EXHIBIT 4.5
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). 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 OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
February 18, 1998
PC-Tel, Inc.
a California corporation
Common Stock Purchase Warrant
THIS CERTIFIES THAT, for value received, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (hereinafter, the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to purchase from PC-TEL, INC., a California corporation (the
"Company"), that number of fully paid and nonassessable shares of the Company's
Common Stock at the purchase price per share as determined in Section 1 below.
Terms and Conditions of Warrant
1. Number of Shares; Exercise Price; Term.
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(a) Subject to the terms and conditions set forth herein, the Holder
is entitled to purchase from the Company, at any time after the date hereof and
on or before the date of termination of this Warrant provided for in Section
1(b) below, up to 558 fully paid and non-assessable shares of the Company's
Common Stock (the "Shares") at an exercise price per share of $8.00 (the
"Exercise Price").
(b) This Warrant (and the right to purchase securities upon exercise
hereof) shall expire and cease to be exercisable if not exercised prior to the
earliest to occur of (i) the acquisition of the Company by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger, consolidation or sale of all or substantially all of
the assets of the Company) in which, immediately after completion of such
transaction, the shareholders of the Company prior to such transaction or series
of related transactions own less than fifty percent (50%) of the voting power of
the surviving entity after such transaction or series of transactions, and (ii)
5:00 p.m. (Pacific Time) on February 4, 2001 (the "Expiration Date"). The
Company shall provide the Holder not less than 10 days' prior written notice of
the completion of any transaction contemplated in (i) above.
2. Exercise of Warrant.
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(a) This Warrant may be exercised by the Holder as to the whole or any
lesser number of the Shares covered hereby, as set forth in Section 1 above,
upon surrender of this Warrant to the Company at its principal executive offices
together with the Notice of Exercise and Investment Representation Statement
annexed hereto as Exhibits A and B, respectively, duly completed and executed by
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the Holder, and payment to the Company in cash of the aggregate Exercise Price
for the Shares to be purchased. Certificates for the Shares so purchased shall
be delivered to the Holder within
a reasonable time after exercise of the stock purchase rights represented by
this Warrant. The exercise of this Warrant shall be deemed to have been effected
on the day on which the Holder surrenders this Warrant to the Company and
satisfies all of the requirements of this Section 2. Upon such exercise, the
Holder will be deemed a shareholder of record of those Shares for which the
warrant has been exercised with all rights of a shareholder (including, without
limitation, all voting rights with respect to such Shares and all rights to
receive any dividends with respect to such Shares). If this Warrant is to be
exercised in respect of less than all of the Shares covered hereby, the Holder
shall be entitled to receive a new warrant covering the number of Shares in
respect of which this Warrant shall not have been exercised and for which it
remains subject to exercise. Such new warrant shall be in all other respects
identical to this Warrant.
(b) Notwithstanding the payment provisions set forth in Section 2(a)
above, the Holder may elect to receive Shares equal to the value of this Warrant
(or of any portion thereof remaining unexercised) by surrender of this Warrant
at the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder that number of Shares computed
using the following formula:
X = Y*(A-B)
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A
Where: X = the number of Shares to be issued to the Holder;
Y = the number of Shares purchasable under this Warrant
(at the date of such calculation);
A = the Fair Market Value of one Share; and
B = the Exercise Price (at the date of such calculation).
(c) For purposes of section 3(b) above, the Fair Market Value of one
Share shall mean (i) if the Company's Common Stock is listed on any established
stock exchange or national market system, including, without limitation, the
National Market of The Nasdaq Stock Market, the closing sales price of one share
of the Company's Common Stock (or the closing bid, if no sales were reported) as
quoted on such system or exchange (or the exchange with the greatest volume of
trading in the Company's Common Stock) on the last market trading day prior to
the day of determination, as reported in The Wall Street Journal or such other
source as the Board of Directors of the Company may deem reliable; (ii) if the
Company's Common Stock is quoted on The Nasdaq Stock Market (but not on the
National Market thereof) or regularly quoted by a recognized securities dealer
but selling prices are not reported, the mean between the high and low asked
prices for the Company's Common Stock on the last market trading day prior to
the day of determination, as reported in The Wall Street Journal or such other
source as the Board of Directors of the Company may deem reliable; (iii) if
exercised in connection with respect to a merger or consolidation of the Company
or the sale of all or substantially all of the assets of the Company, the amount
of cash or the value of securities actually received by the Company or its
shareholders in such transaction for each share of the Company's Common Stock;
or (iv) as otherwise determined by the Board of Directors of the Company, acting
in good faith.
