>>TMSR SEC FORM 8K [Filed 02/16/99] ISSUES OF FACTS, Pt VI
"...communications to each
of the Purchasers): Robinson Silverman Pearce Aronsohn &
Berman LLP
1290 Avenue of the Americas
New York, NY 10104
Facsimile: (212) 541-4630
Attention: Kenneth L. Henderson
or such other address as may be designated in writing hereafter, in the
same manner, by such Person.
5.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Purchasers, or, in the case of a
waiver, by the party against whom enforcement of any such waiver is sought.
No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of either party to exercise any right
hereunder in any manner impair the exercise of any such right accruing to it
thereafter.
5.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchasers.
Except as set forth in Section 3.1(a), the Purchasers may not assign this
Agreement or any of the rights or obligations hereunder or under the
Transaction Documents (other than to a Designee of the respective Purchaser)
without the consent of the Company, except that the Purchasers may assign
their respective rights hereunder and, subject to the terms thereof, under
the Transaction Documents without the consent of the Company as long as such
assignee demonstrates to the reasonable satisfaction of the Company its
satisfaction of the representations and warranties set forth in Section 2.2.
5.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
5.8 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without regard to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to the enforcement of the any of
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the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address
in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by law.
5.9 SURVIVAL. The representations, warranties, agreements and
covenants contained herein shall survive the Closings and the issuances of
the Adjustment Shares.
5.10 EXECUTION. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if
such facsimile signature page were an original thereof.
5.11 PUBLICITY. The Company and the Purchasers shall consult with each
other in issuing any press releases or otherwise making public statements or
filings and other communications with the Commission or any regulatory
agency or stock market or trading facility with respect to the transactions
contemplated hereby and neither party shall issue any such press release or
otherwise make any such public statement, filings or other communications
without the prior written consent of the other, which consent shall not be
unreasonably withheld or delayed, except that no prior consent shall be
required if such disclosure is required by law, in which such case the
disclosing party shall provide the other party with prior notice of such
public statement, filing or other communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any of the
Purchasers, or include the name of any of the Purchasers in any filing with
the Commission, or any regulatory agency, trading facility or stock market
without the prior written consent of the respective Purchaser, except to the
extent such disclosure (but not any disclosure as to the controlling Persons
thereof) is required by law or by applicable rules, bylaws or policies of the
NASDAQ, in which case the Company shall provide the respective Purchaser with
prior notice of such disclosure.
5.12 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affecting or impaired thereby and the parties will attempt
to agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
5.13 REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, the
Purchasers will be entitled to specific
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performance of the obligations of the Company under the Transaction
Documents. Each of the Company and the Purchasers agree that monetary
damages may not be adequate compensation for any loss incurred by reason of
any breach of its obligations described in the foregoing sentence and hereby
agrees to waive in any action for specific performance of any such obligation
the defense that a remedy at law would be adequate.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
COMPANY:
THRUSTMASTER, INC.
By:
----------------------------------
Name:
Title:
PURCHASERS:
STRONG RIVER INVESTMENTS, INC.
By:
----------------------------------
Name:
Title:
WESTOVER INVESTMENTS L.P.
By:
----------------------------------
Name:
Title:
MONTROSE INVESTMENTS L.P.
By:
----------------------------------
Name:
Title:
31
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.6
<SEQUENCE>3
<DESCRIPTION>EXHIBIT 4.6
<TEXT>
<PAGE>
EXHIBIT 4.6
EXHIBIT D-1
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES
ARE EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREUNDER AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY
LAWS.
THRUSTMASTER, INC.
CALLABLE WARRANT
Dated: January 28, 1999
ThrustMaster, Inc., an Oregon corporation (the "Company"), hereby
certifies that, for value received, [____________], or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase
from the Company up to a total of [ ](1)shares of Common Stock, no par
value (the "Common Stock"), of the Company (each such share, a "Warrant
Share" and all such shares, the "Warrant Shares") at an exercise price equal
to [$ ](2) (as adjusted from
-------------------------
(1) This Warrant and Warrant D-2 shall be for the purchase of an
aggregate amount of shares of Common Stock equal to 6.25% of (A) $12,000,000,
divided by (B) 132.5% times the closing bid price of the Common Stock on the
Tranche 1 Closing Date.
(2) The Exercise Price for this Warrant shall be equal to 125% of the
closing bid price of the Common Stock on the Tranche 1 Closing Date and the
Exercise Price for Warrant D-2 shall be equal to 140% of the closing bid
price of the Common Stock on the Tranche 1 Closing Date.
1
<PAGE>
time to time pursuant to the terms hereunder, the "Exercise Price"), at any
time and from time to time from and after the date hereof and through and
including January [ ], 2004 (the "Expiration Date"), and subject to the
following terms and conditions:
1. REGISTRATION OF WARRANT. The Company shall register this
Warrant, upon records to be maintained by the Company for that purpose (the
"Warrant Register"), in the name of the record Holder hereof from time to
time. The Company may deem and treat the registered Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, and the Company shall
not be affected by notice to the contrary.
2. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) This is one of the Warrants as defined and issued
pursuant to that certain Securities Purchase Agreement dated as of January
[____], 1999 (the "Purchase Agreement") among the Company, Strong River
Investments, Inc. ("Strong River"), Westover Investments L.P. ("Westover")
and Montrose Investments L.P. ("Montrose"). Neither this Warrant nor any
interest herein may be transferred except in compliance with the provisions
of Section 3.1 of the Purchase Agreement and the provisions hereof. The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Transfer Agent or to the
Company at the office specified in or pursuant to Section 3(b). Upon any
such registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New
Warrant"), evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining portion
of this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance of such transferee of all of the
rights and obligations of a holder of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof
by the Holder to the office of the Company specified in or pursuant to
Section 3(b) for one or more New Warrants, evidencing in the aggregate the
right to purchase the number of Warrant Shares which may then be purchased
hereunder. Any such New Warrant will be dated the date of such exchange.
3. DURATION, EXERCISE AND REDEMPTION OF WARRANTS.
(a) Subject to the terms and conditions of this Warrant, this
Warrant shall be exercisable by the registered Holder on any business day
before 5:30 P.M., New York City time, at any time and from time to time on or
after the date hereof to and including the Expiration Date. At 5:30 P.M.,
New York City time on the Expiration Date, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value..."
2 (WARRANT, cont) |
