Attached files
file | filename |
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8-K - Cyalume Technologies Holdings, Inc. | v192170_8k.htm |
EX-10.3 - Cyalume Technologies Holdings, Inc. | v192170_ex10-3.htm |
EX-10.5 - Cyalume Technologies Holdings, Inc. | v192170_ex10-5.htm |
EX-10.2 - Cyalume Technologies Holdings, Inc. | v192170_ex10-2.htm |
EX-10.1 - Cyalume Technologies Holdings, Inc. | v192170_ex10-1.htm |
EX-10.8 - Cyalume Technologies Holdings, Inc. | v192170_ex10-8.htm |
EX-10.9 - Cyalume Technologies Holdings, Inc. | v192170_ex10-9.htm |
EX-10.7 - Cyalume Technologies Holdings, Inc. | v192170_ex10-7.htm |
EX-10.4 - Cyalume Technologies Holdings, Inc. | v192170_ex10-4.htm |
EX-99.1 - Cyalume Technologies Holdings, Inc. | v192170_ex99-1.htm |
EX-10.10 - Cyalume Technologies Holdings, Inc. | v192170_ex10-10.htm |
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL
(i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "
1933
ACT") SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR
(ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE 1933 ACT
IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS SUCH TRANSFER
IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT OR ANY SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT.
WARRANT
TO PURCHASE COMMON STOCK
OF
CYALUME
TECHNOLOGIES HOLDINGS, INC.
__________
This
is to Certify That, FOR VALUE RECEIVED, Granite Creek FlexCap I, L.P., or its
assigns ("Holder"),
is entitled to purchase, subject to the provisions of this Warrant, from Cyalume
Technologies Holdings, Inc., a Delaware corporation (the "Company"),
94,118 shares of fully paid, validly issued and nonassessable shares of the
common stock of the Company ("Common
Stock") at a price of $2.00 per share. The number of shares of Common
Stock to be received upon the exercise of this Warrant and the price to be paid
for each share of Common Stock may be adjusted from time to time as hereinafter
set forth. The shares of Common Stock deliverable upon such exercise, and as
adjusted from time to time, are hereinafter sometimes referred to as "Warrant
Shares" and the exercise price of a share Common Stock in effect at any
time and as adjusted from time to time is hereinafter sometimes referred to as
the "Exercise
Price."
(a) EXERCISE OF
WARRANT.
(1) This
Warrant may be exercised in whole or in part at any time or from time to time
from the date hereof up to and including July ___, 2015 (the "Exercise
Period"); provided, however, that (i) if either such day is a day on
which banking institutions in the State of New York are authorized by law to
close, then on the next succeeding day which shall not be such a day, and (ii)
in the event of any merger, consolidation or sale of substantially all the
assets of the Company as an entirety, resulting in any distribution to the
Company's stockholders, prior to termination of the Exercise Period, the Holder
shall have the right to exercise this Warrant commencing at such time through
the termination of the Exercise Period into the kind and amount of shares of
stock and other securities and property (including cash) receivable by a holder
of the number of shares of Common Stock into which this Warrant might have been
exercisable immediately prior thereto. This Warrant may be exercised by
presentation and surrender hereof to the Company at its principal office with
the Purchase Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of Warrant Shares specified in such form. As soon
as practicable after each such exercise of this Warrant, but not later than
seven (7) days following the receipt of good and available funds, the Company
shall issue and deliver to the Holder a certificate or certificates for the
Warrant Shares issuable upon such exercise, registered in the name of the Holder
or its designee. If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the Warrant Shares purchasable hereunder. As of the end of business on the
date of receipt by the Company of this Warrant at its office in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares shall not then be physically delivered to the
Holder.
(2) At
any time during the Exercise Period, the Holder may, at its option, exercise
this Warrant on a cashless basis by exchanging this Warrant, in whole or in part
(a "Warrant
Exchange"), into the number of Warrant Shares determined in accordance
with this Section (a)(2), by surrendering this Warrant at the principal office
of the Company or at the office of its stock transfer agent, accompanied by a
notice stating such Holder's intent to effect such exchange, the number of
Warrant Shares to be exchanged and the date on which the Holder requests that
such Warrant Exchange occur (the "Notice of
Exchange"). The Warrant Exchange shall take place on the date specified
in the Notice of Exchange or, if later, the date the Notice of Exchange is
received by the Company (the "Exchange
Date"). Certificates for the shares issuable upon such Warrant Exchange
and, if this Warrant should be exercised in part only, a new Warrant evidencing
the rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable hereunder, shall be issued as of the Exchange Date and delivered to
the Holder within seven (7) days following the Exchange Date. In connection with
any Warrant Exchange, this Warrant shall represent the right to subscribe for
and acquire the number of Warrant Shares equal to (i) the number of Warrant
Shares specified by the Holder in its Notice of Exchange (the "Total
Number") less (ii) the number of Warrant Shares equal to the quotient
obtained by dividing (A) the product of the Total Number and the existing
Exercise Price by (B) Fair Market Value of a share of Common Stock. "Fair Market
Value" shall equal the 5 trading day average closing trading price of the
Common Stock on the relevant market or exchange for the 5 trading days preceding
the date of determination or, if the Common Stock is not listed or admitted to
trading on any market or exchange, and the average price cannot be determined as
contemplated above, the Fair Market Value of the Common Stock shall be as
reasonably determined in good faith by the Company's Board of Directors with the
concurrence of the Holder.
