>>TMSR SEC FORM 8K [Filed 02/16/99] ISSUES OF FACTS, Pt VIII
"...new warrant agent shall be a party or any corporation to which the Company or
any new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall
promptly cause notice of its succession as warrant agent to be mailed (by
first class mail, postage prepaid) to the Holder at the Holder's last address
as shown on the Warrant Register.
14. MISCELLANEOUS.
(a) This Warrant shall be binding on and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
This Warrant may be amended only in writing signed by the Company and the
Holder and their successors and assigns.
(b) Subject to Section 14(a), above, nothing in this Warrant
shall be construed to give to any person or corporation other than the
Company and the Holder any legal or equitable right, remedy or cause under
this Warrant. This Warrant shall inure to the sole and exclusive benefit of
the Company and the Holder.
(c) This Warrant 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.
(d) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect
any of the provisions hereof.
(e) In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall
not in any way be affected or impaired thereby and the parties will attempt
in good faith to agree upon a valid and enforceable provision which shall be
a commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
(f) This Warrant shall terminate and be of no further force
and effect on the earlier of 5:00 p.m. (New York time) on the Expiration Date
or the date on which the Warrant has been exercised in full, except that the
provisions of Sections 6 and 8 shall maintain in full force and effect after
such termination date.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
THRUSTMASTER, INC.
By:
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Name:
--------------------------------
Title:
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FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares
of Common Stock under the foregoing Warrant)
To ThrustMaster, Inc.:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase
_____________ shares of Common Stock ("Common Stock"), no par value, of
ThrustMaster, Inc. and , if such Holder is not utilizing the cashless
exercise provisions set forth in this Warrant, encloses herewith $________ in
cash, certified or official bank check or checks, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares
of Common Stock to which this Form of Election to Purchase relates, together
with any applicable taxes payable by the undersigned pursuant to the Warrant.
[The undersigned elects that this Warrant be exercised in accordance with
Section 10(b) thereof.]
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY
OR
TAX IDENTIFICATION NUMBER
-------------------------------------
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(Please print name and address)
If the number of shares of Common Stock issuable upon this exercise
shall not be all of the shares of Common Stock which the undersigned is
entitled to purchase in accordance with the enclosed Warrant, the undersigned
requests that a New Warrant (as defined in the Warrant) evidencing the right
to purchase the shares of Common Stock not issuable pursuant to the exercise
evidenced hereby be issued in the name of and delivered to:
------------------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------------------
Dated: , Name of Holder:
-------------- ----
(Print)
-----------------------------------
(By:)
-------------------------------------
(Name:)
(Title:)
(Signature must conform in all respects
to name of holder as specified on the face of
the Warrant)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of ThrustMaster,
Inc. to which the within Warrant relates and appoints ________________
attorney to transfer said right on the books of ThrustMaster, Inc. with full
power of substitution in the premises. The undersigned hereby certifies that
it has fully complied with Section 2 of the Warrant and Section 3.1 of the
Purchase Agreement with respect to this transfer and assignment.
Dated:
,
--------------- ----
---------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of the
Warrant)
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Address of Transferee
---------------------------------------------
---------------------------------------------
In the presence of:
--------------------------------
EX-4.7
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EXHIBIT 4.7
EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 28, 1999, among ThrustMaster, Inc., an Oregon
corporation (the "COMPANY"), Strong River Investment Inc. ("STRONG RIVER"),
a corporation organized under the laws of the British Virgin Islands,
Westover Investments L.P. ("WESTOVER"), a Delaware limited partnership, and
Montrose Investments L.P. ("MONTROSE"), a Cayman Islands exempt limited
partnership. Strong River, Westover and Montrose are each referred to herein
as a "PURCHASER" and are collectively referred to herein as the "PURCHASERS".
This Agreement is made pursuant to the Common Stock Purchase Agreement,
dated as of the date hereof, among the Company and the Purchasers (the
"PURCHASE AGREEMENT").
The Company and the Purchasers hereby agree as follows:
1. DEFINITIONS
Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in
the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
"ADVICE" shall have meaning set forth in Section 3(o).
"AFFILIATE" means, with respect to any Person, any other Person
that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition, "CONTROL,"
when used with respect to any Person, means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities,
by contract or otherwise; and the terms of "AFFILIATED," "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"BUSINESS DAY" means any day except Saturday, Sunday and any day
which shall be a legal holiday or a day on which banking institutions in the
state of New York or Oregon generally are authorized or required by law or
other government actions to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Company's common stock, no par value.
