-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TKIio2I6OPiynSAfMWRrcgZA61am7hCiTkK01JrGDU9aWpJMJgerTPDiQ66PJPd9 xmwfjSk6kTGWthMbysA0BA== 0000932384-97-000272.txt : 19971110 0000932384-97-000272.hdr.sgml : 19971110 ACCESSION NUMBER: 0000932384-97-000272 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19971107 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DCX INC CENTRAL INDEX KEY: 0000783284 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPONENTS, NEC [3679] IRS NUMBER: 840868815 STATE OF INCORPORATION: CO FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-39775 FILM NUMBER: 97710440 BUSINESS ADDRESS: STREET 1: 1597 COLE BLVD STREET 2: STE 300B CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 3032742700 MAIL ADDRESS: STREET 1: PO BOX 569 STREET 2: PO BOX 569 CITY: FRANKTOWN STATE: CO ZIP: 80116 FORMER COMPANY: FORMER CONFORMED NAME: DOUGLAS COUNTY INDUSTRIES INC DATE OF NAME CHANGE: 19860109 S-3 1 FORM S-3 As filed with the Securities and Exchange Commission on November 7, 1997 Registration No. 333- ----------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ DCX, INC. (Exact name of registrant as specified in its charter) ------------------ COLORADO 84-0868815 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 1597 COLE BOULEVARD, SUITE 300 GOLDEN, COLORADO 80401 (303) 274-8708 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) G. STEPHEN CARREKER CHAIRMAN AND CHIEF EXECUTIVE OFFICER DCX, INC. 1597 COLE BOULEVARD, SUITE 300 GOLDEN, COLORADO 80401 (303) 274-8708 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------ Copy to: Lester R. Woodward, Esq. Davis, Graham & Stubbs LLP Suite 4700 370 Seventeenth Street Denver, Colorado 80202 (303) 892-9400 ------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time after the effective date of this Registration Statement. ------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [x] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------------ CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed Amount to be offering price maximum aggregate Amount of Title of securities to be registered registered per unit(1) offering price(1) registration fee Common Stock, no par value 4,004,303 $1.3868 $5,553,388 $1,682.85 per share shares
(1) Calculated solely for purposes of determining the registration fee payable pursuant to Rule 457, and is based upon the sum of the product of warrants for 1,140,446 shares times their respective exercise prices, and an aggregate offering price of $4,116,795, pursuant to Rule 457(c), for 2,863,857 shares being offered by Selling Stockholders, based upon the average of the high and low sales prices of the Company Common Stock on November 5, 1997, as reported on the Nasdaq SmallCap Market. ------------------ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any State. SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1997 DCX, INC. 2,863,857 SHARES OF COMMON STOCK OFFERED BY THE SELLING STOCKHOLDERS 1,140,446 SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF CERTAIN WARRANTS This Prospectus relates to 2,863,857 shares of Common Stock (collectively the "Stockholder Securities") offered by the Stockholders of the Company named under "Selling Stockholders" (the "Selling Stockholders"). This Prospectus also relates to 1,140,446 shares of Common Stock, no par value (the "Common Stock"), of DCX, Inc., a Colorado corporation (the "Company"), issuable upon exercise of warrants issued by the Company (collectively the "Warrant Shares"). The Selling Stockholder Securities are being offered by the former shareholders of PlanGraphics, Inc. ("PlanGraphics"), a wholly-owned subsidiary of the Company, certain consultants engaged by the Company in connection with the transaction by which PlanGraphics became a Company subsidiary, and by other consultants and business affiliates of PlanGraphics and the Company. Stockholder Securities may be sold from time to time in transactions (which may include block transactions) on the Nasdaq SmallCap Market, in negotiated transactions, or by a combination of such methods of sale at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The holders of Stockholder Securities may effect such transactions by selling Stockholder Securities to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the holders of Stockholder Securities and/or the purchasers of Stockholder Securities for whom such broker-dealers may act as agent or to whom they may sell as principal or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). The Warrant Shares are issuable under certain warrants issued by the Company as compensation for services, or in connection with other business transactions. These consist of: one warrant issued to Transition Partners, Ltd. to acquire up to 111,260 shares, exercisable in full at an exercise price of $1.00 per share, exercisable until January 14, 2002, as compensation for certain financial and management advisory services to the Company, and one warrant issued to Transition Partners, Ltd. to acquire up to 295,056 shares, at an exercise price of $1.00 per share, exercisable upon and to the extent of the issuance of additional shares of Common Stock by the Company pursuant to the anti-dilution provisions of the consulting agreement between Transition Partners, Ltd. and the Company, exercisable until January 14, 2002; one warrant issued to Copeland Consulting Group, Inc., a company owned by Gene R. Copeland, a Managing Director of Transition Partners, Ltd., to purchase up to 111,260 shares, exercisable in full at an exercise price of $1.00 per share, exercisable until January 14, 2002, as compensation for the financial and management advisory services provided to the Company by Transition Partners, Ltd., and one warrant issued to Copeland Consulting Group, Inc. to acquire up to 295,056 shares, at an exercise price of $1.00 per share, exercisable upon and to the extent of the issuance of additional shares of Common Stock by the Company pursuant to the anti-dilution provisions of the consulting agreement between Transition Partners, Ltd. and the Company, exercisable until January 14, 2002; warrants issued to Spencer Edwards, Inc. to purchase up to 120,000 shares, exercisable in full at an exercise price of $2.25 per share, exercisable until June 30, 1999, as compensation for certain financial advisory services; warrants issued to Coretech, Ltd. to acquire up to 36,281 shares, exercisable in full at an exercise price of $1.875 per share, exercisable through November 8, 1998, for services in connection with an equity offering by the Company; warrants issued to SKB Corporation to purchase up to 74,033 shares, exercisable in full at an exercise price of $1.3929 per share, exercisable through October 10, 1998, in connection with certain business transactions between the Company and SKB Corporation; and warrants issued to Gerald Alexander to purchase up to 97,500 shares, exercisable in full at an exercise price of $1.875 per share, exercisable through August 1, 2000, for services in connection with an equity offering by the Company. This offering will terminate as to particular Warrant Shares on the expiration date of the warrant under which such Warrant Shares are exercisable. This offering will terminate as to the Stockholder Securities held by each Selling Stockholder on a date determined pursuant to an agreement between the Company and such Selling Stockholder. See "Selling Stockholders" and "Sale of Shares." None of the proceeds from the sale of the Stockholder Securities by the Selling Stockholders will be received by the Company. The Company has generally agreed to bear all expenses (other than underwriting discounts and selling commissions and fees and expenses of counsel or other out-of-pocket expenses incurred by the Selling Stockholders) in connection with the registration and sale of the Stockholder Securities. The Company has agreed to indemnify certain Selling Stockholders against specified liabilities, including liabilities under the Securities Act of 1933, as amended (the "Act"). See "Selling Stockholders" and "Sale of Shares." The Common Stock is traded on the Nasdaq SmallCap Market under the symbol "DCXI." THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS." THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -2-
- -------------------------------------------------------------------------------------------------------------------- Proceeds to Company or Price to Public Commissions Selling Stockholders(1) - -------------------------------------------------------------------------------------------------------------------- PROCEEDS TO SELLING STOCKHOLDER SECURITIES............................. STOCKHOLDERS Per Share.......................................... (2) N/A (2) Total.............................................. (2) N/A (2) Common Stock Issuable upon EXERCISE OF WARRANTS............................... PROCEEDS TO COMPANY Per Share.......................................... $1.2596(3) N/A $1.2596 Total.............................................. $1,436,593 N/A $1,436,593
(1) Before reduction for expenses of the offering to be paid by the company, estimated to be $25,983.00. (2) Amounts cannot be determined, since price to the public may be the market price prevailing at the time of sale, a price related to such market price or a negotiated price. The closing price of the Company's Common Stock on the Nasdaq SmallCap Market on November 6, 1997 was $1.50 per share. (3) Weighted average exercise price. The date of this Prospectus is November 7, 1997. -3- AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files reports and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy and information statements and other information concerning the Company can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 as well as of the following Regional Offices; Northwestern Atrium Center, Citicorp Center, Chicago, Illinois 60661; and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of any such material can be obtained from the Public Reference Section of the Commission, Washington, D.C. 20549 at prescribed rates. The Commission also maintains a website at http:\\www.sec.gov that contains reports, proxy and information statements and other information. ------------------ INCORPORATION OF CERTAIN INFORMATION BY REFERENCE The following documents filed by DCX, Inc. with the Commission are incorporated by reference in this Prospectus: (1) Annual Report on Form 10-KSB for the year ended September 30, 1996; (2) Current Report on Form 8-K, dated November 12, 1996; (3) Current Report on Form 8-K, dated December 11, 1996; (4) Quarterly Report on Form 10-QSB for the quarter ended December 31, 1996; (5) Quarterly Report on Form 10-QSB/A-1 for the quarter ended December 31, 1996; (6) Current Report on Form 8-K, dated January 15, 1997; (7) Current Report on Form 8-K, dated March 28, 1997; (8) Quarterly Report on Form 10-QSB for the quarter ended March 31, 1997; (9) Quarterly Report on Form 10-QSB/A-1 for the quarter ended March 31, 1997; (10) Current Report on Form 8-K, dated April 21, 1997; -4- (11) Quarterly Report on Form 10-QSB for the quarter ended June 30, 1997 (12) Quarterly Report on Form 10-QSB/A-1 for the quarter ended June 30, 1997; (13) Current Report on Form 8-K, dated July 31, 1997; (14) Current Report on Form 8-K, dated August 13, 1997; (15) Definitive Proxy Statement, dated August 27, 1997; (16) Current Report on Form 8-K, dated September 9, 1997; (17) Current Report on Form 8-K, dated September 22, 1997; (18) Current Report on Form 8-K, dated October 8, 1997; (19) Current Report on Form 8-K dated October 14, 1997; (20) Current Report on Form 8-K/A-1, dated September 22, 1997; (21) Current Report on Form 8-K/A-1, dated October 8, 1997; and (22) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A, filed March 3, 1986 (File No. 0-14273). ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY PURSUANT TO SECTIONS 13(A), 13(C), 14 OR 15(D) OF THE EXCHANGE ACT PRIOR TO THE TERMINATION OF THIS OFFERING SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND TO BE A PART HEREOF FROM THE DATE OF FILING OF SUCH DOCUMENTS. ANY STATEMENT CONTAINED IN A DOCUMENT INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE SHALL BE DEEMED TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS PROSPECTUS TO THE EXTENT THAT A STATEMENT CONTAINED HEREIN OR IN ANY OTHER SUBSEQUENTLY FILED DOCUMENT WHICH ALSO IS OR IS DEEMED TO BE INCORPORATED BY REFERENCE HEREIN MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY STATEMENT SO MODIFIED OR SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO CONSTITUTE A PART OF THIS PROSPECTUS. The Company will provide without charge to each person to whom a copy of this Prospectus is delivered, upon the oral or written request of such person, a copy of any document incorporated in this Prospectus by reference, except exhibits to such information unless such exhibits are also expressly incorporated by reference herein. Requests for such information should be directed to DCX, Inc., 1597 Cole Boulevard, Suite 300, Golden, Colorado 80401, Attention: Corporate Secretary, telephone (303) 274-8708. -5- THE OFFERING Common Stock Issuable Upon the Exercise of the Warrants......... The Company is offering 1,140,446 shares of Common Stock issuable upon the exercise of certain warrants, at exercise prices ranging from $1.00 to $2.25 per share. Common Stock Offered by the Selling Stockholders................. The Selling Stockholders, who are identified under "Selling Stockholders," are offering 2,863,857 shares of Common Stock, issued by the Company in or in connection with its acquisition of PlanGraphics, Inc., or in connection with other business transactions by PlanGraphics or the Company. Securities Outstanding............... As of November 6, 1997, 8,237,146 shares of Common Stock, 1,680 shares of Series A 6% Convertible Redeemable Preferred Stock, and authorized or outstanding warrants and options to purchase approximately 4,534,339 shares of Common Stock. -6- DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS This Prospectus includes and incorporates by reference statements that are not purely historical and are "forward-looking statements" within the meaning of Section 27A of the Act and Section 21E of the Exchange Act, including statements regarding the Company's expectations, hopes, beliefs, intentions or strategies regarding the future. All statements other than statements of historical fact included in or incorporated by reference in this Prospectus, including without limitation, expected growth of the domestic and global geographic information systems markets, beliefs regarding the strength of the Company's market position with respect to new or contemplated business strategies and activities, expectations regarding availability and marketability of new digital imaging products and proceeds, anticipated growth in the Company's revenue and profitability, cash operating costs and certain significant expenses, and potential acquisitions of, or strategic partnering with, other geographic information system providers. Factors that could cause actual results to differ materially include, among others, the entry of new companies into the geographic information system business, unanticipated competition from new strategic alliances in the industry, increased price competition from software manufacturers and their affiliated vendors, user shifts toward more standardized, off the shelf products and a decreased reliance on custom design software services, shifts in governmental policy on the availability of government-owned data and data procurement platforms to commercial and other public sector users, difficulties in hiring and retaining sufficient numbers of professional and other skilled personnel, force majeure events, accidents, and general domestic and international economic and political conditions and other factors described in this Prospectus and in the Company's annual reports on Form 10-KSB, quarterly reports on Form 10-QSB and current reports on Form 8-K filed with the Securities and Exchange Commission. Many of such factors are beyond the Company's ability to control or predict. All forward-looking statements included or incorporated by reference in this Prospectus are based on information available to the Company on the date hereof, and the Company assumes no obligation to update such forward-looking statements. Although the Company believes that the assumptions and expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct or that the Company will take any actions that may presently be planned. Certain important factors that could cause actual results to differ materially from the Company's expectations are disclosed under the "Risk Factors" section of this Prospectus. All subsequent written or oral forward- looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by such factors. -7- RISK FACTORS The securities offered hereby involve a high degree of risk, including, but not limited to, the risk factors described below. Each prospective investor should carefully consider the following risk factors inherent in and affecting the business of the Company before making an investment decision. Investment risks inherent in the geographic information systems industry are discussed below as risks associated with an investment in the Company by virtue of its ownership of PlanGraphics, and because the geographic information systems business is the principal business focus of both PlanGraphics and the Company. References in "Risk Factors" to the Company refer both to the Company and to PlanGraphics, unless the context requires otherwise. ACCUMULATED DEFICIT; OPERATING EXPENSES; CONTINUATION AS A GOING CONCERN. Although PlanGraphics has achieved positive net income in each of its two most recent fiscal years, in their report on the financial statements for the nine month fiscal year ended September 30, 1996, PlanGraphics referred to its accumulated deficit and stated that its ability to continue as a going concern was dependent on either its ability to continue to successfully control costs or obtain the necessary funding to continue its operations. In its efforts to respond to opportunities presented by market expansion and diversification in the geographical information systems industry, PlanGraphics has expanded its workforce of professional personnel and related support staff and has incurred, as a result, significant growth in related operating expense. While PlanGraphics has identified some areas in which to control and even reduce these costs, operating costs remain considerable in relation to revenue and there can be no assurance that the Company will be able to control costs and generate revenue at levels which will result in profitable operations in the future. Since June 30, 1997, the Company has raised approximately $1,615,000 in net equity capital, debt financing of approximately $545,000, and increased its cash reserves by approximately $1,045,000 by its sale of the manufacturing portion of its business. In addition, in connection with the recent acquisition of PlanGraphics by the Company some $290,000 of PlanGraphics' long-term debt was converted into equity resulting in an associated reduction in consolidated debt. While substantially all of the proceeds of these capital inflows have been applied toward outstanding debt or payables, or to the working capital requirements of the Company and PlanGraphics, the Company believes that the combination of PlanGraphics into DCX, Inc., a publicly traded company, may facilitate its acquisition of additional capital to fund its geographic information system operating and growth strategies. There can be no assurance, however, that the Company will be able to obtain additional capital, or that the Company's profits, if any, will be sufficient to cover the operating expense and capital requirements of the Company. LIQUIDITY, CAPITAL REQUIREMENTS; NEED FOR ADDITIONAL FINANCING. The Company has combined capital obligations under leases and debt instruments of approximately $70,000 per month. While the Company believes that it has sufficient cash reserves to meet its obligations in the near term, there can be no assurance that the Company will be able to meet growing working capital needs in the future. Any inability to obtain needed capital could have a material adverse effect on the Company and its presently contemplated strategic growth -8- strategies. Additional equity financing may involve substantial dilution to the interests of the Company's then-existing shareholders. REAL PROPERTY; MORTGAGE OBLIGATIONS. The Company remains obligated on a thirty-month real property mortgage covering its aircraft component assembly manufacturing facility and site, which it has leased to a third party until March 31, 1998, subject to extension for up to thirty months, for a monthly rental which exceeds the Company's monthly mortgage and related expense associated with the property. The lessee also holds an option to purchase the property. In the event the lessee does not exercise its option, the Company will remain obligated on the mortgage until such time as it can find a buyer for the property or the note on the property is repaid. In addition, the Company remains responsible under the lease for certain structural and mechanical repair obligations with respect to the facility. The mortgage is secured by a lien on the real property and by an assignment of the lease to the Company's lender. Any default by the lessee on its lease obligations, and the inability of the Company to secure another tenant or sell the property in a timely manner at an acceptable price, could have a material adverse effect on the Company. Additionally, PlanGraphics is committed to a long-term capital lease on its main office facility, requiring annual lease payments of approximately $320,000. While the Company believes its cash reserves are sufficient to satisfy these lease obligations in the near term, any inability of the Company to remain current on its lease payments may result in the loss of this office facility, which could have a material adverse effect on the Company. OUTSTANDING INDEBTEDNESS. In order to satisfy capital requirements and finance the Company's operations, the Company has incurred a certain amount of indebtedness and, even after the completion of this offering and other recent financings, and the application of any proceeds therefrom, some indebtedness will remain outstanding. While the Company believes that it has sufficient liquid assets to meet its obligations in the near term, it cannot be assured of attaining consistent positive net income and is subject to the risk that its cash flow may be inadequate to make required payments on its indebtedness and capital expenses. A portion of the value of the Company's assets has been pledged as collateral to secure Company debt. There can be no assurance that the Company will continue to be able to make required payments on its indebtedness and leases in the future. DEPENDENCE ON PRINCIPAL CLIENT. The consulting business is inherently subject to the aggregation of a substantial amount of business around one client or a small