(b) REPRESENTATIONS
OF HOLDER. The Holder (i) is an
“accredited investor,” as defined in Rule 501 promulgated under the Securities
Act of 1933, as amended (the “1933 Act”), (ii) understands the risks of, and
other considerations relating to, a purchase of this Warrant, (iii) understands
that the Warrants and/or the Warrant Shares may not be sold, transferred,
hypothecated or pledged, except pursuant to an effective registration statement
under the 1933 Act and under any applicable state securities law, or pursuant to
an available exemption from the registration requirements of the 1933 Act and
any applicable state securities laws, in all cases established to the
satisfaction of the Company, and (v) the Holder has been given the opportunity
to obtain such additional information that it believes is
necessary.
(c) RESERVATION
OF SHARES. The Company shall at all times reserve for issuance
and/or delivery upon exercise of the this Warrant such number of shares of
Common Stock as shall be required for issuance and delivery upon exercise of
this Warrant.
(d) FRACTIONAL
SHARES. No fractional shares or strips representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to any
fraction of a share called for upon any exercise hereof, the Company shall pay
to the Holder an amount in cash equal to such fraction multiplied by the Fair
Market Value of a share of Common Stock.
(e) LOSS OR
DESTRUCTION OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(f) RIGHTS OF
THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth
herein.
(g) ANTI-DILUTION
PROVISIONS. In case the Company shall hereafter (i) declare a dividend or
make a distribution on its outstanding Common Stock in shares of Common Stock,
(ii) subdivide or reclassify its outstanding Common Stock into a greater number
of shares, or (iii) combine or reclassify its outstanding Common Stock into a
smaller number of shares, the Exercise Price in effect at the time of the record
date for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that it shall
equal the price determined by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such action, and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such action.
The number of shares of Common Stock that the Holder shall thereafter, on the
exercise hereof, be entitled to receive shall be adjusted to a number determined
by multiplying the number of shares of Common Stock that would otherwise (but
for the provisions of this Section (f)) be issuable on such exercise by a
fraction of which (a) the numerator is the Exercise Price that would otherwise
(but for the provisions of this Section (f)) be in effect, and (b) the
denominator is the Exercise Price in effect on the date of such exercise (taking
into account the provisions of this Section (f)). Notwithstanding the foregoing,
in no event shall the Exercise Price be less than the par value of the Common
Stock. Adjustment pursuant to this Section shall be made successively whenever
any event listed above shall occur.
(h) NOTICES TO
WARRANT HOLDERS. So long as this Warrant shall be outstanding, (i) if the
Company shall pay any dividend or make any distribution upon the Common Stock or
(ii) if the Company shall offer to the holders of Common Stock for subscription
or purchase by them any share of any class or any other rights or (iii) if any
capital reorganization of the Company, reclassification of the capital stock of
the Company, consolidation or merger of the Company with or into another
corporation, sale, lease or transfer of all or substantially all of the property
and assets of the Company to another corporation, or voluntary or involuntary
dissolution, liquidation or winding up of the Company shall be effected, then in
any such case, the Company shall cause to be mailed to the Holder, at least
fifteen days prior the date specified in (x) or (y) below, as the case may be, a
notice containing a brief description of the proposed action and stating the
date on which (x) a record is to be taken for the purpose of such dividend,
distribution or rights, or (y) such reclassification, reorganization,
consolidation, merger, conveyance, lease, dissolution, liquidation or winding up
is to take place and the date, if any is to be fixed, as of which the holders of
Common Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
(i) RECLASSIFICATION,
REORGANIZATION OR MERGER. In case of any reclassification, capital
reorganization or other change of outstanding Common Stock of the company, or in
case of any consolidation or merger of the Company with or into another
corporation (other than a merger with a subsidiary in which merger the Company
is the continuing corporation and which does not result in any reclassification,
capital reorganization or other change of outstanding Common Stock of the class
issuable upon exercise of this Warrant) or in case of any sale, lease or
conveyance to another corporation of the property of the Company as an entirety,
the Company shall, as a condition precedent to such transaction, cause effective
provisions to be made so that the Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of the Warrant, to
purchase the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, capital reorganization and other
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock that might have been purchased upon exercise of this
Warrant immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section (h) shall similarly apply to successive reclassifications, capital
reorganizations and changes of Common Stock and to successive consolidations,
mergers, sales or conveyances. In the event that in connection with any such
capital reorganization or reclassification, consolidation, merger, sale or
conveyance, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of Section (f)
hereof.