"EFFECTIVENESS DATE" means (i) with respect to the Registration
Statement to be filed with respect to the Tranche 1 Shares, the First Tranche
1 Warrant Shares, the Second
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Tranche 1 Warrant Shares, the First Tranche 1 Adjustment Shares and the
Second Tranche 1 Adjustment Shares, the 90th day following the Tranche 1
Closing Date, (ii) with respect to the Registration Statement to be filed
with respect to the Tranche 2 Shares, the First Tranche 2 Adjustment Shares
and the Second Tranche 2 Adjustment Shares, the 90th day following the
Tranche 2 Closing Date and (iii) with respect to the Registration Statement
to be filed with respect to the Tranche 3 Shares, the First Tranche 3 Warrant
Shares, the Second Tranche 3 Warrant Shares, the First Tranche 3 Adjustment
Shares and the Second Tranche 3 Adjustment Shares, the 90th day following the
Tranche 3 Closing Date.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FILING DATE" means (i) with respect to the Registration Statement
to be filed with respect to the Tranche 1 Shares, the First Tranche 1 Warrant
Shares, the Second Tranche 1 Warrant Shares, the First Tranche 1 Adjustment
Shares and the Second Tranche 1 Adjustment Shares, the 35th day following the
Tranche 1 Closing Date, (ii) with respect to the Registration Statement to be
filed with respect to the Tranche 2 Shares, the First Tranche 2 Adjustment
Shares and the Second Tranche 2 Adjustment Shares, the 35th day following the
Tranche 2 Closing Date and (iii) with respect to the Registration Statement
to be filed with respect to the Tranche 3 Shares, the First Tranche 3 Warrant
Shares, the Second Tranche 3 Warrant Shares, the First Tranche 3 Adjustment
Shares and the Second Tranche 3 Adjustment Shares, the 35th day following the
Tranche 3 Closing Date.
"HOLDER" or "HOLDERS" means the holder or holders, as the case may
be, from time to time of Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
5(c).
"LOSSES" shall have the meaning set forth in Section 5(a).
"MAXIMUM PURCHASE PRICE" shall have the meaning set forth in
Section 2(d).
"PER SHARE MARKET VALUE" means on any particular date (a) the
closing bid price per share of the Common Stock on such date on the Nasdaq
National Market or on any other stock market or trading facility on which the
shares of Common Stock are primarily traded, listed or quoted (each a
"SUBSEQUENT MARKET"), or if there is no such price on such date, then the
closing bid price on the Nasdaq National Market or on such Subsequent Market
on the date nearest preceding such date, or (b) if the Common Stock is not
then listed or quoted on the Nasdaq National Market or a Subsequent Market,
the closing bid price for a share of Common Stock in the over-the-counter
market, as reported by the National Quotation Bureau Incorporated or
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similar organization or agency succeeding to its functions of reporting
prices) at the close of business on such date, or (c) if the Common Stock is
not then reported by the National Quotation Bureau Incorporated (or similar
organization or agency succeeding to its functions of reporting prices), then
the average of the "Pink Sheet" quotes for the relevant conversion period, as
determined in good faith by the Holder, or (d) if the Common Stock is not
then publicly traded the fair market value of a share of Common Stock as
determined by an appraiser selected in good faith by the Holders of a
majority of the applicable Registrable Securities.
"PERSON" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included a Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
"REGISTRATION DELAY PAYMENTS" shall have the meaning set forth in
Section 2(d).
"REGISTRABLE SECURITIES" means (a) with respect to the Registration
Statement to be filed after the Tranche 1 Closing, (i) the Tranche 1 Shares,
(ii) the shares of Common Stock issuable upon exercise of the First Tranche 1
Warrants and the Second Tranche 1 Warrants and (iii) the First Tranche 1
Adjustment Shares and the Second Tranche 1 Adjustment Shares, (b) with
respect to the Registration Statement to be filed after the Tranche 2
Closing, if applicable, (i) the Tranche 2 Shares and (ii) the First Tranche 2
Adjustment Shares and the Second Tranche 2 Adjustment Shares and (c) with
respect to the Registration Statement to be filed after the Tranche 3
Closing, if applicable, (i) the Tranche 3 Shares, (ii) the shares of Common
Stock issuable upon exercise of the First Tranche 3 Warrants and the Second
Tranche 3 Warrants and (iii) the First Tranche 3 Adjustment Shares and the
Second Tranche 3 Adjustment Shares; PROVIDED, HOWEVER that in order to
account for the fact that the number of Adjustment Shares that are issuable
pursuant to the Purchase Agreement is determined in part upon the Per Share
Market Value of the Common Stock at the time of issuance, Registrable
Securities, shall include (but not be limited to), in the case of each of (1)
(a)(iii) above, such number of Adjustment Shares which may be issued to the
Purchasers pursuant to the Purchase Agreement on the First Tranche 1
Adjustment Date and the Second Tranche 1 Adjustment Date, respectively,
assuming, for the purposes of this definition, that the First Tranche 1
Adjustment Price and the Second Tranche 1 Adjustment Price
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is 50% of the Per Share Market Value on the trading day immediately preceding
the Tranche 1 Closing Date, (2) (b)(ii) above, such number of Adjustment
Shares which may be issued to the Purchasers pursuant to the Purchase