number of significant clients. For the last three years, a significant portion of PlanGraphics' revenue has been derived from one client. For the years ended September 30, 1997, September 30, 1996 and December 31, 1995, approximately 30%, 34.8% and 34.7%, respectively, of PlanGraphics' recognized revenues were derived from its largest contract. While the Company anticipates that the proportionate amount of its total revenue allocable to this client will decrease in subsequent fiscal years, the sudden loss of this investor-owned utility client could have a material adverse effect on the Company. DEPENDENCE ON GOVERNMENT CONTRACTS. The Company is significantly dependent upon local, state and foreign government contracts for the provision of its services. In each of -9- fiscal years 1997, 1996 and 1995, government contracts represented approximately 30% of the Company's gross revenue. Government contracts are entirely dependent upon the applicable budgeting process and procurement decisions of the various government agencies and entities. There can be no assurance that government contracting revenues will remain stable. COMPETITION. The market for geographic information system advisory and implementation services is highly competitive. The Company competes with a number of companies engaged in offering similar services. These include in-house services offered by engineering firms, and consulting services offered by software and hardware developers and their affiliates below cost, who can then recover these losses in follow-on hardware and software sales and support services. Many of these firms, developers and manufacturers, individually or with their affiliates, possess substantially greater financial, marketing, personnel and other resources than the Company. In addition, several of the Company's competitors who are not themselves hardware or software manufacturers have established strategic relationships with manufacturers, permitting them to compete effectively with the Company on the basis of price as to certain products. Because of their greater resources, some of the Company's competitors may be able to respond more quickly to new or emerging technologies and changes in client requirements. Further, as the market for geographic information systems and related services grows, software and hardware designers and manufacturers will be incentivized to sell products with increased standardization and interoperability. Any price-driven trend toward these more limited but standardized systems could reduce demand for the more sophisticated and customized, but more costly, services provided by the Company. While the Company believes that it competes effectively on the basis of breadth and depth of expertise, independence, and response sensitivity and timeliness, there can be no assurance that the Company will be able to compete successfully in the future. INTERNATIONAL SALES AND SERVICES. The Company derives a portion of its revenue from international projects, and the Company anticipates that this will continue into the foreseeable future. Inherent in all international operations are risks of unanticipated changes in host country regulation, shifts in currency exchange rates, differences in personnel communication and management protocols, unexpected changes in the international economic and political environments, shifts in international markets, and difficulties in protecting proprietary products. There can be no assurance that the Company will be able, due to these or other reasons, to increase or sustain its current levels of revenue from international operations, or that such operations will be or remain profitable. Changes in international business conditions could have an adverse effect on the Company's business and results of operations. PROPRIETARY TECHNOLOGY; INTELLECTUAL PROPERTY RIGHTS. The Company regards as proprietary certain of its developed software applications, and attempts to protect these with a combination of copyright, trademark and trade secret laws, employee and third party non-disclosure agreements, and other methods of protection. As in any attempt to protect proprietary matters, despite precautions it may be possible for unauthorized third parties to copy certain portions of the Company's products or reverse engineer or obtain and use information the -10- Company regards as proprietary. There can be no assurance that the Company's intellectual property rights can be successfully asserted in the future or will not be invalidated, circumvented or challenged. In addition, the laws of some foreign countries do not protect proprietary rights to the same extent as do the laws of the Unites States. Any misappropriation of the Company's intellectual property could have an adverse effect on the Company's business and results of operations. Furthermore, regardless of the degree of caution exercised by the Company, there can be no assurance that third parties will not assert infringement claims against the Company in the future with respect to current or future products. Any such assertion could require the Company to enter into royalty arrangements or engage in costly litigation. NEW PRODUCTS AND TECHNOLOGICAL CHANGE. The geographic information systems industry is characterized by extremely rapid technological change, evolving industry standards and client expectations, and frequent new product introductions. These conditions will require continuous expenditures by the Company on product research, testing and training to sustain the Company's level of expertise in and reputation for broad based and objective advisory services. There can be no assurance that the Company will successfully manage the pace of technological change and new product introduction, or sustain the level of training and/or additional hiring required to maintain full product fluency in the marketplace. BUSINESS PARTNERS. The Company maintains strategic relationships with substantially all of the major software manufacturers in the geographic information systems industry. Several of these manufacturers offer similar services to those of the Company, and may have interests adverse to those of the Company in bidding for a particular project. There can be no assurance that these business relationships will be maintained, or that strategic alliances or business combinations between or among the Company's competitors will not cause realignments among developers, manufacturers and vendors which are materially injurious to the Company. LITIGATION. The Company has established a litigation reserve of $521,000 in relation to a contract dispute which arose in 1988 under a federal government contract for the manufacture by the Company of certain aircraft wiring harness assemblies. While the Company believes that this dispute may settle and that any settlement amount will not exceed its established reserve, there can be no assurance that the settlement will occur, will be on terms favorable to the Company, or that the amounts reserved will be adequate to satisfy any Company liability under this contract. An unfavorable outcome of this litigation could have an adverse effect on the Company. DEPENDENCE UPON KEY AND ADDITIONAL PERSONNEL. The success of the Company may be significantly dependent upon the efforts of certain key personnel of the Company, including G. Stephen Carreker, its Chief Executive Officer and Chairman, John C. Antenucci, its President and founder of PlanGraphics, Frederick G. Beisser, its Vice President - Finance and Administration, J. Gary Reed, PlanGraphics' Chief Operating Officer, and other officers. Although the Company has entered into employment agreements with Messrs. Carreker, Antenucci, Beisser and Reed, and certain other officers, managers and key technical personnel, the loss of the services of any of these officers or certain other key employees could have a -11- material adverse effect on the Company. The success of the Company is also dependent upon its ability to retain existing personnel and to hire and train additional qualified personnel, including competent engineers and technicians. There can be no assurance that the Company will be able, for financial reasons or otherwise, to retain or hire such personnel. SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS. Of the 8,237,146 shares of Common Stock outstanding as of November 6, 1997, in addition to the Stockholder Securities offered hereby, approximately 659,970 shares are "restricted securities," as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). As of the date of this Prospectus, 568,680 of such shares are eligible for sale under Rule 144 under the Act. The Company has also registered for sale to the public approximately 2,169,321 shares of Common Stock, outstanding or issuable upon the exercise of certain options, issued to consultants, directors or officers, as well as the shares issuable upon the exercise of options granted under the Company's 1991 Stock Option Plan and 1995 Stock Incentive Plan. The Company also recently sold 1,900 shares of Series A 6% Convertible Redeemable Preferred Stock of the Company, par value $.001 ("Preferred Stock"), in a series of equity offerings, 1,680 of which shares are still outstanding. Each share of Preferred Stock is or will be convertible into shares of Common Stock at conversion rates tied to the lower of the then-current trading price of the Common Stock at the time of conversion or the trading price at the time of the sale of the Preferred Stock, subject to adjustment in the event of changes to the Common Stock, a merger, or the sale of the Company or a substantial portion of its assets. By way of illustration, at the closing price of the Common Stock on November 6, 1997, the conversion of all of the outstanding shares of Preferred Stock would result in the issuance of approximately 1,120,000 shares of Common Stock. The number of shares issuable upon conversion of the Preferred Stock increases or decreases as the trading price of the Common Stock decreases or increases, respectively. Shares of Preferred Stock mandatorily convert on the one year anniversary of their date of issuance. The holders of the Preferred Stock also have the right under certain circumstances to require the Company to register the shares of Common Stock issuable upon conversion of the Preferred Stock. Sales of a substantial number of shares of Common Stock in the public market following this offering, or the perception that such sales could occur or the issuance of shares of Common Stock upon exercise of the Company's outstanding options and warrants or upon the conversion of the Preferred Stock could adversely affect the market price of the Common Stock. AUTHORIZED OR OUTSTANDING OPTIONS AND WARRANTS. As of November 6, 1997, there were outstanding stock options to purchase approximately 3,393,893 shares of Common Stock at exercise prices ranging from $.58 to $4.25 per share and authorized or outstanding warrants to purchase approximately 1,140,446 shares of Common Stock at exercise prices of $1.00 to $2.25 per share. To the extent that the outstanding stock options and warrants are exercised, dilution to the interest of the Company's stockholders will occur. Moreover, the terms upon which the Company will be able to obtain additional equity capital may be adversely affected since the holders of the outstanding options and warrants can be expected to exercise them at a time when the Company would, in all likelihood, be able to obtain any needed capital -12- on terms more favorable to the Company than those provided in the outstanding options and warrants. VOLATILITY OF PRICE OF COMMON STOCK. The market price of the Company's Common Stock has been, and may in the future be, highly volatile. Factors such as the Company's operating results and announcements of technological innovations or new products or contracts by the Company or its competitors, as well as changes in the geographic information systems industry, could have a significant impact on the market price of the Company's Common Stock. Further, in recent years, the securities markets have experienced a high level of price and volume volatility and the market prices of securities for many companies have experienced wide fluctuations which have not necessarily been related to the operating performance of such companies. THE COMPANY The Company was organized under the laws of the State of Colorado on December 8, 1981. During the past three years the Company has been engaged in the business of the custom design and manufacture of aircraft electronic interconnect assemblies, principally under contracts for Department of Defense acquisition programs or for military aircraft maintenance support. The Company's principal business as of the date of this Prospectus, through its wholly-owned subsidiary, PlanGraphics, Inc., is the development and sale of geographic information products for local, state and foreign governments, gas, electric and telephone utilities, and other commercial entities. DCX, Inc. is located at 1597 Cole Boulevard, Suite 300, Golden, Colorado 80401 and its telephone number is 303-274-8708. USE OF PROCEEDS If all of the warrants are exercised, the Company will receive gross proceeds of approximately $1,436,593. There can be no assurance that any of these warrants will be exercised. The Company plans to use any proceeds received from the exercise of these warrants for working capital and general corporate purposes, and may use a portion of such proceeds to repay outstanding indebtedness. In addition, the Company may, if and when the opportunity arises, use a portion of any such proceeds, together with the issuance of equity or debt securities, to acquire companies which the Company believes are compatible with its business. The Company will not receive any of the proceeds from the sale by the Selling Stockholders of the Common Stock offered hereby. The above applications reflect management's current plans and may be changed to reflect various factors, including arrangements with other companies and competitive developments, some of which are beyond the control of management. Pending application, any -13- proceeds received upon the exercise of any of these warrants will be temporarily invested in high-quality, interest-bearing securities and in other investments which the Company deems appropriate. -14- SELLING STOCKHOLDERS The following table shows the names of the Selling Stockholders and the number of Stockholder Securities owned beneficially by each of them, or their nominees, as of November 6, 1997, and the number of Stockholder Securities which may be offered pursuant to this Prospectus. This information is based on Company records, or information provided by the Selling Stockholders or their representatives. Except as set forth in footnote below, shares beneficially owned by Selling Stockholders prior to this offering consist entirely of shares obtainable upon exercise of options or the vesting of performance shares under various employee benefit plans of Company, and may or may not be obtainable by the applicable Selling Stockholder within 60 days following the date of this Prospectus. Specific terms of such options and performance shares are set forth in footnote below as to officers of the Company. Because the Selling Stockholders may offer all, some or none of the Stockholder Securities which they hold, no estimate can be given as to the number of Stockholder Securities or the percentage of the Company's outstanding Common Stock that will be held by the Selling Stockholders upon termination of such offering. See "Sale of Securities."
TOTAL OF SHARES SHARES OFFERED FOR BENEFICIALLY OWNED STOCKHOLDER'S TOTAL OF SHARES BENEFICIALLY SELLING STOCKHOLDERS PRIOR TO OFFERING ACCOUNT OWNED AFTER OFFERING - ------------------------------ ------------------ ------------------ ------------------------------ SHARES SHARES NUMBER PERCENTAGE ------------------ ------------------ ---------- --------------- John C. Antenucci/1/ 1,711,475 1,186,475 525,000 6.0% Hugh N. Archer 18,357 18,357 * * Black & Veatch Holding Company/2/ 608,713 608,713 * * Scott E. Boocher 93,193 93,193 * * William G. Brooner 10,415 10,415 * * Kaye N. Brothers 1,751 1,139 612 * Vickie C. Bunker 3,758 3,758 * * James R. Cannistra 25,114 18,627 6,487 * Charles A. Cmeyla 38,893 33,875 5,018 * Dwight Coppock 46,909 46,909 * * Peter L. Croswell 124,450 71,984 52,466 * Stu Davis 12,238 12,238 * * Patricia A. Edelen 2,754 2,142 612 * Robert W. Finkle 53,396 1,848 51,548 * Maurice E. Foley 32,749 32,749 * * Rich Goodden 5,789 771 5,018 * Al Hanks 12,238 12,238 * * Marina Havan-Orumieh 28,219 771 27,448 * Edward T. Hedges 6,878 6,878 * * Charles D. Howard 67,970 67,970 * * Michael J. Kevany/3/ 259,287 96,191 163,096 1.9% Dave Koehler 392 392 * * Rosanne Kruzich 4,284 4,284 * * -15- TOTAL OF SHARES SHARES OFFERED FOR BENEFICIALLY OWNED STOCKHOLDER'S TOTAL OF SHARES BENEFICIALLY SELLING STOCKHOLDERS PRIOR TO OFFERING ACCOUNT OWNED AFTER OFFERING - ------------------------------ ------------------ ------------------ ------------------------------ SHARES SHARES NUMBER PERCENTAGE ------------------ ------------------ ---------- --------------- Dennis M. Kunkle 84,920 83,696 1,224 * Jeffrey M. Laird 3,060 3,060 * * Thomas Lenzen 1,530 1,530 * * Minna Li 45,746 4,198 41,548 * Anna L. Metcalf 51,487 1,836 49,651 * Margaret T. Norman 612 612 * * Quarterdeck Investment Partners, Inc./4/ 152,975 152,975 * * Cindy Popolillo 27,987 1,273 26,714 * Amy J. Purves 14,295 8,053 6,242 * Joyce Rector/5/ 178,446 73,428 105,018 1.3% J. Gary Reed/6/ 350,961 943 350,018 4.1% Paul Reisner 392 392 * * David A. Riddle 612 612 * * Leann S. Rodgers 7,245 6,633 612 * Ralph Silver 6,119 6,119 * * Soberekon K. Simon-Ogan 4,284 4,284 * * J. Woodson Smith 31,548 918 30,630 * Ann F. Wingrove 15,298 15,298 * * First Capital Partners/7/ 100,000 100,000 * * W. Terrance Schreier/8/ 439,211 32,895 406,316 4.7% Copeland Consulting Group, Inc./8/ 439,211 32,895 406,316 4.7%
* Reflects less than one percent (1%) of the 8,237,146 outstanding shares of Common Stock as of the date of this Prospectus. 1 President of PlanGraphics, Inc., and President and Vice Chairman of the Board of Directors of the Company. Includes options for 300,000 shares at $1.75 per share exercisable within 60 days following the date of this Prospectus, and up to 225,000 performance shares which vest more than 60 days of the date of this Prospectus. 2 Black & Veatch Holding Company is a strategic partner of PlanGraphics, Inc., and until September 22, 1997, owned 18% of the outstanding capital stock of PlanGraphics, Inc. 3 Senior Vice President of PlanGraphics, Inc. Includes options for 50,000 shares at $1.75 per share exercisable within 60 days of the date of this Prospectus, and options for 3,060 shares at $.58 per share, 10,036 shares at $1.00 per share and 100,000 shares at $1.75 per share exercisable more than 60 days of the date of this Prospectus. 4 Quarterdeck Investment Partners, Inc. has provided investor communications and development services for PlanGraphics, Inc. 5 Senior Vice President for Human Relations and Resources of PlanGraphics, Inc. Includes options for 40,000 shares at $1.75 per share exercisable within 60 days following the date of this Prospectus, and options for up to 60,000 shares at $1.75 per share and options for 5,018 shares at $1.00 per share not exercisable within 60 days of the date of this Prospectus. 6 Chief Operating Officer of PlanGraphics, Inc. and a Director of the Company. Includes options for 200,000 shares at $1.75 per share exercisable within 60 days following the date of this Prospectus, and options for 5,018 shares at $1.00 per share and up to 145,000 performance shares, all of which vest more than 60 days of the date of this Prospectus. 7 First Capital Partners has been a financial advisor to DCX, Inc. 8 Total Shares figures include shares registered hereunder obtainable upon the exercise of warrants issued to Transition Partners Limited as to W. Terrance Schreier, or to Copeland Consulting Group, Inc., respectively. Transition Partners Limited, of which W. Terrance Schreier is the principal, was retained by the Company on January 15, 1997 to provide management and financial advisory services to the Company, and assisted the Company in its acquisition of PlanGraphics, Inc. Gene R. Copeland, a Managing Director of Transition Partners Limited, is the principal of Copeland Consulting Group, Inc. -16- SALE OF SHARES The sale of shares by the Selling Stockholders may be effected from time to time in transactions (which may include block transactions) on the Nasdaq SmallCap Market, in negotiated transactions, or a combination of such methods of sale at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, or at negotiated prices. The Selling Stockholders may effect such transactions by selling Stockholder Securities to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Stockholders and/or the purchasers of Stockholder Securities for whom such broker-dealers may act as agent or to whom they sell as principal or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). The Selling Stockholders and any broker-dealers that act in connection with the sale of the Stockholder Securities hereunder might be deemed to be "underwriters" within the meaning of Section 2(11) of the Act and any commissions received by them and any profit on the resale of Stockholder Securities as principals might be deemed to be underwriting discounts and commissions under the Act. The Company has agreed to indemnify certain of the Selling Stockholders against certain liabilities, including liabilities under the Act. Pursuant to its agreement with certain of the Selling Stockholders, the Company is obligated to maintain the effectiveness of the Registration Statement of which this Prospectus forms a part (the "Registration Statement"). Pursuant to this agreement, the Offering contemplated hereby will terminate with respect to the Stockholder Securities upon the earlier of (i) the date all of the Stockholder Securities are sold by the Selling Stockholders; or (ii) one year from the effective date of the Registration Statement of which this Prospectus forms a part. To the extent required by applicable law, this Prospectus will be supplemented to summarize the terms of any sales through dealers, together with any discounts, commissions or concessions allowed to such dealers in connection therewith. No sale or distributions other than as described herein may be effected until after this Prospectus shall have been appropriately amended or supplemented. LEGAL MATTERS The legality of the Stockholder Securities was passed upon for the Company by Davis, Graham & Stubbs LLP, Denver, Colorado. EXPERTS The consolidated financial statements of DCX, Inc. and subsidiaries as of September 30, 1996 and 1995, have been incorporated by reference herein in reliance upon the -17- report of BDO Seidman, LLP, independent certified public accountants, and upon the authority of said firm as experts in accounting and auditing. The financial statements of PlanGraphics, Inc. as of December 31, 1995 and the nine-month fiscal year ended September 30, 1996, incorporated by reference herein, have been incorporated by reference herein in reliance upon the report of Eskew & Gresham, PSC, independent certified public accountants, and upon the authority of said firm as experts in accounting and auditing. -18- DCX, INC. 2,863,857 SHARES OF COMMON STOCK OFFERED BY THE SELLING STOCKHOLDERS 1,140,446 SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF CERTAIN WARRANTS ---------------- PROSPECTUS ---------------- November 7, 1997 No person is authorized to give any information or to make any representations not contained in this Prospectus and, if given or made, such information or representation must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell, or a solicitation of any person in any jurisdiction where such an offer or solicitation would be unlawful. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that the information contained herein is correct as of any time subsequent to the date hereof. -19- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table shows all expenses of the issuance and distribution of the securities offered hereby: SEC Registration Fee...................................... $ 1,682.85 State Qualification Expenses.............................. $ 5,000 Printing Expenses......................................... $ 100 Legal Fees and Expenses................................... $ 13,000 Accountants' Fees and Expenses............................ $ 5,000 Transfer Agent and Registrar Fees......................... $ 200 Miscellaneous Expenses.................................... $ 1,000 Total................................................... $25,982.85 All amounts listed above, except for the SEC registration fee, are estimates and none are being borne by the Selling Stockholders. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article VII of the Articles of Incorporation of the Company provides as follows: "The Corporation shall indemnify any and all of its directors, officers, employees, authorized agents or former directors or officers or any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor, against expenses actually and necessarily incurred by them to the fullest extent permitted under Colorado Corporate Code, in connection with the defense of any action, suit or proceeding in which they or any of them, are made parties, or a party, by reason of being or having been directors or officers of the Corporation, or of such other corporation, except in relation to matters to which any such director or officer or former director or person shall be adjudged in such action, suit or proceeding to be liable for gross negligence or willful misconduct in the performance of duty. Such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled, under any By-Law agreement, vote of shareholders or otherwise. In addition no officer, director, employee or authorized agent shall be personally liable for any injury to person or property arising out of a tort committed by an employee unless such officer or director was personally involved in the situation giving rise to the litigation or unless such officer or director committed a criminal offense. The protection afforded hereby shall not restrict other common law protection and rights that an officer or director may have. This Article shall not restrict the Corporation's right to eliminate or limit the personal liability of a director to the Corporation or to its shareholders for monetary damages for breach of fiduciary duty as a director, and the personal liability of II-1 directors to the Corporation and to us shareholders for monetary damages shall be eliminated or limited, to the full extent permitted by the Colorado Corporation Code, except for monetary damages for any breach of the director's duty of loyalty to the Corporation or to its shareholders, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, acts specified in Section 7-5-114 of the Colorado Corporation Code, or any transaction from which the director derived an improper personal benefit. Nor shall the liability of a director of the Corporation be eliminated or limited to the Corporation or to its shareholders for monetary damages for any act or omission occurring prior to the effective date of this Article." Article VI of the Bylaws of the Company provides as follows: "Each Director and Officer of this Corporation, and each person who shall serve at its request as a Director or Officer of another corporation in which this Corporation owns shares of capital stock or of which it is a creditor, whether or not then in office, and his personal representatives, shall be indemnified by the Corporation against all costs and expenses actually and necessarily incurred by him in connection with the defense of any action, suit or proceeding in which he may be involved or to which he may be made a party by reason of his being or having been such Director or Officer, except in relation to matters as to which he shall be finally adjudged in such action, suit or proceeding to be liable for negligence of misconduct in the performance of duty. Such costs and expenses shall include amounts reasonably paid in settlement for the purpose of curtailing the costs of litigation, but only if the Corporation is advised in writing by its counsel that in his opinion the person indemnified did not commit such negligence or misconduct. The foregoing right of indemnification shall not be exclusive of other rights to which he may be entitled as a matter of law or by agreement." Insofar as indemnification for liabilities arising under the Act may be permitted to Directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a Director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such Director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-2 ITEM 16. EXHIBITS. Exhibits 4.1 Amended and Restated Articles of Incorporation./1/ 4.2 Articles of Amendment to the Articles of Incorporation./2/ 4.3 Specimen Stock Certificate./3/ 4.4 Warrant, dated January 15, 1997 issued to Transition Partners Limited. 4.5 Warrant, dated October 15, 1997, issued to Transition Partners Limited. 4.6 Letter Agreement between Transition Partners, Ltd. and the Company, dated January 9, 1997. 4.7 Warrant, dated January 15, 1997 issued to Copeland Consulting Group, Inc. 4.8 Warrant, dated October 15, 1997, issued to Copeland Consulting Group, Inc. 4.9 Warrant, dated June 19, 1997 issued to Spencer Edwards, Inc. 4.10 Warrant, dated November 8, 1996 issued to Coretech, Ltd. 4.11 Warrant, dated October 10, 1997, issued to SKB Corporation. 4.12 Warrant, dated October 24, 1997, issued to Gerald Alexander. 5.1 Opinion and Consent of Davis, Graham & Stubbs LLP./4/ 23.1 Consent of Davis, Graham & Stubbs LLP - See Exhibit 5.1./4/ 23.2 Consent of BDO Seidman, LLP. 23.3 Consent of Eskew & Gresham, PSC. 24 Power of Attorney to Sign Registration Statement. See page II-5. - -------------------- 1 Filed as an exhibit to the Company's definitive Proxy Statement, dated May 3, 1991 and incorporated herein by reference. 2 Filed as an exhibit to the Company's Current Report on Form 8-K dated November 12, 1996, and incorporated herein by reference. 3 Filed as an exhibit to the Company's Registration Statement on Form S-18 (Registration No. 33-1484), as filed with the Commission on November 12, 1985, and incorporated herein by reference. 4 To be filed by amendment. II-3 ITEM 17. UNDERTAKINGS. A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933 (the "Act"), each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Golden, State of Colorado, on the 7th day of November, 1997. DCX, INC. By: Fred Beisser ---------------------------------------- Frederick G. Beisser Vice President - Finance and Administration, Secretary and Treasurer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints G. Stephen Carreker and Frederick G. Beisser and each or any of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. SIGNATURE TITLE DATE G. Stephen Carreker Chief Executive Officer, and November 7, 1997 - ---------------------------- Chairman of the Board of G. Stephen Carreker Directors John C. Antenucci President and Vice-Chairman November 7, 1997 - ---------------------------- of the Board of Directors John C. Antenucci Fred Beisser Vice President - Finance and November 7, 1997 - ---------------------------- Administration, Secretary and Frederick G. Beisser Treasurer and a Director (Principal Financial and Accounting Officer) II-5 Jeanne M. Anderson - ---------------------------- Director November 7, 1997 Jeanne M. Anderson J. Gary Reed - ---------------------------- Director November 7, 1997 J. Gary Reed Ray O'Mara - ---------------------------- Director November 7, 1997 Raymond E. O'Mara II-6 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE 4.1 Amended and Restated Articles of Incorporation./1/ 4.2 Articles of Amendment to the Articles of Incorporation./2/ 4.3 Specimen Stock Certificate./3/ 4.4 Warrant, dated January 15, 1997 issued to Transition Partners Limited. 4.5 Warrant, dated October 15, 1997, issued to Transition Partners Limited. 4.6 Letter Agreement between Transition Partners, Ltd. and the Company, dated January 9, 1997. 4.7 Warrant, dated January 15, 1997 issued to Copeland Consulting Group, Inc. 4.8 Warrant, dated October 15, 1997, issued to Copeland Consulting Group, Inc. 4.9 Warrant, dated June 19, 1997 issued to Spencer Edwards, Inc. 4.10 Warrant, dated November 8, 1996 issued to Coretech, Ltd. 4.11 Warrant, dated October 10,1997, issued to SKB Corporation. 4.12 Warrant, dated October 24, 1997, issued to Gerald Alexander. 5.1 Opinion and Consent of Davis, Graham & Stubbs LLP./4/ 23.1 Consent of Davis, Graham & Stubbs LLP - See Exhibit 5.1./4/ 23.2 Consent of BDO Seidman, LLP. 23.3 Consent of Eskew & Gresham, PSC. 24 Power of Attorney to Sign Registration Statement. See page II-5. - -------------------- 1 Filed as an exhibit to the Company's definitive Proxy Statement, dated May 3, 1991 and incorporated herein by reference. 2 Filed as an exhibit to the Company's Current Report on Form 8-K dated November 12, 1996, and incorporated herein by reference. 3 Filed as an exhibit to the Company's Registration Statement on Form S-18 (Registration No. 33-1484), as filed with the Commission on November 12, 1985, and incorporated herein by reference. 4 To be filed by amendment. II-7 EX-4 2 WARRANT TO PURCHASE COMMON STOCK-TPL, EXHIBIT 4.4 THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND THIS WARRANT MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) FROM THE TRANSFEROR REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT. No. Warrant to Purchase 111,260 Shares ---------------- of Common Stock (subject to adjustment) Date: January 15, 1997 WARRANT TO PURCHASE COMMON STOCK OF DCX, INC. This certifies that, in consideration of value heretofore received by DCX, INC., a Colorado corporation (the "Company") receipt of which is hereby acknowledged, TRANSITION PARTNERS, LIMITED, 1942 Broadway, Suite 203, Boulder, CO 80302 ("Holder") is entitled to subscribe for and purchase up to 111,260 shares of fully paid and nonassessable Common Stock of the Company, at the price of $1.00 per share, as adjusted pursuant to Paragraph 4 hereof (the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein, the term "Common Stock" shall mean the Company's presently authorized Common Stock and any stock into which such Common Stock may hereafter be exchanged. 1. TERM. The purchase right represented by this Warrant is exercisable, in whole or in part at any time following the date hereof until JANUARY 14, 2002. 2. METHOD OF EXERCISE; PAYMENT: ISSUANCE OF NEW WARRANT. Subject to paragraph I hereof, the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly executed) at the principal office of the Company and by the payment to the Company, by either: (a) a check, of an amount equal to the then applicable Warrant Price per share multiplied by the number of shares of common stock then being purchased; or (b) that number of shares of common stock of the Company having a fair market value equal to the then applicable warrant price per share multiplied by the number of shares of common stock then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be delivered to the Holder hereof within five (5) business days and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof within such reasonable time. 3. STOCK FULLY PAID, RESERVATION OF SHARES. All Common Stock which may be issued upon the exercise of the rights represented by this Warrant ("Warrant Stock") will, upon issuance, be fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. If there shall be any change described in sub-paragraphs (a), (b) or (c) below, the aggregate Warrant Price shall remain unchanged but the number of shares covered by this Warrant shall in each instance be adjusted as follows: a. If a share dividend is declared on the Common Stock of the Company, the number of shares of Common Stock subject to this Warrant shall be increased by the number of shares which would have been issuable to the Holder if such Holder had exercised this Warrant immediately prior to the record date related to the declaration and payment of such share dividend; b. If an increase or decrease is effected in the number of outstanding shares of Common Stock by reason of subdivision or combination of such shares, the number of shares of Common Stock subject to this Warrant shall equal the number of shares which would have been held by the Holder after consummation of such combination or subdivision if the Holder had exercised this Warrant immediately prior to the record date related to such subdivision or combination and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant; and c. In case of a capital reorganization, merger (except a merger in which the Company is the surviving corporation), or the sale of all or substantially all of the properties and assets of the Company (each of the foregoing is sometimes hereinafter referred to as a "Reorganization"), the securities or any other property to be received upon exercise of this Warrant shall be the securities and other property which would have been held by the Holder after consummation of such Reorganization if the Holder had exercised this Warrant immediately prior to the record date related to such Reorganization and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant. Notwithstanding anything herein to the contrary, in the case of a Reorganization which qualifies for adjustment under this subparagraph (c), the Holder must exercise this Warrant (or agree to exercise this Warrant) within ninety (90) days after written notice of the execution of the definitive agreement with the acquiror is delivered by the Company or the acquiror to the Holder. 5. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be adjusted pursuant to Paragraph 4 hereof, the Company shall issue a certificate signed by its chief financial officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price or Prices after giving effect to such adjustment, and shall cause copies of such certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant at the address specified in Paragraph 10(c) hereof, or at any address provided to the Company in writing by the Holder of this Warrant. 6. FRACTIONAL SHARES. No fractional shares of Common Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect. 7. COMPLIANCE WITH SECURITIES ACT-, NON-TRANSFERABILITY OF WARRANT-, DISPOSITION OF SHARES OF COMMON STOCK. COMPLIANCE WITH SECURITIES ACT. The Holder of this Warrant, by acceptance hereof, agrees that this Warrant and the shares of Common Stock to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warrant or any shares of Common Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock so purchased are being acquired for investment and not with a view toward distribution or resale. This Warrant and all shares of Common Stock issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: "THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS." 8. REGISTRATION OF SHARES OF COMMON STOCK UNDERLYING WARRANTS. 8.1 REGISTRATION. The Company shall use reasonable efforts to prepare and file a registration statement (the "statement") under the Act, to the extent the Company can qualify to file such a statement, and thereafter continue to use its best efforts to make effective, a registration statement covering the shares of Warrant Stock issued or issuable pursuant to the Warrants requested to be sold by such Holders (Holders may only make the demand one time during the term of the Warrant), and in connection therewith shall advise the persons entitled thereto of their rights under Section 8 hereof. 8.2 NOTICE. In connection with the filing of a registration statement pursuant to this Section, the Company shall: (a) promptly notify such Holders as to the anticipated filing thereof and of all amendments thereto filed prior to the effective date of said registration statement which notice briefly describes the Holders' rights under this Section 8; (b) use its best efforts to include in such registration (and any related filing or qualification under applicable blue sky laws), and in any underwriting involved therein, all the shares of Warrant Stock specified in a written request or requests, made by any Holder and received by the Company within twenty (20) days after the written notice from the Company described in clause (a) above is mailed or delivered by the Company. Such written request may specify all or a part of a Holder's shares of Warrant Stock. (c) UNDERWRITING. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the written notice given pursuant to clause (a). In such event, the right of any Holder to registration pursuant to this Section 8 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's shares of Warrant Stock in the underwriting to the extent provided herein. All such Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. (d) notify such Holders promptly after it shall have -received notice of the time when the registration statement becomes effective or any supplement to any prospectus forming a part of the registration statement has been filed; (e) prepare and file without expense to such Holders any necessary amendment or supplement to such registration statement or prospectus as may be necessary to comply with Section 10(a)(3) of the Act or advisable in connection with the proposed distribution of the securities by such Holders; (f) take all reasonable steps to qualify the shares of Warrant Stock for sale under the securities or blue sky laws of states as such Holders may designate in writing and to register or obtain the approval of any federal or state authority which may be required in connection with the proposed distribution, except, in each case, in jurisdictions in which the Company must either qualify to do business or file a general consent to service of process as a condition to the qualification of such securities; (g) notify such Holders of any stop order suspending the effectiveness of the registration statement and use its reasonable best efforts to remove such stop order; (h) use its best efforts to keep such registration statement and prospectus effective for a period of five (5) years after its effective date; and (i) furnish to such Holders as soon as available, copies of any such registration statement and each preliminary or final prospectus and any supplement or amendment required to be prepared pursuant to the foregoing provisions of this Section 8, all in such quantities as such Holders may from time to time reasonably request. 9. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. Subject to the provisions of Section 7 hereof, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of shares of Warrant Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. 10. MISCELLANEOUS. (a) NO RIGHTS AS SHAREHOLDER. No Holder of the Warrant or Warrants shall be entitled to vote or receive dividends or be deemed the Holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant or Warrants shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. (b) REPLACEMENT. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of loss. theft or destruction, on delivery of any indemnity agreement or bond reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company, at its expense, will execute and deliver. in lieu of this Warrant, a new Warrant of like tenor. (c) NOTICE. Any notice given to either party under this Agreement shall be deemed to be given three (3) days after mailing, postage prepaid, addressed to such parry at the address as such party may provide to the other. (d) NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying, out of all the provisions in this Warrant. (e) GOVERNING Law. This Warrant shall be governed by and construed under the laws of the State of Colorado without regard to principles of conflicts of laws. Any action or proceeding brought by the Holder or the Company against the other arising out of or related to this Warrant shall be brought in a State or Federal Court of competent jurisdiction located in Denver, Colorado and the Holder and the Company hereby submit to the jurisdiction of such courts for the purposes of any such action or proceeding. (f) The Company shall at all times during the term of this Warrant reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of this Warrant. (g) This Warrant shall be binding upon the Company's successors and assigns. (h) The Holder agrees that he will comply with all applicable laws, rules and regulations of all Federal and State securities regulators including but not limited to the Securities and Exchange Commission, the National Association of Securities Dealers and applicable state securities regulators with respect to disclosure, filings and any other requirements resulting in any way from the issuance of this Warrant. IN WITNESS WHEREOF, the parties have signed this Warrant. DATED: As of May 5, 1997 DCX INC. /s/ Stephen Carreker -------------------------------------------- Stephen Carreker, President and CEO HOLDER: TRANSITION PARTNERS, LIMITED -------------------------------------------- W. Terrance Schreier, President EXHIBIT 1 NOTICE OF EXERCISE TO: DCX INC. 1. The undersigned hereby elects to purchase shares of Common Stock of DCX, INC. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full. 2. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: ------------------------------------ (Name) ------------------------------------ ------------------------------------ (Address) 3. The undersigned represents that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an Investment Representation Statement in the form attached as Exhibit A. EXHIBIT A INVESTMENT REPRESENTATION STATEMENT TO: DCX, INC. With respect to the shares of Common Stock ("Shares") of DCX, ---------------- INC. ("Company") which the undersigned ("Purchaser") has purchased from the Company today, the Purchaser hereby represents and warrants as follows: 1) The Purchaser acknowledges that he has received no formal prospectus or offer in memorandum describing the business and operations of the Company. He has, however, by virtue of his relationship with the Company, been given access to all information that he believes is material to his decision to purchase the Shares. The Purchaser has had the opportunity to ask questions of, and receive answers from, representatives of the Company concerning its business operations. Any questions raised by the Purchaser have been answered to his satisfaction. 