares, and cash, securities or other
property, if any, purchasable by the Holder of the balance of this Warrant.
Until this Warrant or any portion thereof is transferred on the books of
the
Company, the Company may treat the Holder as the absolute holder of this
Warrant
and all right, title and interest therein for all purposes, notwithstanding
any
notice to the contrary.
8.3 No
Restrictions on Transfer.
Subject
to compliance with applicable securities laws, the Securities Purchase Agreement
and the Investors’ Rights Agreement (including, but not limited to, the transfer
restrictions in the Investors’ Rights Agreement), this Warrant and any portion
hereof, the Warrant Shares and the rights hereunder may be transferred by
the
Holder in its sole discretion at any time and to any Person or Persons,
including, without limitation, Affiliates and affiliated groups of such Holder,
without the consent of the Company.
8.4 Warrant
Register.
The
Company shall keep at its principal office a register for the registration,
and
registration of transfers, of the Warrants. The name and address of each
Holder
of one or more of the Warrants, each transfer thereof and the name and address
of each transferee of one or more of the Warrants shall be registered in
such
register. The Company shall give to any Holder of a Warrant promptly upon
request therefor, a complete and correct copy of the names and addresses
of all
registered Holders of the Warrants.
9. Lost,
Stolen or Destroyed Warrant.
Upon
receipt by the Company of evidence satisfactory to the Company of loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft
or
destruction, on delivery of a customary affidavit of the Holder and indemnity
agreement, or, in the case of mutilation, upon surrender of this Warrant,
the
Company at its expense will execute and deliver, or will instruct its transfer
agent to execute and deliver, a new Warrant and any such lost, stolen or
destroyed Warrant thereupon shall become void.
10. General.
10.1 Authorized
Shares, Reservation of Shares for Issuance.
At all
times while this Warrant is outstanding, the Company shall maintain its
corporate authority to issue, and shall have authorized and reserved for
issuance upon exercise of this Warrant, such number of shares of Common Stock
and any other capital stock or other securities as shall be necessary to
perform
its obligations under this Warrant, taking into account any and all adjustments
to the Warrant Shares under this Warrant.
10.2 No
Dilution or Impairment.
The
Company will not, by amendment of its Certificate of Incorporation or Bylaws
or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issuance or sale of securities, sale or other transfer of any
of
its assets or properties, 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 terms and
in the
taking of all such action as may be necessary or appropriate in order to
protect
the rights of the Holder hereunder against dilution or other impairment.
Without
limiting the generality of the foregoing, the Company (a) will not increase
the
par value of any shares of Common Stock issuable upon the exercise of this
Warrant above the amount payable therefor on such exercise, and (b) will
take
all action that may be necessary or appropriate in order that the Company
may
validly and legally issue fully paid and nonassessable shares of Common Stock
(and any other capital stock or other securities) upon the exercise of this
Warrant.
10.3 No
Rights as Stockholder.
The
Holder shall not be entitled to vote or to receive dividends or to be deemed
the
holder of the shares of Common Stock that may at any time be issuable upon
exercise of this Warrant for any purpose whatsoever, nor shall anything
contained herein be construed to confer upon the Holder any of the rights
of a
stockholder of the Company or any right to vote for the election of directors
or
upon any matter submitted to stockholders at any meeting thereof, or to give
or
withhold consent to any corporate action (whether upon any recapitalization,
issuance or reclassification of stock, change of par value or change of stock
to
no par value, consolidation, merger or conveyance or otherwise), or to receive
notice of meetings (except to the extent otherwise provided in this Warrant),
or
to receive dividends or subscription rights, until the Holder shall have
exercised this Warrant and been issued Warrant Shares or other securities
in
accordance with the provisions hereof.
10.4 Notices. All
notices, requests, consents and other communications (hereinafter collectively
referred to as “correspondence”) required or permitted to be given hereunder
shall be given in writing and shall be deemed given if sent by certified
or
registered mail (return receipt requested), overnight courier or telecopy
(with
confirmation of receipt), or delivered by hand to the party to whom such
correspondence is required or permitted to be given hereunder. An electronic
communication (“Electronic
Notice”)
shall
be deemed written notice for purposes of this Section
10.4
if sent
with return receipt requested to the electronic mail address specified by
the
receiving party in this Section
10.4.
Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party.
All
correspondence shall be addressed as follows:
(a)
if to
the Company at:
Uni-Pixel,
Inc.
0000 Xxxxxxxxxx
Xxxxxx Xxxxx
Suite
100
The
Woodlands, Texas 77381
Attention:
Xxxxx Xxxxxxx, President
Facsimile:
(000) 000-0000
Email:
xxxxxxxx@xxxxxxxx.xxx
with
copies to:
Xxxxx,
Xxxxxx, Xxxxxxxx, Xxxxxxxxx, Xxxxxxx & Xxxxxxx, L.L.P.