Agreement on the First Tranche 2 Adjustment Date and the Second Tranche 2
Adjustment Date, respectively, assuming, for the purposes of this definition,
that the First Tranche 2 Adjustment Price and the Second Tranche 2 Adjustment
Price is 50% of the Per Share Market Value on the trading day immediately
preceding the Tranche 2 Closing Date and (3) (c)(iii) above, such number of
Adjustment Shares which may be issued to the Purchasers pursuant to the
Purchase Agreement on the First Tranche 3 Adjustment Date and the Second
Tranche 3 Adjustment Date, respectively, assuming, for the purposes of this
definition, that the First Tranche 3 Adjustment Price and the Second Tranche
3 Adjustment Date is 50% of the Per Share Market Value on the trading day
immediately preceding the Tranche 3 Closing Date. The Company shall be
required to file additional Registration Statements to the extent the sum of
the shares of Common Stock issuable as Adjustment Shares in connection with
the Tranche 1 Closing, the Tranche 2 Closing or the Tranche 3 Closing, as
applicable, exceeds the number of shares initially registered in accordance
with the proviso in the immediatel prior sentence. The Company shall have
twenty-five (25) days to file such additional Registration Statements after
notice of the requirement thereof, which the Holders may give at such time
when the number of shares of Common Stock referenced in the preceding
sentence exceeds 85% of the number of shares of Common Stock then registered
in a Registration Statement hereunder. Notwithstanding the foregoing, shares
of Common Stock shall no longer be treated as Registrable Securities when (x)
a registration statement covering such Registrable Securities has been
declared effective and such Registrable Securities have been disposed of
pursuant to such effective registration statement, (y) such Registrable
Securities are sold or otherwise transferred by a person or entity in a
transaction in which the rights under this Agreement are not assigned in
accordance with Section 6(h) or (z) the Holder of such Registrable Securities
is able to dispose of all Registrable Securities held by such Holder in one
three-month period pursuant to Rule 144(k) (or any similar provision then in
force) under the Securities Act without registration under the Securities Act.
"REGISTRATION STATEMENTS" means the registration statements and any
additional registration statements contemplated by Section 2(a), including
(in each case) the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference
or deemed to be incorporated by reference in such registration statements.
"RULE 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SHARES" means the shares of Common Stock issued to and/or to be
issued to the Purchaser on the Tranche 1 Closing Date, the Tranche 2 Closing
Date and the Tranche 3 Closing Date, pursuant to the Purchase Agreement.
"SPECIAL COUNSEL" means one special counsel to all Holders of
Registrable Securities, for which the Holders will be reimbursed by the
Company pursuant to Section 4.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" means a
registration in connection with which securities of the Company are sold to
an underwriter for reoffering to the public pursuant to an effective
registration statement.
"WARRANTS" means the Common Stock purchase warrants issued or
issuable to the Purchaser pursuant to the Purchase Agreement.
"WARRANT SHARES" means the shares of Common Stock issuable upon
exercise in full of the Warrants.
2. SHELF REGISTRATION
(a) On or prior to each applicable Filing Date, the Company shall
prepare and file with the Commission a "Shelf" Registration Statement
covering such Registrable Securities applicable to the Tranche 1 Closing, the
Tranche 2 Closing or the Tranche 3 Closing, as the case may be, for an
offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3,
in which case such registration shall be on another appropriate form in
accordance herewith). The Company shall use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event prior to the
applicable Effectiveness Date, and shall use its best efforts to keep such
Registration Statement continuously effective under the Securities Act until
the date which is three years after the date that such Registration Statement
is declared effective by the Commission or such earlier date when all
Registrable Securities covered by such Registration Statement have been sold
or may be sold without volume restrictions pursuant to Rule 144(k) as
determined by the counsel to the Company pursuant to a written opinion letter
to such effect, addressed and acceptable to the Company's transfer agent
(the "EFFECTIVENESS PERIOD"), PROVIDED, HOWEVER, that the Company shall not
be deemed to have used its best efforts to keep the Registration Statement
effective during the Effectiveness Period if it voluntarily takes any action
that would result in the Holders not being able to sell the Registrable
Securities covered by such Registration Statement during the Effectiveness
Period, unless such action is required under applicable law or the Company
has filed a post-effective amendment to the Registration Statement and the
Commission has not declared it effective. The aggregate number of
Registrable Securities under a Registration Statement shall be allocated
among Holders pro rata based on the total number of Registrable Securities
issued or issuable as of the date such Registration Statement is declared
effective by the Commission. All of the provisions of this..."
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