2) The Shares are being acquired by the Purchaser for his account, for investment purposes only, and not with a view to the distribution or resale thereof. 3) No representations or promises have been made concerning the marketability or value of the Shares. The Purchaser understands that there is currently no market for the transfer of the Shares. The Purchaser further acknowledges that, because the Shares have not been registered under the Securities Act of 1933, or applicable state securities laws and cannot be resold unless and cannot be resold unless they are subsequently registered under said Act or applicable state securities laws, or an exemption from registration is available, the Purchaser must continue to bear the economic risk of his investment in the Shares for an indefinite period of time. Specifically, the Purchaser agrees that the Shares may not be transferred until the Company has received an opinion of counsel reasonably satisfactory to it that the proposed transfer will not violate federal or state securities laws. The Company has not agreed or represented to the Purchaser that the Shares will be purchased or redeemed from the Purchaser at any time in the future. The Purchaser further understands that a notation will be made on the appropriate records of the Company and on the stock certificate representing the Shares so that the transfers of Shares will not be effected on those records without compliance with the restrictions referred to above. Date: --------------------- ------------------------------ EX-4 3 WARRANT TO PURCHASE COMMON STOCK-TPL, EXHIBIT 4.5 THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND THIS WARRANT MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) FROM THE TRANSFEROR REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT. No. Warrant to Purchase 295,056 Shares ---------------- of Common Stock (subject to adjustment) Date: October 15, 1997 WARRANT TO PURCHASE COMMON STOCK OF DCX, INC. This certifies that, in consideration of value heretofore received by DCX, INC., a Colorado corporation (the "Company") receipt of which is hereby acknowledged, TRANSITION PARTNERS, LIMITED, 1942 Broadway, Suite 203, Boulder, CO 80302 ("Holder") is entitled to subscribe for and purchase up to 295,056 shares of fully paid and nonassessable Common Stock of the Company, at the price of $1.00 per share, as adjusted pursuant to Paragraph 4 hereof (the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein, the term "Common Stock" shall mean the Company's presently authorized Common Stock and any stock into which such Common Stock may hereafter be exchanged. 1. TERM. The purchase right represented by this Warrant is exercisable, in whole or in part at any time following the date hereof until JANUARY 14, 2002. 2. METHOD OF EXERCISE; PAYMENT: ISSUANCE OF NEW WARRANT. Subject to paragraph I hereof, the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly executed) at the principal office of the Company and by the payment to the Company, by either: (a) a check, of an amount equal to the then applicable Warrant Price per share multiplied by the number of shares of common stock then being purchased; or (b) that number of shares of common stock of the Company having a fair market value equal to the then applicable warrant price per share multiplied by the number of shares of common stock then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be delivered to the Holder hereof within five (5) business days and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof within such reasonable time. 3. STOCK FULLY PAID, RESERVATION OF SHARES. All Common Stock which may be issued upon the exercise of the rights represented by this Warrant ("Warrant Stock") will, upon issuance, be fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. If there shall be any change described in sub-paragraphs (a), (b) or (c) below, the aggregate Warrant Price shall remain unchanged but the number of shares covered by this Warrant shall in each instance be adjusted as follows: a. If a share dividend is declared on the Common Stock of the Company, the number of shares of Common Stock subject to this Warrant shall be increased by the number of shares which would have been issuable to the Holder if such Holder had exercised this Warrant immediately prior to the record date related to the declaration and payment of such share dividend; b. If an increase or decrease is effected in the number of outstanding shares of Common Stock by reason of subdivision or combination of such shares, the number of shares of Common Stock subject to this Warrant shall equal the number of shares which would have been held by the Holder after consummation of such combination or subdivision if the Holder had exercised this Warrant immediately prior to the record date related to such subdivision or combination and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant; and c. In case of a capital reorganization, merger (except a merger in which the Company is the surviving corporation), or the sale of all or substantially all of the properties and assets of the Company (each of the foregoing is sometimes hereinafter referred to as a "Reorganization"), the securities or any other property to be received upon exercise of this Warrant shall be the securities and other property which would have been held by the Holder after consummation of such Reorganization if the Holder had exercised this Warrant immediately prior to the record date related to such Reorganization and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant. Notwithstanding anything herein to the contrary, in the case of a Reorganization which qualifies for adjustment under this subparagraph (c), the Holder must exercise this Warrant (or agree to exercise this Warrant) within ninety (90) days after written notice of the execution of the definitive agreement with the acquiror is delivered by the Company or the acquiror to the Holder. 5. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be adjusted pursuant to Paragraph 4 hereof, the Company shall issue a certificate signed by its chief financial officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price or Prices after giving effect to such adjustment, and shall cause copies of such certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant at the address specified in Paragraph 10(c) hereof, or at any address provided to the Company in writing by the Holder of this Warrant. 6. FRACTIONAL SHARES. No fractional shares of Common Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect. 7. COMPLIANCE WITH SECURITIES ACT-, NON-TRANSFERABILITY OF WARRANT-, DISPOSITION OF SHARES OF COMMON STOCK. COMPLIANCE WITH SECURITIES ACT. The Holder of this Warrant, by acceptance hereof, agrees that this Warrant and the shares of Common Stock to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warrant or any shares of Common Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock so purchased are being acquired for investment and not with a view toward distribution or resale. This Warrant and all shares of Common Stock issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: "THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS." 8. REGISTRATION OF SHARES OF COMMON STOCK UNDERLYING WARRANTS. 8.1 REGISTRATION. The Company shall use reasonable efforts to prepare and file a registration statement (the "statement") under the Act, to the extent the Company can qualify to file such a statement, and thereafter continue to use its best efforts to make effective, a registration statement covering the shares of Warrant Stock issued or issuable pursuant to the Warrants requested to be sold by such Holders (Holders may only make the demand one time during the term of the Warrant), and in connection therewith shall advise the persons entitled thereto of their rights under Section 8 hereof. 8.2 NOTICE. In connection with the filing of a registration statement pursuant to this Section, the Company shall: (a) promptly notify such Holders as to the anticipated filing thereof and of all amendments thereto filed prior to the effective date of said registration statement which notice briefly describes the Holders' rights under this Section 8; (b) use its best efforts to include in such registration (and any related filing or qualification under applicable blue sky laws), and in any underwriting involved therein, all the shares of Warrant Stock specified in a written request or requests, made by any Holder and received by the Company within twenty (20) days after the written notice from the Company described in clause (a) above is mailed or delivered by the Company. Such written request may specify all or a part of a Holder's shares of Warrant Stock. (c) UNDERWRITING. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the written notice given pursuant to clause (a). In such event, the right of any Holder to registration pursuant to this Section 8 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's shares of Warrant Stock in the underwriting to the extent provided herein. All such Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. (d) notify such Holders promptly after it shall have -received notice of the time when the registration statement becomes effective or any supplement to any prospectus forming a part of the registration statement has been filed; (e) prepare and file without expense to such Holders any necessary amendment or supplement to such registration statement or prospectus as may be necessary to comply with Section 10(a)(3) of the Act or advisable in connection with the proposed distribution of the securities by such Holders; (f) take all reasonable steps to qualify the shares of Warrant Stock for sale under the securities or blue sky laws of states as such Holders may designate in writing and to register or obtain the approval of any federal or state authority which may be required in connection with the proposed distribution, except, in each case, in jurisdictions in which the Company must either qualify to do business or file a general consent to service of process as a condition to the qualification of such securities; (g) notify such Holders of any stop order suspending the effectiveness of the registration statement and use its reasonable best efforts to remove such stop order; (h) use its best efforts to keep such registration statement and prospectus effective for a period of five (5) years after its effective date; and (i) furnish to such Holders as soon as available, copies of any such registration statement and each preliminary or final prospectus and any supplement or amendment required to be prepared pursuant to the foregoing provisions of this Section 8, all in such quantities as such Holders may from time to time reasonably request. 9. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. Subject to the provisions of Section 7 hereof, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of shares of Warrant Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. 10. MISCELLANEOUS. (a) NO RIGHTS AS SHAREHOLDER. No Holder of the Warrant or Warrants shall be entitled to vote or receive dividends or be deemed the Holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant or Warrants shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. (b) REPLACEMENT. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of loss. theft or destruction, on delivery of any indemnity agreement or bond reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company, at its expense, will execute and deliver. in lieu of this Warrant, a new Warrant of like tenor. (c) NOTICE. Any notice given to either party under this Agreement shall be deemed to be given three (3) days after mailing, postage prepaid, addressed to such parry at the address as such party may provide to the other. (d) NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying, out of all the provisions in this Warrant. (e) GOVERNING Law. This Warrant shall be governed by and construed under the laws of the State of Colorado without regard to principles of conflicts of laws. Any action or proceeding brought by the Holder or the Company against the other arising out of or related to this Warrant shall be brought in a State or Federal Court of competent jurisdiction located in Denver, Colorado and the Holder and the Company hereby submit to the jurisdiction of such courts for the purposes of any such action or proceeding. (f) The Company shall at all times during the term of this Warrant reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of this Warrant. (g) This Warrant shall be binding upon the Company's successors and assigns. (h) The Holder agrees that he will comply with all applicable laws, rules and regulations of all Federal and State securities regulators including but not limited to the Securities and Exchange Commission, the National Association of Securities Dealers and applicable state securities regulators with respect to disclosure, filings and any other requirements resulting in any way from the issuance of this Warrant. IN WITNESS WHEREOF, the parties have signed this Warrant. DATED: As of October 15, 1997 DCX INC. Frederick G. Beisser -------------------------------------------- Frederick G. Beisser, Vice-President Finance and Administration HOLDER: TRANSITION PARTNERS, LIMITED W. Terrance Schreier -------------------------------------------- W. Terrance Schreier, President EXHIBIT 1 NOTICE OF EXERCISE TO: DCX INC. 1. The undersigned hereby elects to purchase shares of Common Stock of DCX, INC. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full. 2. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: ------------------------------------ (Name) ------------------------------------ ------------------------------------ (Address) 3. The undersigned represents that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an Investment Representation Statement in the form attached as Exhibit A. EXHIBIT A INVESTMENT REPRESENTATION STATEMENT TO: DCX, INC. With respect to the shares of Common Stock ("Shares") of DCX, INC. ("Company") which the undersigned ("Purchaser") has purchased from the Company today, the Purchaser hereby represents and warrants as follows: 1) The Purchaser acknowledges that he has received no formal prospectus or offer in memorandum describing the business and operations of the Company. He has, however, by virtue of his relationship with the Company, been given access to all information that he believes is material to his decision to purchase the Shares. The Purchaser has had the opportunity to ask questions of, and receive answers from, representatives of the Company concerning its business operations. Any questions raised by the Purchaser have been answered to his satisfaction. 2) The Shares are being acquired by the Purchaser for his account, for investment purposes only, and not with a view to the distribution or resale thereof. 3) No representations or promises have been made concerning the marketability or value of the Shares. The Purchaser understands that there is currently no market for the transfer of the Shares. The Purchaser further acknowledges that, because the Shares have not been registered under the Securities Act of 1933, or applicable state securities laws and cannot be resold unless and cannot be resold unless they are subsequently registered under said Act or applicable state securities laws, or an exemption from registration is available, the Purchaser must continue to bear the economic risk of his investment in the Shares for an indefinite period of time. Specifically, the Purchaser agrees that the Shares may not be transferred until the Company has received an opinion of counsel reasonably satisfactory to it that the proposed transfer will not violate federal or state securities laws. The Company has not agreed or represented to the Purchaser that the Shares will be purchased or redeemed from the Purchaser at any time in the future. The Purchaser further understands that a notation will be made on the appropriate records of the Company and on the stock certificate representing the Shares so that the transfers of Shares will not be effected on those records without compliance with the restrictions referred to above. Date: --------------------- ------------------------------ EX-4 4 LETTER AGREEMENT, EXHIBIT 4.6 Transition Partners Limited 1942 Broadway, Suite 303 Boulder, Colorado l80302 Tel: (303) 938-6834 Fax: (303) 938-6850 VIA FACSIMILE (303) 688-6106 January 9, 1997 Stephen Carreker President and Director DCX, Inc. 3002 N. State Highway 83 Franktown, CO 80116-0569 Dear Stephen: You have asked Transition Partners, Limited ("TPL") to submit a definitive proposal describing the basis on which it would serve as a corporate development and financial advisor to DCX, Inc. ("the Company") for an initial period of twelve (12) months, commencing January 1, 1997 through December 31, 1997. This letter will serve to advance your request for such a proposal and confirm TPL's engagement as the Company's advisor in this regard. CORPORATE DEVELOPMENT AND FINANCIAL ADVISORY SERVICES TPL will be pleased to furnish general corporate development, as well as financial and investment banking, services to the Company to assist it in the implementation of a fiscal action plan geared to enhance the Company's financial condition and performance as we have previously discussed. As its financial and corporate development advisor, TPL will act on behalf of the Company and will provide independent advice and counsel on issues of a financial nature pertaining to this engagement. TPL will report directly to you and will keep you apprised of our activities as you deem appropriate. In carrying out this assignment, TPL will coordinate its efforts and work closely with other key members of management and professionals retained to assist you and the Company in its overall program to achieve various corporate objectives. The services and activities TPL anticipates performing over the course of this engagement for the Company can be generally described as follows: STRATEGIC PLANNING COORDINATION TPL will coordinate an in-depth review of the Company's existing business and strategic operating plan. TPL will not attempt to rewrite or recreate this plan, but may provide suggestions for modification to it. In this connection, TPL will interface with all current and future potential resources of the Company as directed by you. CAPITAL FORMATION PLAN As part of the foregoing, strategic operating plan process, TPL will particularly focus upon the creation of a strategic capital formation plan for the Company. This may be used by the Company in connection with procurement of capital from debt, quasi-debt, equity, and other sources, including corporate strategic alliances. As discussed below, capital may be obtained through such strategic alliances and third party relationships as ultimately determined by the Company with the assistance of TPL. IMPLEMENTATION OF CAPITAL PLAN TPL will directly assist the Company in implementing the capital plan as determined by the Company. This may include assisting the Company in its engagement of investment bankers, merchant bankers, or other financial intermediaries and advisors on a selective basis and as required by the Company in consultation specifically with you. TPL is prepared to direct the capital formation process and requests that it be compensated on a performance basis as TPL is directed by you, as noted later in this engagement letter. Finally, TPL would serve as a financial advisor in the execution of this strategy and implementation of the capital raising effort required to sustain and progress the Company toward its short term, intermediate, and long term goals. CORPORATE DEVELOPMENT AND MERGER/ACQUISITION SERVICES TPL will serve as an advisor to the Company in connection with strategic and global corporate objectives as you so request. As directed by you, TPL will provide merger and acquisition services (research, search, contact, due diligence, deal structure proposal, negotiations, financing proposal, and close) related to the Company's goal of completing one to three (1-3) strategic acquisitions during the period coterminous with the term of this engagement. In addition, TPL will provide executory services related to the accomplishment of these strategic and global objectives including the creation of strategic alliance strategies and implementation of such relationships, as well as licensing, technology transfer, marketing, and/or distribution arrangements which will allow the Company to fully exploit its technology and services throughout the U.S. and on an international basis. The possible services and tasks listed above are reflective of the overall commitment TPL is prepared to make to assist the Company through its next critical growth phase. The list is representative of the type of work that will have to be done by TPL, in order for the Company to achieve its business objectives. It is based on TPL'S present understanding of the Company's circumstances, requirements and goals and, as such, is subject to modification and adjustment in the -2- event that those factors change. Many of the activities outlined are interrelated, subject to iteration and continuing in nature, to be sure. Consequently, significant effort and experience will be required to organize, sequence and coordinate them to best advantage of the Company. We believe TPL possesses such expertise and is prepared to dedicate the time and resources required to do the job properly and professionally on a "best efforts" basis. To this end, the Company and TPL have developed a suggested and agreeable possible course of action which is attached to this Agreement. COMPENSATION ARRANGEMENTS In consideration for acting as financial advisor to the Company in this engagement, TPL proposes to receive a monthly retainer of six thousand, five hundred dollars ($6,500) throughout the duration of our engagement. The first month retainer will be due and payable to TPL at the execution of this Agreement with the remaining monthly retainers due on the first day of each successive month of our engagement. In addition, because of the anticipated intensity of commitment within this contemplated assignment and relationship, TPL would also request that it be granted a warrant to acquire up to five percent (5%) of the outstanding shares of the common stock of the Company as of the date of our engagement (the "Warrant"). The exercise price of the Warrant shall be fixed at $1.00 per share. The Warrant will expire five (5) years from the effective date of this engagement. In addition, the Warrant will be granted to TPL on a non-diluted basis, such that any increase or decrease in the number of shares of common stock of the Company which occurs during the term of the Warrant will cause the Warrant to be proportionately increased or decreased as the case may be. Other details pertaining to