Four
United Plaza
0000
Xxxxxx Xxxxx Xxxxxxxxx
Baton
Rouge, LA 70809
Attention:
Xxxxx X. Xxxxxxxxx, Esq.
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxx@xxxxxxxxxxx.xxx
(b)
if to
the Holder, at the Holder’s address appearing in the books maintained by the
Company.
11. Amendment
and Waiver.
No
failure or delay of the Holder in exercising any power or right hereunder
shall
operate as a waiver thereof, nor shall any single or partial exercise of
any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
the
exercise of any other right or power. The rights and remedies of the Holder
are
cumulative and not exclusive of any rights or remedies which it would otherwise
have. The terms of this Warrant may be amended, modified or waived only with
the
written consent of the Company and the Holder.
12. Governing
Law.
This
Warrant shall be governed by and construed in accordance with the laws of
the
State of Delaware, as such laws are applied to contracts entered into and
wholly
to be performed within the State of Delaware and without giving effect to
any
principles of conflicts or choice of law that would result in the application
of
the laws of any other jurisdiction.
13. Covenants
To Bind Successor and Assigns.
All
covenants, stipulations, promises and agreements in this Warrant contained
by or
on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
14. Severability.
In case
any one or more of the provisions contained in this Warrant shall be held
invalid, illegal or unenforceable in any respect, the validity, legality
and
enforceability of the remaining provisions contained herein shall not in
any way
be affected or impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable provisions
with
valid provisions the economic effect of which comes as close as possible
to that
of the invalid, illegal or unenforceable provisions.
15. Construction.
The
definitions of this Warrant shall apply equally to both the singular and
the
plural forms of the terms defined. Wherever the context may require, any
pronoun
shall include the corresponding masculine, feminine and neuter forms. The
section and paragraph headings used herein are for convenience of reference
only, are not part of this Warrant and are not to affect the construction
of or
be taken into consideration in interpreting this Warrant.
16. Remedies.
The
Holder, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of
its
rights under this Warrant. The Company agrees that monetary damages would
not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Warrant and hereby agrees to waive the defense in any
action
for specific performance that a remedy at law would be adequate. In any action
or proceeding brought to enforce any provision of this Warrant or where any
provision hereof is validly asserted as a defense, the successful party to
such
action or proceeding shall be entitled to recover reasonable attorneys’ fees in
addition to any other available remedy.
[The
remainder of this page is left intentionally blank.]
Warrant
V4.doc1
IN
WITNESS WHEREOF,
the
Company has executed this Common Stock Purchase Warrant as of the date set
forth
above.
NOTICE
AND
SUBSCRIPTION
To: Uni-Pixel,
Inc. Date:
0000 Xxxxxxxxxx
Xxxxxx Xxxxx
Suite
100
The
Woodlands, Texas 77381
The
undersigned hereby irrevocably elects to exercise the right of purchase
represented by the attached Warrant for, and to exercise thereunder, __________
shares of Common Stock of Uni-Pixel,
Inc.,
a
Delaware corporation, and tenders herewith payment of $__________, representing
the aggregate purchase price for such shares based on the price per share
provided for in such Warrant. Such payment is being made in accordance with
[Section 3(i)] [Section 3(ii)] [Section 3(iii)] [Section 3(iv)] of the attached
Warrant.
Please
issue a certificate or certificates for such shares of Common Stock in the
following name or names and denominations and deliver such certificate or
certificates to the person or persons listed below at their respective addresses
set forth below:
If
said
number of shares of Common Stock shall not be all the shares of Common Stock
issuable upon exercise of the attached Warrant, a new Warrant is to be issued
in
the name of the undersigned for the balance remaining of such shares of Common
Stock less any fraction of a share of Common Stock paid in cash.
Dated: ___________,
____ _________________________________
Signature
Warrant
V4.doc
FORM
OF ASSIGNMENT
For
value
received, __________________________________ hereby sells, assigns and transfers
unto __________________ the attached Warrant [a portion of the attached Warrant
representing the right to purchase _____, of the total____, shares of Common
Stock issuable upon exercise of this Warrant, together with all right, title
and
interest therein, and does hereby irrevocably constitute and appoint
____________________ attorney to transfer said Warrant [said portion of said
Warrant] on the books of Uni-Pixel, Inc., a Delaware corporation, with full
power of substitution in the premises.
If
only a
portion of the attached Warrant is to be so transferred, a new Warrant is
to be
issued in the name of the undersigned for the balance of said
Warrant.
The
undersigned hereby agrees that it will not sell, assign, or transfer the
right,
title and interest in and to the Warrant unless applicable federal and state
securities laws have been complied with.
Dated: _____________,
____
Signature