(j) NO NET-CASH
SETTLEMENT. In no event will the Holder be entitled to receive
a net-cash settlement or other consideration in lieu of physical settlement in
securities.
(k) MODIFICATION
OF AGREEMENT. The provisions of this Warrant may from time to
time be amended, modified or waived, by the Company and the holder of this
Warrant.
(l) TRANSFER OF
WARRANT. This
Warrant shall inure to the benefit of the successors to and assigns of the
Holder; provided,
however,
this Warrant may not be pledged, sold, assigned or otherwise transferred,
directly or indirectly, by operation of law, change of control, or otherwise,
without the prior written consent of the Company, except to an affiliate of the
Holder. This Warrant and all rights hereunder are registrable at the
office or agency of the Company referred to below by the Holder in person or by
its duly authorized attorney, upon surrender of this Warrant properly endorsed
accompanied by an assignment form in a form approved by the Company, duly
executed by the transferring Holder and the transferee.
(m) REGISTER OF
WARRANTS. The
Company shall maintain, at the principal office of the Company (or such other
office as it may designate by notice to the Holder), a register in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each successor and
prior owner of such Warrant. The Company shall be entitled to treat
the Person in whose name this Warrant is so registered as the sole and absolute
owner of this Warrant for all purposes.
(n) WARRANT
AGENT. The
Company may, by written notice to the Holder, appoint the transfer agent and
registrar for the Common Stock as the Company’s agent for the purpose of issuing
Common Stock (or other securities) on the exercise of this Warrant pursuant to
paragraph(a), and the Company may, by written notice to the Holder, appoint an
agent having an office in the United States of America for the purpose of
replacing this Warrant pursuant to paragraph (d), or any of the foregoing,
and thereafter any such replacement shall be made at such office by such
agent.
(o) NOTICES,
ETC. All
notices and other communications from the Company to the Holder shall be mailed
by first class certified mail, postage prepaid, at such address as may have been
furnished to the Company in writing by the Holder or at the address shown for
the Holder on the register of Warrants referred to in paragraph
(l).
(p) REGISTRATION
RIGHTS. The
Holder and the Company are parties to a Registration Rights Agreement of even
date herewith.
[Signatures
appear on the following page.]
IN
WITNESS WHEREOF, the parties hereto have executed this Warrant on the _____ day
of July, 2010.
HOLDER:
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GRANITE
CREEK FLEXCAP I, L.P., a Delaware limited
partnership
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By:
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Granite Creek GP FlexCap I, L.L.C., | ||
Its: | General Partner | ||
By:
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Name: | |||
Title: |
COMPANY:
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CYALUME TECHNOLOGIES HOLDINGS, INC. | |||
By:
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Name: | |||
Title: |
PURCHASE
FORM
(1)
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The
undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing shares of Common Stock of Cyalume Technologies
Holdings, Inc. (or such number of shares of Common Stock or other
securities or property to which the undersigned is entitled in lieu
thereof or in addition thereto under the provisions of the
Warrant).
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(2) The
undersigned hereby elects to make payment (Please check one):
___ on
a cashless basis pursuapnt to the provisions of Section (a)(2) of the
Warrant.
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___
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with
the enclosed bank draft, certified check or money order payable to the
Company in payment of the exercise price determined under, and on the
terms specified in, the Warrant.
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(3)
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The
undersigned hereby irrevocably directs that the said shares be issued and
delivered as follows:
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Name(s) in
Full
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Address(es)
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Number of
Shares
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S.S. or IRS
#
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(4) If
the Warrant was not exercised in full, please check the following:
The
undersigned hereby irrevocably directs that any remaining portion of the warrant
be issued and delivered as follows:
Name(s) in
Full
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Address(es)
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Number of
Shares
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S.S. or IRS
#
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Signature
of Holder
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Print
Name
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