the Warrant will be delineated in a formal agreement between the Company and TPL to be separately agreed-upon by the Company and TPL. CONTINGENT ADVISORY FEES AND EXPENSE REIMBURSEMENT Because the Company has requested TPL to directly procure capital on its behalf, TPL will charge the Company contingent advisory fees tied to financing transactions arising in connection with this engagement. Fees for such financing (the "Success Fee"), payable to TPL by the Company, will be based upon a formula which is equal to five percent (5%) of the total capital. whether debt and/or equity of any kind, procured for the Company, by TPL. In addition, TPL will charge the Company Success Fees based upon this formula for any merger or acquisition transaction arising in connection with this engagement. Similarly, if the Company requests additional assistance from TPL to procure one or more strategic alliances on its behalf, TPL would also be pleased to so assist the Company. Strategic alliance efforts, undertaken by TPL, resulting in any kind of exchange (receipt or procurement of any type of capital from whatever source shall also result in the compensation of TPL by the Company utilizing the aforementioned Success Fee formula. The Company agrees to pay all Success Fees to TPL in cash at the closing of each transaction for which TPL is due to be compensated under this engagement. Finally, it is also contemplated that reimbursement for all reasonably incurred out-of-pocket expenses incurred by TPL in connection with any aspect of this engagement will be paid promptly by the Company to TPL as submitted. -3- BOARD OF DIRECTORS In connection with this engagement, a representative of TPL shall be designated as an advisor to the Company's Board of Directors for a period coterminous with the term of this engagement. Further, TPL will participate with the Company's Board of Directors in the identification, screening, and proposal of one to three (1-3) new "outsider," non-employee director candidates. CONFIDENTIALITY In connection with TPL's services, the Company will furnish (or cause to be furnished) to TPL such information and data as is within the Company's possession or control relating to the Company as TPL reasonably deems necessary or reasonably requests in order to complete its assignments for the Company. TPL will keep and maintain all non-public information which it receives or develops concerning the Company confidential and will disclose such information only as is required in its reasonable judgement by this assignment or is required by law. The Company recognizes and confirms that in the performance of its services hereunder: (i) TPL may rely upon information provided by the Company without independent verification; (ii) TPL shall incur no liability as a result of such reliance; and (iii) TPL does not assume responsibility for the accuracy or completeness of such information, whether or not it makes an independent verification. TPL will cause any third party that reviews the Company's information to sign and execute a Confidentiality Statement before delivering such information to the third party as circumstances may require. INDEMNIFICATION AND LIMITATION OF LIABILITY In consideration of TPL's agreement to act on the Company's behalf in connection with this advisor engagement, the Company agrees to indemnify and hold harmless TPL and its officers, directors, agents and employees against any loss, claim, damage, liability, or expense (including reasonable counsel fees and expenses) arising out of or to which TPL may become subject in connection with this engagement. The Company agrees to promptly reimburse TPL for any legal or other expenses as incurred in connection with investigation or defending any such loss, claim, damage or liability (or action in respect thereof). In no event shall TPL be liable for acting in accordance with instructions from the Company or any entity authorized to act on its behalf. In addition, should TPL be required to institute any legal proceeding against the Company for any reason in accordance with any term or condition contained within this arrangement, TPL shall be entitled to recover its costs and legal fees which it incurs in connection with such legal proceeding. EFFECTIVENESS AND TERMINATION As recited above, the effective date of this engagement shall be January l, 1997. This engagement (except as to matters relating to the Warrant) will terminate automatically on December 31, 1997, unless otherwise extended by mutual written agreement. In the event of such automatic termination, -4- TPL shall be entitled to all compensation due through the date of termination, including base and contingent advisory fees as specified earlier in this letter, all warrants, as well as all unpaid out-of pocket expenses. TPL shall also be entitled to contingent advisory fees, as outlined above, for transactions originating during the course of this engagement and completed within twelve months from the date of automatic termination. MISCELLANEOUS This agreement may not be amended or modified except in writing and shall be governed and construed in accordance with the laws of the State of Colorado. The warrant arrangement, as well as the indemnity and reimbursement provisions contained herein, shall remain in full force and effect in the event of termination. The invalidity, legality or enforceability of any provision of this agreement shall in no way affect the validity, legality or enforceability of any other provision. If any provision is held to be unenforceable as a matter of law, the other provisions shall not be affected thereby and shall remain in full force and effect. Please confirm that the foregoing proposal is in accordance with our understanding and is acceptable to you by signing and returning to me the enclosed duplicate original engagement letter. We look forward to a successful relationship, culminating in the attainment of these mutually desirable objectives on behalf of the Company. Sincerely, Agreed to and accepted: TRANSITION PARTNERS, LIMITED DCX, INC. By: W. Terrance Schreier -------------------------------- By: Stephen Carreker W. Terrance Schreier ------------------------------ Managing Director and President Stephen Carreker President and Director By: Gene R. Copeland -------------------------------- January 13, 1997 Gene Copeland Managing Director EX-4 5 WARRANT TO PURCHASE-COPELAND, EXHIBIT 4.7 THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND THIS WARRANT MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) FROM THE TRANSFEROR REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT. No. Warrant to Purchase 111,260 Shares ------------ of Common Stock (subject to adjustment) Date: January 15, 1997 WARRANT TO PURCHASE COMMON STOCK OF DCX, INC. This certifies that, in consideration of value heretofore received by DCX, INC., a Colorado corporation (the "Company") receipt of which is hereby acknowledged, COPELAND CONSULTING GROUP, INC., 5373 Lookout Ridge Drive, Boulder, CO 80301 ("Holder") is entitled to subscribe for and purchase up to 111,260 shares of fully paid and nonassessable Common Stock of the Company, at the price of $1.00 per share, as adjusted pursuant to Paragraph 4 hereof (the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein, the term "Common Stock" shall mean the Company's presently authorized Common Stock and any stock into which such Common Stock may hereafter be exchanged. 1. TERM. The purchase right represented by this Warrant is exercisable, in whole or in part at any time following the date hereof until JANUARY 14, 2002. 2. METHOD OF EXERCISE; PAYMENT: ISSUANCE OF NEW WARRANT. Subject to paragraph I hereof, the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly executed) at the principal office of the Company and by the payment to the Company, by either: (a) a check, of an amount equal to the then applicable Warrant Price per share multiplied by the number of shares of common stock then being purchased; or (b) that number of shares of common stock of the Company having a fair market value equal to the then applicable warrant price per share multiplied by the number of shares of common stock then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be delivered to the Holder hereof within five (5) business days and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof within such reasonable time. 3. STOCK FULLY PAID, RESERVATION OF SHARES. All Common Stock which may be issued upon the exercise of the rights represented by this Warrant ("Warrant Stock") will, upon issuance, be fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. If there shall be any change described in sub-paragraphs (a), (b) or ( c) below, the aggregate Warrant Price shall remain unchanged but the number of shares covered by this Warrant shall in each instance be adjusted as follows: a. If a share dividend is declared on the Common Stock of the Company, the number of shares of Common Stock subject to this Warrant shall be increased by the number of shares which would have been issuable to the Holder if such Holder had exercised this Warrant immediately prior to the record date related to the declaration and payment of such share dividend; b. If an increase or decrease is effected in the number of outstanding shares of Common Stock by reason of subdivision or combination of such shares, the number of shares of Common Stock subject to this Warrant shall equal the number of shares which would have been held by the Holder after consummation of such combination or subdivision if the Holder had exercised this Warrant immediately prior to the record date related to such subdivision or combination and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant; and c. In case of a capital reorganization, merger (except a merger in which the Company is the surviving corporation), or the sale of all or substantially all of the properties and assets of the Company (each of the foregoing is sometimes hereinafter referred to as a "Reorganization"), the securities or any other property to be received upon exercise of this Warrant shall be the securities and other property which would have been held by the Holder after consummation of such Reorganization if the Holder had exercised this Warrant immediately prior to the record date related to such Reorganization and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant. Notwithstanding anything herein to the contrary, in the case of a Reorganization which qualifies for adjustment under this subparagraph ( c), the Holder must exercise this Warrant (or agree to exercise this Warrant) within ninety (90) days after written notice of the execution of the definitive agreement with the acquiror is delivered by the Company or the acquiror to the Holder. 5. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be adjusted pursuant to Paragraph 4 hereof, the Company shall issue a certificate signed by its chief financial officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price or Prices after giving effect to such adjustment, and shall cause copies of such certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant at the address specified in Paragraph 10(c) hereof, or at any address provided to the Company in writing by the Holder of this Warrant. 6. FRACTIONAL SHARES. No fractional shares of Common Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect. 7. COMPLIANCE WITH SECURITIES ACT-, NON-TRANSFERABILITY OF WARRANT-, DISPOSITION OF SHARES OF COMMON STOCK. COMPLIANCE WITH SECURITIES ACT. The Holder of this Warrant, by acceptance hereof, agrees that this Warrant and the shares of Common Stock to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warrant or any shares of Common Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock so purchased are being acquired for investment and not with a view toward distribution or resale. This Warrant and all shares of Common Stock issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: "THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS." 8. REGISTRATION OF SHARES OF COMMON STOCK UNDERLYING WARRANTS. 8.1 REGISTRATION. The Company shall use reasonable efforts to prepare and file a registration statement (the "statement") under the Act, to the extent the Company can qualify to file such a statement, and thereafter continue to use its best efforts to make effective, a registration statement covering the shares of Warrant Stock issued or issuable pursuant to the Warrants requested to be sold by such Holders (Holders may only make the demand one time during the term of the Warrant), and in connection therewith shall advise the persons entitled thereto of their rights under Section 8 hereof. 8.2 NOTICE. In connection with the filing of a registration statement pursuant to this Section, the Company shall: (a) promptly notify such Holders as to the anticipated filing thereof and of all amendments thereto filed prior to the effective date of said registration statement which notice briefly describes the Holders' rights under this Section 8; (b) use its best efforts to include in such registration (and any related filing or qualification under applicable blue sky laws), and in any underwriting involved therein, all the shares of Warrant Stock specified in a written request or requests, made by any Holder and received by the Company within twenty (20) days after the written notice from the Company described in clause (a) above is mailed or delivered by the Company. Such written request may specify all or a part of a Holder's shares of Warrant Stock. (c) UNDERWRITING. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the written notice given pursuant to clause (a). In such event, the right of any Holder to registration pursuant to this Section 8 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's shares of Warrant Stock in the underwriting to the extent provided herein. All such Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. (d) notify such Holders promptly after it shall have -received notice of the time when the registration statement becomes effective or any supplement to any prospectus forming a part of the registration statement has been filed; (e) prepare and file without expense to such Holders any necessary amendment or supplement to such registration statement or prospectus as may be necessary to comply with Section 10(a)(3) of the Act or advisable in connection with the proposed distribution of the securities by such Holders; (f) take all reasonable steps to qualify the shares of Warrant Stock for sale under the securities or blue sky laws of states as such Holders may designate in writing and to register or obtain the approval of any federal or state authority which may be required in connection with the proposed distribution, except, in each case, in jurisdictions in which the Company must either qualify to do business or file a general consent to service of process as a condition to the qualification of such securities; (g) notify such Holders of any stop order suspending the effectiveness of the registration statement and use its reasonable best efforts to remove such stop order; (h) use its best efforts to keep such registration statement and prospectus effective for a period of five (5) years after its effective date; and (i) furnish to such Holders as soon as available, copies of any such registration statement and each preliminary or final prospectus and any supplement or amendment required to be prepared pursuant to the foregoing provisions of this Section 8, all in such quantities as such Holders may from time to time reasonably request. 9. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. Subject to the provisions of Section 7 hereof, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of shares of Warrant Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. 10. MISCELLANEOUS. (a) NO RIGHTS AS SHAREHOLDER. No Holder of the Warrant or Warrants shall be entitled to vote or receive dividends or be deemed the Holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant or Warrants shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. (b) REPLACEMENT. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of loss. theft or destruction, on delivery of any indemnity agreement or bond reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company, at its expense, will execute and deliver. in lieu of this Warrant, a new Warrant of like tenor. (c) NOTICE. Any notice given to either party under this Agreement shall be deemed to be given three (3) days after mailing, postage prepaid, addressed to such parry at the address as such party may provide to the other. (d) NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying, out of all the provisions in this Warrant. (e) GOVERNING Law. This Warrant shall be governed by and construed under the laws of the State of Colorado without regard to principles of conflicts of laws. Any action or proceeding brought by the Holder or the Company against the other arising out of or related to this Warrant shall be brought in a State or Federal Court of competent jurisdiction located in Denver, Colorado and the Holder and the Company hereby submit to the jurisdiction of such courts for the purposes of any such action or proceeding. (f) The Company shall at all times during the term of this Warrant reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of this Warrant. (g) This Warrant shall be binding upon the Company's successors and assigns. (h) The Holder agrees that he will comply with all applicable laws, rules and regulations of all Federal and State securities regulators including but not limited to the Securities and Exchange Commission, the National Association of Securities Dealers and applicable state securities regulators with respect to disclosure, filings and any other requirements resulting in any way from the issuance of this Warrant. IN WITNESS WHEREOF, the parties have signed this Warrant. DATED: As of May 5, 1997 DCX INC. G. Stephen Carreker ---------------------------------------------- G. Stephen Carreker, President and Chief Executive Officer HOLDER: COPELAND CONSULTING GROUP, INC. Gene R. Copeland ---------------------------------------------- Gene R. Copeland, President EXHIBIT 1 NOTICE OF EXERCISE TO: DCX INC. 1. The undersigned hereby elects to purchase shares of Common ---------- Stock of DCX, INC. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full. 2. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: ------------------------------------ (Name) ------------------------------------ ------------------------------------ (Address) 3. The undersigned represents that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an Investment Representation Statement in the form attached as Exhibit A. EXHIBIT A INVESTMENT REPRESENTATION STATEMENT TO: DCX, INC. With respect to the shares of Common Stock ("Shares") of DCX, --------------- INC. ("Company") which the undersigned ("Purchaser") has purchased from the Company today, the Purchaser hereby represents and warrants as follows: 1) The Purchaser acknowledges that he has received no formal prospectus or offer in memorandum describing the business and operations of the Company. He has, however, by virtue of his relationship with the Company, been given access to all information that he believes is material to his decision to purchase the Shares. The Purchaser has had the opportunity to ask questions of, and receive answers from, representatives of the Company concerning its business operations. Any questions raised by the Purchaser have been answered to his satisfaction. 2) The Shares are being acquired by the Purchaser for his account, for investment purposes only, and not with a view to the distribution or resale thereof. 3) No representations or promises have been made concerning the marketability or value of the Shares. The Purchaser understands that there is currently no market for the transfer of the Shares. The Purchaser further acknowledges that, because the Shares have not been registered under the Securities Act of 1933, or applicable state securities laws and cannot be resold unless and cannot be resold unless they are subsequently registered under said Act or applicable state securities laws, or an exemption from registration is available, the Purchaser must continue to bear the economic risk of his investment in the Shares for an indefinite period of time. Specifically, the Purchaser agrees that the Shares may not be transferred until the Company has received an opinion of counsel reasonably satisfactory to it that the proposed transfer will not violate federal or state securities laws. The Company has not agreed or represented to the Purchaser that the Shares will be purchased or redeemed from the Purchaser at any time in the future. The Purchaser further understands that a notation will be made on the appropriate records of the Company and on the stock certificate representing the Shares so that the transfers of Shares will not be effected on those records without compliance with the restrictions referred to above. Date: ----------------------- ------------------------------ EX-4 6 WARRANT TO PURCHASE - COPELAND, EXHIBIT 4.8 THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND THIS WARRANT MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT OR THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) FROM THE TRANSFEROR REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT. No. Warrant to Purchase 295,056 Shares -------------- of Common Stock (subject to adjustment) Date: October 15, 1997 WARRANT TO PURCHASE COMMON STOCK OF DCX, INC. This certifies that, in consideration of value heretofore received by DCX, INC., a Colorado corporation (the "Company") receipt of which is hereby acknowledged, COPELAND CONSULTING GROUP, INC., 5373 Lookout Ridge Drive, Boulder, CO 80301 ("Holder") is entitled to subscribe for and purchase up to 295,056 shares of fully paid and nonassessable Common Stock of the Company, at the price of $1.00 per share, as adjusted pursuant to Paragraph 4 hereof (the "Warrant Price"), subject to the provisions and upon the terms and conditions hereinafter set forth. As used herein, the term "Common Stock" shall mean the Company's presently authorized Common Stock and any stock into which such Common Stock may hereafter be exchanged. 1. TERM. The purchase right represented by this Warrant is exercisable, in whole or in part at any time following the date hereof until JANUARY 14, 2002. 2. METHOD OF EXERCISE; PAYMENT: ISSUANCE OF NEW WARRANT. Subject to paragraph I hereof, the purchase right represented by this Warrant may be exercised by the holder hereof, in whole or in part, by the surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly executed) at the principal office of the Company and by the payment to the Company, by either: (a) a check, of an amount equal to the then applicable Warrant Price per share multiplied by the number of shares of common stock then being purchased; or (b) that number of shares of common stock of the Company having a fair market value equal to the then applicable warrant price per share multiplied by the number of shares of common stock then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of stock so purchased shall be delivered to the Holder hereof within five (5) business days and, unless this Warrant has been fully exercised or expired, a new Warrant representing the portion of the shares, if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof within such reasonable time. 3. STOCK FULLY PAID, RESERVATION OF SHARES. All Common Stock which may be issued upon the exercise of the rights represented by this Warrant ("Warrant Stock") will, upon issuance, be fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. If there shall be any change described in sub-paragraphs (a), (b) or ( c) below, the aggregate Warrant Price shall remain unchanged but the number of shares covered by this Warrant shall in each instance be adjusted as follows: a. If a share dividend is declared on the Common Stock of the Company, the number of shares of Common Stock subject to this Warrant shall be increased by the number of shares which would have been issuable to the Holder if such Holder had exercised this Warrant immediately prior to the record date related to the declaration and payment of such share dividend; b. If an increase or decrease is effected in the number of outstanding shares of Common Stock by reason of subdivision or combination of such shares, the number of shares of Common Stock subject to this Warrant shall equal the number of shares which would have been held by the Holder after consummation of such combination or subdivision if the Holder had exercised this Warrant immediately prior to the record date related to such subdivision or combination and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant; and c. In case of a capital reorganization, merger (except a merger in which the Company is the surviving corporation), or the sale of all or substantially all of the properties and assets of the Company (each of the foregoing is sometimes hereinafter referred to as a "Reorganization"), the securities or any other property to be received upon exercise of this Warrant shall be the securities and other property which would have been held by the Holder after consummation of such Reorganization if the Holder had exercised this Warrant immediately prior to the record date related to such Reorganization and the Holder held no other shares of Common Stock other than those deemed issued upon exercise of this Warrant. Notwithstanding anything herein to the contrary, in the case of a Reorganization which qualifies for adjustment under this subparagraph ( c), the Holder must exercise this Warrant (or agree to exercise this Warrant) within ninety (90) days after written notice of the execution of the definitive agreement with the acquiror is delivered by the Company or the acquiror to the Holder. 5. NOTICE OF ADJUSTMENTS. Whenever any Warrant Price shall be adjusted pursuant to Paragraph 4 hereof, the Company shall issue a certificate signed by its chief financial officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price or Prices after giving effect to such adjustment, and shall cause copies of such certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant at the address specified in Paragraph 10(c) hereof, or at any address provided to the Company in writing by the Holder of this Warrant. 6. FRACTIONAL SHARES. No fractional shares of Common Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Warrant Price then in effect. 7. COMPLIANCE WITH SECURITIES ACT-, NON-TRANSFERABILITY OF WARRANT-, DISPOSITION OF SHARES OF COMMON STOCK. COMPLIANCE WITH SECURITIES ACT. The Holder of this Warrant, by acceptance hereof, agrees that this Warrant and the shares of Common Stock to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warrant or any shares of Common Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock so purchased are being acquired for investment and not with a view toward distribution or resale. This Warrant and all shares of Common Stock issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: "THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS." 8. REGISTRATION OF SHARES OF COMMON STOCK UNDERLYING WARRANTS. 8.1 REGISTRATION. The Company shall use reasonable efforts to prepare and file a registration statement (the "statement") under the Act, to the extent the Company can qualify to file such a statement, and thereafter continue to use its best efforts to make effective, a registration statement covering the shares of Warrant Stock issued or issuable pursuant to the Warrants requested to be sold by such Holders (Holders may only make the demand one time during the term of the Warrant), and in connection therewith shall advise the persons entitled thereto of their rights under Section 8 hereof. 8.2 NOTICE. In connection with the filing of a registration statement pursuant to this Section, the Company shall: (a) promptly notify such Holders as to the anticipated filing thereof and of all amendments thereto filed prior to the effective date of said registration statement which notice briefly describes the Holders' rights under this Section 8; (b) use its best efforts to include in such registration (and any related filing or qualification under applicable blue sky laws), and in any underwriting involved therein, all the shares of Warrant Stock specified in a written request or requests, made by any Holder and received by the Company within twenty (20) days after the written notice from the Company described in clause (a) above is mailed or delivered by the Company. Such written request may specify all or a part of a Holder's shares of Warrant Stock. (c) UNDERWRITING. If the registration of which the Company gives notice is for a registered public offering involving an underwriting, the Company shall so advise the Holders as part of the written notice given pursuant to clause (a). In such event, the right of any Holder to registration pursuant to this Section 8 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's shares of Warrant Stock in the underwriting to the extent provided herein. All such Holders proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company. (d) notify such Holders promptly after it shall have -received notice of the time when the registration statement becomes effective or any supplement to any prospectus forming a part of the registration statement has been filed; (e) prepare and file without expense to such Holders any necessary amendment or supplement to such registration statement or prospectus as may be necessary to comply with Section 10(a)(3) of the Act or advisable in connection with the proposed distribution of the securities by such Holders; (f) take all reasonable steps to qualify the shares of Warrant Stock for sale under the securities or blue sky laws of states as such Holders may designate in writing and to register or obtain the approval of any federal or state authority which may be required in connection with the proposed distribution, except, in each case, in jurisdictions in which the Company must either qualify to do business or file a general consent to service of process as a condition to the qualification of such securities; (g) notify such Holders of any stop order suspending the effectiveness of the registration statement and use its reasonable best efforts to remove such stop order; (h) use its best efforts to keep such registration statement and prospectus effective for a period of five (5) years after its effective date; and (i) furnish to such Holders as soon as available, copies of any such registration statement and each preliminary or final prospectus and any supplement or amendment required to be prepared pursuant to the foregoing provisions of this Section 8, all in such quantities as such Holders may from time to time reasonably request. 9. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. Subject to the provisions of Section 7 hereof, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of shares of Warrant Stock purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. 10. MISCELLANEOUS. (a) NO RIGHTS AS SHAREHOLDER. No Holder of the Warrant or Warrants shall be entitled to vote or receive dividends or be deemed the Holder of Common Stock or any other securities of the Company which may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant or Warrants shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein. (b) REPLACEMENT. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of loss. theft or destruction, on delivery of any indemnity agreement or bond reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company, at its expense, will execute and deliver. in lieu of this Warrant, a new Warrant of like tenor. (c) NOTICE. Any notice given to either party under this Agreement shall be deemed to be given three (3) days after mailing, postage prepaid, addressed to such parry at the address as such party may provide to the other. (d) NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying, out of all the provisions in this Warrant. (e) GOVERNING Law. This Warrant shall be governed by and construed under the laws of the State of Colorado without regard to principles of conflicts of laws. Any action or proceeding brought by the Holder or the Company against the other arising out of or related to this Warrant shall be brought in a State or Federal Court of competent jurisdiction located in Denver, Colorado and the Holder and the Company hereby submit to the jurisdiction of such courts for the purposes of any such action or proceeding. (f) The Company shall at all times during the term of this Warrant reserve and keep available such number of shares of its Common Stock as will be sufficient to satisfy the requirements of this Warrant. (g) This Warrant shall be binding upon the Company's successors and assigns. (h) The Holder agrees that he will comply with all applicable laws, rules and regulations of all Federal and State securities regulators including but not limited to the Securities and Exchange Commission, the National Association of Securities Dealers and applicable state securities regulators with respect to disclosure, filings and any other requirements resulting in any way from the issuance of this Warrant. IN WITNESS WHEREOF, the parties have signed this Warrant. DATED: As of October 15, 1997 DCX INC. Frederick G. Beisser ---------------------------------------------- Frederick G. Beisser, Vice President, Finance HOLDER: COPELAND CONSULTING GROUP, INC. Gene R. Copeland ---------------------------------------------- Gene R. Copeland, President EXHIBIT 1 NOTICE OF EXERCISE TO: DCX INC. 1. The undersigned hereby elects to purchase shares of Common ---------- Stock of DCX, INC. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full. 2. Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below: ------------------------------------ (Name) ------------------------------------ ------------------------------------ (Address) 3. The undersigned represents that the aforesaid shares of Common Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an Investment Representation Statement in the form attached as Exhibit A. EXHIBIT A INVESTMENT REPRESENTATION STATEMENT TO: DCX, INC. With respect to the shares of Common Stock ("Shares") of DCX, --------------- INC. ("Company") which the undersigned ("Purchaser") has purchased from the Company today, the Purchaser hereby represents and warrants as follows: 1) The Purchaser acknowledges that he has received no formal prospectus or offer in memorandum describing the business and operations of the Company. He has, however, by virtue of his relationship with the Company, been given access to all information that he believes is material to his decision to purchase the Shares. The Purchaser has had the opportunity to ask questions of, and receive answers from, representatives of the Company concerning its business operations. Any questions raised by the Purchaser have been answered to his satisfaction. 2) The Shares are being acquired by the Purchaser for his account, for investment purposes only, and not with a view to the distribution or resale thereof. 3) No representations or promises have been made concerning the marketability or value of the Shares. The Purchaser understands that there is currently no market for the transfer of the Shares. The Purchaser further acknowledges that, because the Shares have not been registered under the Securities Act of 1933, or applicable state securities laws and cannot be resold unless and cannot be resold unless they are subsequently registered under said Act or applicable state securities laws, or an exemption from registration is available, the Purchaser must continue to bear the economic risk of his investment in the Shares for an indefinite period of time. Specifically, the Purchaser agrees that the Shares may not be transferred until the Company has received an opinion of counsel reasonably satisfactory to it that the proposed transfer will not violate federal or state securities laws. The Company has not agreed or represented to the Purchaser that the Shares will be purchased or redeemed from the Purchaser at any time in the future. The Purchaser further understands that a notation will be made on the appropriate records of the Company and on the stock certificate representing the Shares so that the transfers of Shares will not be effected on those records without compliance with the restrictions referred to above. Date: ----------------------- ------------------------------ EX-4 7 SPENCER EDWARDS WARRANT, EXHIBIT 4.9 SCHEDULE I THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT. Void after 5:00 p.m., Mountain Standard Time, on June 30, 1999. DCX, INC. COMMON STOCK PURCHASE WARRANT THIS CERTIFIES THAT, for value received, Spencer Edwards, Inc., a Colorado corporation is entitled to purchase the number of Warrant Shares (as that term is defined herein) of Common Stock of DCX, INC., a Colorado corporation, at a price of $2.25 per share ("Warrant Price"), subject to adjustments and all other terms and conditions set forth in this Warrant. 1. DEFINITIONS. As used herein, the following terms, unless the context otherwise requires, shall have the following meanings: (a) "Act" shall mean the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. (b) "Commission" shall mean the Securities and Exchange Commission, or any other Federal agency at the time administering the Act. (c) "Common Stock" shall mean shares of the Company's presently or subsequently authorized Common Stock. and any stock into which such Common Stock may hereafter be exchanged. (d) "Company" shall mean DCX, INC., a Colorado corporation, and any corporation which shall succeed to or assume the obligations of DCX, INC. under this Warrant. (e) "Date of Grant" shall he deemed June 19, 1997. (f) "Exercise Date" shall mean the effective date of the delivery of the Notice of Exercise pursuant to Sections 4 and 11 below. 1 (g) "Holder" shall mean any person who shall at the time be the registered holder of this Warrant. (h) "Shares" shall mean shares of the Company's Common Stock, as described in the Company's certificate of determination and articles of incorporation. (i) "Warrant Shares" shall mean 120,000 shares of the Company's Common Stock which this Warrant entitles the Holder to purchase, provided that the Warrant Shares have become vested as provided in Section 3 hereof. 2. ISSUANCE OF WARRANT AND CONSIDERATION THEREFOR. This Warrant is issued in consideration of the Holder's agreements set forth in that certain Investment Banking Services Agreement (the "Banking Agreement") of even date between Holder and the Company. 3. TERM AND ADJUSTMENT TO EXERCISE PRICE. (a) The purchase right represented by this Warrant is exercisable only during the period commencing upon the Date of Grant and ending on the earlier of (i) June 30, 1999 or (ii) concurrently with the closing date of a sale of all or substantially all of the Company's assets; a merger of the Company with or into another entity or of an entity with or into the Company following which the voting control of the surviving entity in the merger is ultimately controlled by persons who presently do not own beneficially or otherwise 10 percent or more of the issued and outstanding voting stock of the Company; or sale by existing shareholders of at least 51 percent of the presently issued and outstanding stock of the Company. The foregoing events are collectively referred to as a "change of control." After June 30, 1999 or a change of control, this Warrant shall be of no further force or effect. (b) The Warrant Shares shall vest in the Holder 100 percent immediately prior to a change of control. (c) Upon the expiration of the Termination Period, as defined in the Banking Agreement, this Warrant may only be exercised as to that portion of Warrant Shares which are then vested and shall be of no further force or effect, nor may it be exercised as to any Warrant Shares as which are not vested. All vesting shall terminate effective upon the expiration of the Termination Period, as defined in the Banking Agreement. (d) This Warrant shall otherwise vest as follows: NO. OF WARRANT SHARES DATE OF VESTING o 40,000 June 19, 1997 o 40,000 September 18, 1997* 2 o 40,000 December 17, 1997 * If Banker produces a research report within three months of the Date of grant, an additional 25,000 Warrants shall vest upon the approval by the Company of the research report. Company agrees that such approval shall not be unreasonably delayed. 4. METHOD OF EXERCISE AND PAYMENT. (a) METHOD OF EXERCISE. Subject to Section 3 hereof and compliance with all applicable Federal and state securities laws, the purchase right represented by this Warrant may be exercised, in whole or in part and from time to time, by the Holder by (i) surrender of this Warrant and delivery of the Notice of Exercise (the form of which is attached hereto as Exhibit A), duly executed, at the principal office of the Company and (ii) payment to the Company of an amount equal to the product of the then applicable Warrant Price multiplied by the number of Shares then being purchased pursuant to one of the payment methods permitted under Section 4(b) below. (b) METHOD OF PAYMENT. Payment shall be made either (1) by check made payable to the Company, (2) by cash, or (3) by wire transfer of United States funds for the account of the Company. (c) DELIVERY OF CERTIFICATE. In the event of any exercise of the purchase right represented by this Warrant, certificates for the Shares so purchased shall be delivered to the Holder within thirty (30) days of delivery of the Notice of Exercise and, unless this Warrant has been fully exercised or has expired, a new warrant representing the portion of the Shares with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder within such thirty (30) day period. (d) NO FRACTIONAL SHARES. No fractional shares shall be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the fair market value per Share as of the date of exercise. 5. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. In case the Company shall at any time after the Date of Grant (i) subdivide the outstanding shares of its common stock, (ii) combine the outstanding shares of its common stock into a smaller number of shares of common stock, or (iii) issue by reclassification of its shares of common stock other securities of the Company (including any such reclassification in connection with a consolidation or merger in which the Company is the surviving person), the number and kind of shares purchasable upon exercise of this Warrant outstanding immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive at the same aggregate Warrant Price the kind and number of shares of common stock or other securities to the Company which the holder would have owned or have been entitled to receive after the happening of any of the events described above had such Warrant been exercised in full immediately prior to the earlier of the happening of such event or any record date with respect 3 thereto. In the event of any adjustment of the total number of shares of common stock purchasable upon the exercise of this Warrant, the Warrant Price shall be adjusted to be the amount resulting from dividing the number of shares of common stock (including fractional shares of common stock) covered by this Warrant immediately after such adjustment into the total amount payable upon exercise of this Warrant in full immediately prior to such adjustment. An adjustment made pursuant to this Section 5 shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. Such adjustment shall be made successively whenever any event listed above shall occur. 6. COMPLIANCE WITH ACT; TRANSFERABILITY AND NEGOTIABILITY OF WARRANT; INVESTMENT INTENT. (a) COMPLIANCE WITH ACT. The Holder, by acceptance hereof agrees that this Warrant and the Shares to be issued upon the exercise hereof are being acquired solely for its own account (or a trust account if the Holder is a trust) and not as a nominee for any other party and not with a view toward the resale or distribution thereof and that it will not offer, sell or otherwise dispose of this Warrant or any Shares to be issued upon the exercise hereof except under circumstances which will not result in a violation of the Act. Upon the exercise of this Warrant, the Holder shall confirm in writing, in a form satisfactory to the Company, that the Shares so issued are being acquired solely for its own account (or a trust account if the Holder is a trust) and not as a nominee for any other party and not with a view toward resale or distribution thereof. This Warrant and the Shares to be issued upon the exercise hereof (unless registered under the Act) shall be imprinted with a legend in substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER TEE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT. In addition, this Warrant and the Shares to be issued upon the exercise hereof shall bear any legends required by the securities laws of any applicable states. Any legend endorsed on a certificate pursuant to this Section 6 shall be removed, and the Company shall issue a certificate without such legend to the Holder of such securities if (i) such securities are registered and sold under the Act and a prospectus meeting, the requirements of Section l0 of the Act is available, (ii) such securities are sold or may be sold in compliance with Rule 144(k), or (iii) at the request of any holder, if the holder shall have obtained an opinion of counsel at such holder's expense (which counsel may be counsel to the Company) reasonably acceptable to the Company to the effect that the securities proposed to be disposed of may lawfully be so disposed of 4 without registration, qualification or legend. (b) NO TRANSFER. Holder will not dispose of any of the Warrants or the Shares to be issued upon exercise of the Warrants other than (i) in conjunction with an effective registration statement for the Warrants and/or Warrant Shares under the Act, (ii) in compliance with Rule 144 promulgated under the Act or (iii) in compliance with any applicable exemption from registration under the Act and in compliance with applicable state, local or foreign securities laws. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144. (c) KNOWLEDGE AND EXPERIENCE. Holder (i) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of such Holder's prospective investment in the Warrants and the Shares to be issued upon exercise of the Warrants; (ii) has the ability to bear the economic risks of such Holder's prospective investment; (iii) has been furr1ished with and has had access to such information as such Holder has considered necessary to make a determination as to the purchase of the Warrants and the Shares to be issued upon exercise of the Warrants together with such additional information as is necessary to verify the accuracy of the information supplied; (iv) has had all questions which have been asked by such Holder satisfactorily answered by the Company; and (v) has not been offered the Warrants and the Shares to be issued upon exercise of the Warrants by any form of advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any such media. 7. REGISTRATION RIGHTS. (a) DEFINITIONS. For purposes of Section 7: (i) The terms "register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act of 1933, as amended (the "Act"), and the declaration or ordering of effectiveness of such registration statement or document; (ii) The term "Registrable Securities" means (i) the Common Stock issued to the Holder, and (ii) any Common Stock of the Company issued as (or issuable upon the conversation or exercise of any warrant right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of such shares of Common Stock, excluding in all cases, however, any Registrable Securities sold by a person in a transaction in which his rights under this Section 7 are not assigned; and (iii) The term "Holder" means any person owning Registrable Securities or any assignee thereof in accordance with Section 7(k) hereof, (b) REGISTRATION OF REGISTRABLE SECURITIES. If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company 5 for shareholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities on or before March 31, 1998, solely for each (other than a registration relating solely to the sale of securities to participants in the Company's stock plans or agreements, or a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), the Company shall, at such time, promptly give each Holder written notice of such registration. Upon the written request of each Holder given within twenty (90) days after mailing of such notice by the Company, the Company shall, subject to the provisions of Section 7(h), cause to be registered under the Act all of the Registrable Securities that each such Holder has requested to be registered; provided, however, that to participate in such registration a Holder must request that all Registrable Securities held by such Holder be included in such registration and provided further that the Holder of at least 50 percent of shares deemed Registrable Securities join in such request. (c) OBLIGATIONS OF THE COMPANY. Whenever required pursuant to Section 7(b) to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (i) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for the lesser of (i) one hundred twenty ( 120) days, or (i) the period of time in which the Holders of such securities have effected the distribution of their Registrable Securities. (ii) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement. (iii) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable securities owned by them. (iv) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to quality to do business or to file a general consent to service of process in any such states or jurisdictions. (v) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing 6 underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement. (vi) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result of which the prospectus included in such registration statement as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. (d) FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 7 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of such Holder's Registrable Securities. (e) EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities with respect to the registration pursuant to Section 7(b) including (without limitation) all registration, filing and qualification fees, printers, and accounting fees relating or apportionable thereto, but excluding, underwriting warrants and commissions relating to Registrable Securities and any fees or expenses of separate legal counsel for the Holders. (f) UNDERWRITING REQUIREMENTS. In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 7(b) to include any of the Holders' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not, due to marketing factors, jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities requested by Holders to be included in such offering, exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of Registrable Securities which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the Holders according to the total amount of securities entitled to be included therein owned by each Holder or in such other proportions as shall mutually be agreed to by such holders). For purposes of the preceding parenthetical concerning apportionment for any Holder that is a holder of Registrable Securities and is a partnership or corporation the partners' retired partners and shareholders of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of 'any of the foregoing persons shall be deemed to be a single Holder, and any pro rata reduction with respect to such Holder shall he based upon the aggregate amount of the shares carrying registration rights owned by all entities and individuals included in such Holder, as defined in this sentence. 7 (g) WITHDRAWAL RIGHTS AND REALLOCATION. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter. If shares are withdrawn from registration, or if the number of shares of Registrable Securities was previously reduced due to marketing factors, the Company shall offer to all persons retaining the right to include securities in the registration the right to include additional securities in the registration, with such shares being allocated on a pro rata basis among the Holders of Registrable Securities. (h) DELAY OF REGISTRATION. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 7. (i) INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under this Section 7: (i) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the officers and directors of each Holder, any underwriter (as defined in the Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation") (i) any untrue statement, or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statement therein not misleading, or (iii) any violation or alleged violation by the Company of the Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws, and the Company will reimburse each such Holder, officer or director, underwriter or controlling person for any legal or other expenses that he or it reasonably incurs in connection with investigating or defending any such loss, claim, damage, liability, or action provided, however, that the indemnity agreement contained in this Section 7(1)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim damage, liability, or action to the extent that it arises out of or is based upon a Violation that results from reliance upon written information furnished expressly for use in connection with such registration by any such Holder, officer, director, underwriter or controlling person. (ii) To the extent permitted by law each selling Holder will indemnify and hold harmless the Company, each of its directors each to its officers who have signed the registration statement, each person, if any, who controls the Company within the meaning of the Act any underwriter and any Holder selling securities in such registration statement or any of its directors or 8 officers or any person who controls such Holder, against any losses, claims, damages, or liabilities (joint and several) to which the Company or any such director, officer, controlling person, or underwriter or controlling person, or Holder or director, officer or controlling person thereof may become subject, under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or action in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation results from reliance upon written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person underwriter or controlling person, Holder, officer, director or controlling person thereof in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 7(i)(ii) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the liability of each Holder under this Section 7(i)(ii) shall be limited in an amount equal to the public offering price of the shares sold by such Holder, unless such liability arises out of or is based on willful conduct of such Holder. (iii) Within a reasonable time after receipt by an indemnified party under this Section 7(i) of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 7(i), deliver to the indemnifying party a written notice of the commencement hereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action if such failure is prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7(i); but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 7(i). (iv) The obligations of the Company and Holders under this Section 7(i) shall survive the completion of any offering of Registrable Securities in a registration statement under this Warrant and otherwise. (j) REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to make available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration the Company agrees to: 9 (i) make and keep public information available, as those terms are understood and defined in SEC Rule 144, (ii) file with the SEC in a timely manner all reports required of the Company under the Act and the 1934 Act; and (iii) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has compiled with the reporting requirements of SEC Rule 144 (ii) a copy of the most recent annual or quarterly report of the Company and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. (k) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to register Registrable Securities pursuant to this Section 7 may be assigned by a Holder to a transferee or assignee who acquires the Warrant held by the Holder or all of the Registrable Securities then held by such Holder, provided, in either case, the Company is, within a reasonable time prior to such transfer, furnished with written notice of the name and address of such proposed transferee or assignee and the securities with respect to which such registration rights are being assigned; and provided further that the transferee or assignee of such rights is approved by the Board of Directors of the Company, which approval shall not be withheld for purposes of this Section 7, unless the Board of Directors determines that the transfer or assignment of such rights to the proposed transferee or assignee is not in the best interests of the Company; and provided, further, that such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Act and the transferee enters into a written agreement providing that such transferee shall be bound by the provisions of Section 7 of this Warrant. (l) LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the date of this Warrant, the Company shall not, without the prior written consent of the Holders of a majority of the outstanding Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Company that would allow such holder or prospective holder to include such securities in any registration under Section 7(b) hereof (unless the terms of such agreement give pro rata treatment to the Holders in the event of any cutback by the underwriter). (m) "MARKET STAND-OFF" WARRANT. Each Holder hereby agrees that it shall not, to the extent and during the period of duration specified by the Company and an underwriter of common stock (or other securities) of the Company, which period shall not exceed one hundred eighty (180) days, sell or otherwise transfer or dispose of (other than to transferees who agree to be similarly bound) any registrable Securities after the effective date of registration statement of the Company filed under the Act; provided, however, that all officers and directors of the Company and all other persons with registration rights (whether or not pursuant to this Warrant) enter into similar agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities of each Holder (and the shares or securities of 10 every other person subject to the foregoing restriction) until the end of such one hundred eighty (180) day period. (n) TERMINATION OF COMPANY'S OBLIGATIONS. The rights to register securities granted the Holder pursuant to Section 7(b) shall terminate as to any Holder whose Warrant (i) terminates, (ii) on December 31, 1997, and, in any event (iii) as to any Holder who can sell his/her/its Warrant Shares under the provisions of Rule 144(k) or any other applicable exemption from registration. 8. RIGHTS OF HOLDERS. No Holder shall be entitled to vote or receive dividends or be deemed the holder of Shares or any other securities of the Company which may at any time be issuable on the exercise of this Warrant for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, consolidation, merger, transfer of assets or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until this Warrant shall have been exercised and the Shares issuable upon exercise hereof shall have become deliverable, as provided herein. The Company shall provide to the Holder all notices and other information which it provides to its stockholders. 9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company at its expense shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor. 10. EXCHANGE OF WARRANT. Subject to the other provisions of this Warrant, on surrender of this Warrant for exchange, properly endorsed and subject to the provisions of this Warrant with respect to compliance with the Act, the Company at its expense shall issue to the Holder a new warrant or warrants of like tenor. in the name of the Holder or as the Holder (on payment by the Holder of any applicable transfer taxes) may direct, for the number of Shares issuable upon exercise thereof. 11. GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the State of Colorado as such laws are applied to agreements between Colorado residents entered into and to be performed entirely within Colorado. 12. SURVIVAL. The representations warranties, covenants and agreements made herein shall survive the execution of this Agreement and the closing of the transactions contemplated hereby. 13. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, 11 executors and administrators of the parties hereto. 14. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by facsimile, overnight courier or mailed by certified or registered mail, postage prepaid, return receipt requested, to the facsimile number or address shown on the signature pages to this Agreement or to such other facsimile number or address provided to the parties to this Agreement in accordance with this Section 10.5. Such notices or other communications shall be deemed received upon receipt of a confirmation of facsimile receipt or three (3) days after deposit in the mails. 15. SEVERABILITY. In case any provision of this Agreement shall be declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 16. TITLES AND SUBTITLES. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 17. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. DATED: June 19, 1997 DCX INC., a Colorado corporation By: STEPHEN CARREKER Stephen Carreker, President 12 ACCEPTANCE OF WARRANT The undersigned hereby accepts this Warrant and agrees to abide by all the terms and conditions hereof. The undersigned further represents and agrees that it is accepting this Warrant for its own account for investment purposes and not with a view to or for sale in connection with a distribution of the Warrant or the Warrant Shares. The undersigned further affirms the representations contained in Section 7 of the Warrant. WARRANT HOLDER: SPENCER EDWARDS, INC. By: EDWARD H. PRICE Name: EDWARD H. PRICE Title: PRESIDENT Date: JUNE 19, 1997 13 EXHIBIT A NOTICE OF EXERCISE TO: DCX, INC: 1. The undersigned Holder of the attached original, executed Common Stock Purchase Warrant hereby elects to exercise its purchase right under such Warrant with respect to Shares. as defined in the Warrant, of DCX, INC. 2. The undersigned Holder elects to pay the aggregate Warrant Price for such Shares (the "Exercise Shares") in the following manner: [ ] by the enclosed cash or check made payable to the Company in the amount of $ , or --------- [ ] by wire transfer of United States funds to the account of the Company in the amount of $ , which transfer has ---------- been made before or simultaneously with the delivery of this Notice pursuant to the instructions of the Company. 3. Please issue a stock certificate or certificates representing the appropriate number of Shares in the name of the undersigned or in such other names as is specified below. Name: ----------------------------- Address: ---------------------------------- Tax Identification No.: ----------- HOLDER: By: -------------------------------------- Dated: Title: ------------------------ ----------------------------------- 14 EX-4 8 COMMON STOCK PURCHASE WARRANT, EXHIBIT 4.10 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION THEREFROM IS AVAILABLE. WARRANT TO PURCHASE COMMON STOCK OF DCX, INC. This certifies that CORETECH LTD. (the "Holder"), for value received, is entitled to purchase from DCX, INC. (the "Company") Thirty Six Thousand Two Hundred Eighty One (36,281) shares of the Company's Common Stock (the "Common Stock") for a per share exercise price equal to $1.875 (the "Per Share Exercise Price"). This right may be exercised at any time from the date hereof up to and including 5:00 p.m. (New York City time) on the second anniversary of the date hereof (the "Expiration Date"), upon surrender to the Company at its principal office (or at such other location as the Company may advise the Holder in writing) of this warrant, properly endorsed, with the Subscription Form attached hereto duly filled in and signed and, if applicable, upon payment in cash or by check of the aggregate Per Share Exercise Price for the number of shares for which this warrant is being exercised determined in accordance with the provisions hereof. 1. ISSUANCE OF CERTIFICATES. Certificates for the shares of Common Stock acquired upon exercise of this warrant, together with any other securities or property to which the Holder is entitled upon such exercise, will be delivered to the Holder by the Company at the Company's expense within a reasonable time after this warrant has been so exercised. Each stock certificate so delivered will be in such denominations of Common Stock as may be requested by the Holder and will be registered in the name of the Holder. In case of a purchase of less than all the shares that may be purchased under this warrant, the Company will cancel this warrant and execute and deliver a new warrant or warrants of like tenor for the balance of the shares purchasable under this warrant to the Holder within a reasonable time after surrender of this warrant. 2. SHARES FULLY-PAID, NONASSESSABLE, ETC. All shares of Common Stock issued upon exercise of this warrant will, upon issuance, be duly authorized, validly issued, fully-paid and nonassessable and free from all preemptive rights of any shareholder and free of all taxes, liens and charges with respect to the issue thereof. The Company will at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the exercise of this warrant, such number of its shares of Common Stock as from time to time are sufficient to effect the full exercise of this warrant. If at any time the number of authorized but unissued shares of Common Stock is not sufficient to effect the full exercise of this warrant, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as is sufficient for such purpose. The Company will take all such action as may be necessary to assure that such securities may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed; provided, however, that the Company will not be required to effect a registration under Federal or state -1- securities laws with respect to such exercise (except as may be set forth in a separate written agreement between the Company and the Holder). 3. NET ISSUE EXERCISE. Notwithstanding any provisions herein to the contrary, if the fair market value of one share of the Company's Common Stock is greater than the Per Share Exercise Price (at the date of calculation as set forth below), in lieu of exercising this warrant for cash, the Holder may elect to receive shares equal to the value (as determined below) of this warrant (or the portion thereof being canceled) by surrender of this warrant at the principal office of the Company, together with the properly endorsed Subscription Form and notice of such election, in which event the Company will issue to the Holder a number of shares of Common Stock computed using the following formula: X = Y (A-B) A Where X = the number of shares of Common Stock to be issued to the Holder Y = the number of shares of Common Stock purchasable under this warrant or, if only a portion of this warrant is being exercised, the portion of this warrant being canceled (at the date of such calculation) A = the fair market value of one share of the Company's Common Stock (at the date of such calculation) B = Per Share Exercise Price (as adjusted to the date of such calculation) For purposes of the above calculation, fair market value of one share of Common Stock will be the Closing Bid Price as of the close of business on the trading day prior to the date the completed, executed Subscription Form is received. 4. ADJUSTMENTS. 4.1 ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company at any time or from time to time during the term of this warrant effects a subdivision of the outstanding Common Stock, the Per Share Exercise Price in effect immediately before that subdivision will be proportionately decreased. Conversely, if the Company at any time or from time to time during the term of this warrant combines the outstanding shares of Common Stock into a smaller number of shares, the Per Share Exercise Price in effect immediately before the combination will be proportionately increased. Any adjustment under this Section 4.1 will become effective at the close of business on the date the subdivision or combination becomes effective. 4.2 ADJUSTMENT FOR COMMON STOCK DIVIDENDS AND DISTRIBUTIONS. If the Company at any time or from time to time during the term of this warrant makes, or fixes, a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock, in each such event the Per Share Exercise Price that is then in effect will be decreased as of the time of such issuance or, in the event such record date is fixed, as of the close -2- of business on such record date, by multiplying the Per Share Exercise Price then in effect by a fraction (a) the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance on the close of business on such record date, and (b) the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance on the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution; provided, however, that if such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Per Share Exercise Price will be recomputed accordingly as of the close of business on such record date and thereafter the Per Share Exercise Price will be adjusted pursuant to this Section 4.2 to reflect the actual payment of such dividend or distribution. 4.3 ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. If the Company at any time or from time to time during the term of this warrant makes, or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Company other than shares of Common Stock, in each such event provision will be made so that the Holder will receive upon exercise of this warrant, in addition to the number of shares of Common Stock receivable thereupon, the amount of other securities of the Company that it would have received had this warrant been exercised on the date of such event and had it thereafter, during the period from the date of such event to and including the exercise date, retained such securities receivable by them as aforesaid, subject to all other adjustments called for during such period under this Section 4 with respect to the rights of the Holder hereunder or with respect to such other securities by their terms. 4.4 ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If at any time or from time to time during the term of this warrant the Common Stock issuable upon the exercise of this warrant is changed into the same or a different number of shares of any class or classes of stock, whether by recapitalization, reclassification or otherwise (other than a recapitalization, subdivision, combination, reclassification or exchange provided for elsewhere in this Section 4), the Holder will have the right thereafter to exercise this warrant for the kind and amount of stock and other securities and property receivable upon such recapitalization, reclassification or other change into which the shares of Common Stock issuable upon exercise of this warrant immediately prior to such recapitalization, reclassification or change could have been converted, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. 4.5 REORGANIZATIONS. If at any time or from time to time during the term of this warrant there is a capital reorganization of the Common Stock (other than a recapitalization, subdivision, combination, reclassification or exchange provided for elsewhere in this Section 4), as a part of such capital reorganization, provision will be made so that the Holder will thereafter be entitled to receive upon exercise of this warrant the number of shares of stock or other securities or property of the Company to which a holder of the number of shares of Common Stock deliverable upon exercise of this warrant would have been entitled on such capital reorganization, subject to adjustment in respect of such stock or securities by the terms thereof. 4.6 CERTIFICATE OF ADJUSTMENT. In each case of an adjustment or readjustment of the number of shares issuable upon exercise of this warrant or the Per Share Exercise Price, the Company, at its expense, will compute such adjustment or readjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment or readjustment, and will mail such certificate, by first class mail, postage prepaid, to the Holder at the Holder's address as shown in the Company's books. The -3- certificate will set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (1) the Per Share Exercise Price at the time in effect, and (b) the type and amount, if any, of other property that at the time would be received upon exercise of this warrant. 4.7 NOTICES OF RECORD DATE. Upon (a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, (b) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any sale of all or substantially all of the assets of the Company or any voluntary or involuntary dissolution, liquidation or winding up of the Company or (c) a proposed Sale Event, the Company will mail to the Holder at least twenty (20) days prior to the record date specified therein a notice specifying (1) the date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (2) the date on which any such reorganization, reclassification, recapitalization, asset sale, dissolution, liquidation or winding up is expected to become effective, and (3) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) will be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, recapitalization, asset sale, dissolution, liquidation or winding up. 5. TAXES. The Company will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Common Stock upon exercise of this warrant, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Common Stock in a name other than that in which this warrant was registered. 6. CLOSING OF BOOKS. The Company will at no time close its transfer books against the transfer of any warrant or of any shares of Common Stock issued or issuable upon the exercise of any warrant in any manner that interferes with the timely exercise of this warrant. 7. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing contained in this warrant will be construed as conferring upon the Holder the right to vote or to consent or to receive notice as a shareholder of the Company or any other matters or any rights whatsoever as a shareholder of the Company. No dividends or interest will be payable or accrued in respect of this warrant or the interest represented hereby or the shares purchasable hereunder until, and only to the extent that, this warrant has been exercised. 8. WARRANTS TRANSFERABLE. Subject to compliance with applicable Federal and state securities laws and the restrictions imposed by any other written agreement between the Holder and the Company, this warrant and all rights hereunder are transferable, in whole or in part, without charge to the Holder (except for transfer taxes), upon surrender of this warrant properly endorsed and in compliance with the provisions of this warrant. -4- 9. MODIFICATION AND WAIVER. This warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. 10.NOTICES. Any notice required by the provisions of this warrant will be in writing and will be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices will be addressed to the Holder at the address of the Holder appearing on the books of the Company. 11.LOST WARRANTS. The Company represents and warrants to the Holder that upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this warrant and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such warrant, the Company, at its expense, will make and deliver a new warrant, of like tenor, in lieu of the lost, stolen, destroyed or mutilated warrant. 12.FRACTIONAL SHARES. No fractional shares of Common Stock will be issued upon exercise of this warrant. If the conversion would result in the issuance of any fractional share, the Company will, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the closing bid price of the Company's Common Stock on the date of conversion. 13.GOVERNING LAW. This warrant will be construed and enforced in accordance with, and the rights of the parties will be governed by, the laws of the State of Colorado without regard to conflict of laws principles. -5- The Company has executed this warrant as of this 8th day of November, 1996. DCX, INC. By: /S/ FREDERICK G. BEISSER Frederick G. Beisser Secretary and Chief Financial Officer, duly authorized by the Board of Directors CORETECH LTD. By: -------------------------------------- Name: ------------------------------------ Title: ----------------------------------- -6- EXHIBIT A TO WARRANT SUBSCRIPTION FORM Date: ------------------- DCX, INC. 3002 North State Highway 83 Franktown, CO 80116-0569 Attn: President Ladies and Gentlemen: The undersigned hereby elects to exercise the warrant issued to it by DCX, INC. (the "Company") dated as of and to purchase thereunder ------------ ( ) shares of the Common Stock of the Company at a - ---------------------- ------- purchase price of ($ ) per Share, for an ---------------------- ------------- aggregate purchase price of ($ ) (the ---------------------- --------------- "Purchase Price"). Pursuant to the terms of the warrant the undersigned has delivered the Purchase Price herewith in full in cash or by certified check or wire transfer. The undersigned also makes the representations set forth on the attached Exhibit B of the warrant. Very truly yours, ----------------------------------------- By: -------------------------------------- Title: ----------------------------------- -1- EXHIBIT B TO WARRANT INVESTMENT REPRESENTATIONS THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO DCX, INC. CORP. ALONG WITH THE SUBSCRIPTION FORM BEFORE THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANT WILL BE ISSUED. , 199 ------------------- --- DCX, Inc. 3002 North State Highway 83 Franktown, CO 80116-0569 Attention: President The undersigned, ("Purchaser"), intends to acquire up to ---------------- shares of the Common Stock (the "Stock") of DCX, INC. (the "Company") from - ----- the Company pursuant to the exercise of certain warrants to purchase Stock held by Purchaser. The Stock will be issued to Purchaser in a transaction not involving a public offering and pursuant to an exemption from registration under the Securities Act of 1933, as amended (the "1933 Act"), and applicable state securities laws. In connection with such purchase and in order to comply with the exemptions from registration relied upon by the Company, Purchaser represents, warrants and agrees as follows: Purchaser is acquiring the Stock for its own account, to hold for investment, and Purchaser will not make any sale, transfer or other disposition of the Stock in violation of the 1933 Act or the General Rules and Regulations promulgated thereunder by the Securities and Exchange Commission (the "SEC") or in violation of any applicable state securities law. Purchaser has been informed that under the 1933 Act, the Stock must be held indefinitely unless it is subsequently registered under the 1933 Act or unless an exemption from such registration (such as Rule 144) is available with respect to any proposed transfer or disposition by Purchaser of the Stock. Purchaser further agrees that the Company may refuse to permit Purchaser to sell, transfer or dispose of the Stock (except as permitted under Rule 144) unless there is in effect a registration statement under the 1933 Act and any applicable state securities laws covering such transfer, or unless Purchaser furnishes an opinion of counsel reasonably satisfactory to counsel for the Company, to the effect that such registration is not required. Purchaser also understands and agrees that there will be placed on the certificate(s) for the Stock, or any substitution therefor, legends stating in substance: "These securities have not been registered under the Securities Act of 1933. They may not be sold, offered for sale, pledged, or hypothecated in the absence of an effective registration statement as to the securities under said act or an opinion satisfactory to the Company that registration is not required." -1- Purchaser has carefully read this letter and has discussed its requirements and other applicable limitations upon Purchaser's resale of the Stock with Purchaser's counsel. Very truly yours, ------------------------------------------- By: ---------------------------------------- Title: ------------------------------------- -2- EX-4 9 WARRANT TO SKB CORPORATION, EXHIBIT 4.11 WARRANT AGREEMENT 1. A warrant (the "Warrant") to acquire 74,033 shares (hereinafter referred to as "Shares") of the no par value Common Stock of DCX, Inc. (the "Company") is hereby granted to; SKB CORPORATION (hereinafter referred to as the "Holder"), (Name of warrant holder) c/o Richard Cornish, Esq. 9250 East Costilla Ave., Ste. 600 ENGLEWOOD, CO 80112 (Street, city, state and zip code) subject in all respects to the terms and conditions as are set forth herein. 2. Certificates for the shares of Common Stock acquired upon exercise of this Warrant Agreement (the "Agreement") will be delivered to the Holder by the Company at the Company's expense within a reasonable time after this Warrant has been so exercised. Each stock certificate so delivered will be in such denominations of Common Stock as may be requested by the Holder and will be registered in the name of the Holder. 3. All shares of Common Stock issued upon exercise of this warrant will, upon issuance, be duly authorized, validly issued, fully-paid and nonassessable and free from all preemptive rights of any shareholder and free of all taxes, liens and charges with respect to the issue thereof. The Company will at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the exercise of this Warrant, such number of its shares of Common Stock as from time to time are sufficient to effect the full exercise of this Warrant. The Company will take all such action as may be necessary to assure that such securities may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed. 4. The Warrant exercise price as determined by the Board of Directors of the Company (the "Board") is $1.3929 per share. 5. This Warrant may not be exercised after July 31, 1998 and may be exercised in whole or in part at any time during such term, in accordance with the terms and conditions set forth herein. 6. The Warrant may be exercised by delivering to the Treasurer of the Company: a. A Warrant Exercise Notice, substantially in the form attached, specifying the number of Shares to be purchased; and -1- b. Full payment of the Warrant exercise price for the underlying shares to be purchased, in the form of a written cancellation by Holder of accounts payable by the Company to Holder. 7. The Holder, by acceptance hereof, agrees that this Warrant and the Shares to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warrant or any Shares to be issued upon exercise hereof unless pursuant to the registration of such resale or an exemption therefrom under the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the Shares so purchased are being acquired for investment and not with a view toward distribution or resale unless pursuant to the registration of such resale or an exemption therefrom under the Act. This Warrant and all Shares issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS. 8. Subject to the provisions of Section 7, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of Shares purchasable hereunder. Upon surrender of this Warrant to the Company with funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee designated in writing to the Company by Holder and this Warrant shall promptly be canceled. 9. Governing Law. This Agreement will be construed and enforced in accordance with, and the rights of the parties will be governed by, the laws of the State of Colorado without regard to conflict of laws principals. Issue Date: October 10, 1997 DCX, Inc. By: Frederick G. Beisser Vice President - Finance & Administration and Secretary -2- DEBT CANCELLATION AND WARRANT EXERCISE NOTICE The undersigned hereby notifies DCX, Inc. (the "Company") of its election to exercise its warrant to purchase 74,033 shares of Company Common Stock. This Notice also constitutes payment in full of the amount of $103,120.88 by virtue of the Holder's cancellation hereby of a debt owed by the Company to Holder in the amount of $103,120.88, for this exercise at the warrant exercise price of $1.3929 per share. In delivering this Notice, Holder confirms and warrants to the Company Holder's due execution and authorization hereof by all necessary corporate action of Holder, and the enforceability by the Company of this Notice against Holder without qualification as evidence of the satisfaction and payment in full of all obligations of and amounts due by the Company to Holder, subject to the Company's performance of its obligations under the Warrant Agreement dated October 10, 1997, and the registration of the shares by the Company for resale under the Securities Act of 1933. The undersigned agrees with all the provisions of the Warrant Agreement dated October 10, 1997. For: SKB Corporation - ------------------------------------------ (Signature of Holder exercising) C/O 9250 E. COSTILLA AVE., STE. 600 - ------------------------------------------- (address of Holder) ENGLEWOOD, CO 80112 - ------------------------------------------- (city, state and zip code) -3- AGREEMENT OF THE HOLDER The Holder acknowledges the receipt of the Warrant Agreement dated October 10, 1997, and represents to DCX, Inc. that it understands the terms and conditions set forth therein and accepts the same. For: SKB Corporation By: --------------------------------------- (Signature of Holder's Officer) C/O 9250 E. COSTILLA AVE., STE. 600 - ------------------------------------------ (address) ENGLEWOOD, CO 80112 - ------------------------------------------ (city, state and zip code) -4- EX-4 10 WARRANT ISSUED TO GERALD ALEXANDA, EXHIBIT 4.12 WARRANT AGREEMENT 1. A warrant (the "Warrant") to acquire 97,500 shares (hereinafter referred to as "Shares") of no par value Common Stock of DCX, Inc. (the "Company") is hereby granted to; GERALD ALEXANDER (hereinafter referred to as the "Holder"), (Name of warrant holder) subject in all respects to the terms and conditions as are set forth herein. 2. Certificates for the shares of Common Stock acquired upon exercise of this Warrant Agreement (the "Agreement") will be delivered to the Holder by the Company at the Company's expense within a reasonable time after this Warrant has been so exercised. Each stock certificate so delivered will be in such denominations of Common stock as may be requested by the Holder and will be registered in the name of the Holder. 3. All shares of Common Stock issued upon exercise of this warrant will, upon issuance, be duly authorized, validly issued, fully-paid and nonassessable and free from all preemptive rights of any shareholder and free of all taxes, liens and charges with respect to the issue thereof. The Company will at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the exercise of this Agreement, such number of its shares of Common Stock as from time to time are sufficient to effect the full exercise of this Agreement. The Company will take all such action as may be necessary to assure that such securities may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed. 4. The Warrant exercise price as determined by the Board of Directors of the Company (the "Board") is $1.875 per share. 5. This Warrant may not be exercised after August 1, 2000 and may be exercised in whole or in part at any time during such term, in accordance with the terms and conditions set forth herein. 6. The Warrant may be exercised by delivering to the Treasurer of the Company: a. A Notice and Agreement of Exercise of Warrant, substantially in the form attached, specifying the number of Warrant Shares to be purchased. b. Full payment of the Warrant price for the underlying shares to be purchased in the form of a written cancellation by Holder of accounts payable by the Company to Holder for the full amount of the exercise price. 7. COMPLIANCE WITH SECURITIES ACT. The Holder of this Warrant, by acceptance hereof, agrees that this Warrant and the shares of Common Stock to be issued upon exercise hereof are being acquired for investment and that it will not offer, sell or otherwise dispose of this Warranty or any shares of Common Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"). Upon exercise of this Warrant, the Holder hereof shall, if requested by the company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock so purchased are being acquired for investment and not with a view toward distribution or resale. This Warrant and all shares of Common Stock issued upon exercise of this Warrant (unless registered under the Act) shall be stamped or imprinted with a legend substantially in the following form: THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT THE PROPOSED TRANSACTION WILL NOT VIOLATE FEDERAL OR STATE SECURITIES LAWS. 8. Subject to the provisions of Section 8, this Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations, entitling the Holder or Holders thereof to purchase in the aggregate the same number of Shares purchasable hereunder. Upon surrender of this Warrant to the Company or at the office of its stock transfer agent, if any, and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant in the name of the assignee designated in writing by Holder and this Warrant shall promptly be canceled. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof at the office of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. 9. Governing Law. This Agreement will be construed and enforced in accordance with, and the rights of the parties will be governed by, the laws of the State of Colorado without regard to conflict of laws principals. Issue Date: October 24, 1997 DCX, Inc. ----------------------------------------------- By: Frederick G. Beisser Vice President - Finance & Administration and Secretary -2- WARRANT EXERCISE NOTICE The undersigned hereby notifies DCX, Inc. (the "Company") of its election to exercise its warrant to purchase 97,500 shares of Company Common Stock. Accompanying this notice is payment in the amount of $ in payment --------------- for this exercise at the warrant exercise price of $1.875 per share. The undersigned agrees with all the provisions of the Warrant Agreement dated October 24, 1997. For: Gerald Alexander - ------------------------------------- (Signature of Holder exercising) - ------------------------------------- (address of Holder) - ------------------------------------- (city, state and zip code) -3- AGREEMENT OF THE HOLDER The Holder acknowledges the receipt of the Warrant Agreement, and represents to DCX, Inc. that it understands the terms and conditions set forth therein and accepts the same. For: Gerald Alexander By: ---------------------------------- (Signature of Holder's Officer) - ------------------------------------- (address) - ------------------------------------- (city, state and zip code) -4- EX-23 11 CONSENT, EXHIBIT 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS DCX, Inc. Golden, Colorado We hereby consent to the incorporation by reference in the Prospectus and this Registration Statement of our report dated January 9, 1997, relating to the consolidated financial statements of DCX, Inc. appearing in the Company's Annual Report on Form 10-KSB for the year ended September 30, 1996. BDO Seidman, LLP Denver, Colorado November 5, 1997 EX-23 12 CONSENT, EXHIBIT 23.3 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the use in this Registration Statement of DCX, Inc. on Form S-3 of our report dated August 26, 1997 on the financial statements of PlanGraphics, Inc. for the nine months ended September 30, 1996 and the year ended December 31, 1995 incorporated by reference into the Registration STatement and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/Eskew & Gresham, PSC Eskew & Gresham, PSC Certified Public Accountants Lexington, Kentucky November 5, 1997 -----END PRIVACY-ENHANCED MESSAGE-----