3. Covenants of the Company. The Company covenants and agrees that all
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Common Stock which may be issued upon the exercise of the rights represented by
this Warrant, upon issuance and
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payment therefor in accordance herewith, will be duly authorized, validly
issued, fully paid, and nonassessable shares of Common Stock of the Company. The
Company further covenants and agrees that, during the period within which the
stock purchase rights represented by this Warrant may be exercised, the Company
will at all times have duly authorized and duly reserved for issuance upon the
exercise of the purchase rights evidenced by this Warrant a number of shares of
Common Stock sufficient for such issuance.
4. Transfer, Exchange, Assignment, or Loss of Warrant.
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(a) This Warrant may not be assigned or transferred except as provided
in this Section 4 and in accordance with and subject to the provisions of the
Securities Act and the Rules and Regulations promulgated thereunder. Any
purported transfer or assignment made other than in accordance with this Section
4 shall be null and void and of no force or effect.
(b) Prior to any transfer of this Warrant, the Holder shall notify the
Company of its intention to effect such transfer, indicating the circumstances
of the proposed transfer and, upon request, furnish the Company with an opinion
of its counsel, in form and substance satisfactory to counsel for the Company,
to the effect that the proposed transfer may be made without registration under
the Securities Act or qualification under any applicable state securities laws.
The Company will promptly notify the Holder if the opinion of counsel furnished
to the Company is satisfactory to counsel for the Company. Unless the Company
notifies the Holder within ten (10) days after its receipt of such opinion that
such opinion is not satisfactory to counsel for the Company, the Holder may
proceed to effect the transfer.
(c) Unless a registration statement under the Securities Act is
effective with respect to the Shares or any other security issued upon exercise
of this Warrant, the certificate representing such Shares or other securities
shall bear the following legend, in addition to any legend imposed by applicable
state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT ONLY
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). 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 OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
(d) Any assignment permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office with the Assignment Form
attached hereto as Exhibit C duly executed. In such event, the Company shall,
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without charge for any issuance or transfer tax or other cost incurred by the
Company with respect to such transfer, execute and deliver a new Warrant in the
name of the assignee named in such instrument of assignment, and this Warrant
shall be promptly cancelled. This Warrant may be divided or combined with other
Warrants which carry the same rights upon
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presentation thereof at the principal office of the Company, together with a
written notice signed by the Holders thereof, specifying the name and
denominations in which such new Warrants are to be issued.
(e) Upon receipt by the Company of satisfactory evidence of loss,
theft, destruction, or mutilation of this Warrant and of indemnity satisfactory
to the Company, and upon surrender and cancellation of this Warrant, if
mutilated, the Company will execute and deliver a new Warrant of like tenor and
date and any such lost, stolen, or destroyed Warrant shall thereupon become
void. Any such new Warrant executed and delivered shall constitute an
additional contractual obligation on the part of the Company, whether or not the
Warrant so lost, stolen, destroyed, or mutilated shall be at any time
enforceable by anyone.
5. No Fractional Shares or Scrip. No fractional shares or scrip
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representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which such holder would otherwise
be entitled, such holder shall be entitled, at its option, to receive either (i)
a cash payment equal to the excess of the Fair Market Value for such fractional
share above the Exercise Price for such fractional share (as mutually determined
by the Company and the Holder) or (ii) a whole share if the Holder tenders the
Exercise Price for one whole share.
6. No Rights as Shareholders. This Warrant does not entitle the holder
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hereof to any voting rights, dividend rights, or other rights as a shareholder
of the Company prior to the exercise hereof.
7. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
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the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day
not a Saturday or a Sunday or a legal holiday.
8. Adjustments. The Exercise Price per Share and the number of Shares
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purchasable hereunder shall be subject to adjustment from time to time as
follows:
(a) Merger. If at any time there shall be a merger or consolidation
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of the Company with or into another corporation when the Company is not the
surviving corporation, then, as a part of such merger or consolidation, lawful
provision shall be made so that the holder of this Warrant shall thereafter be
entitled to receive upon exercise of this Warrant, during the period specified
herein and upon payment of the aggregate Exercise Price then in effect, the
number of shares of stock or other securities or property of the successor
corporation resulting from such merger or consolidation, to which a holder of
the stock deliverable upon exercise of this Warrant would have been entitled in
such merger or consolidation if this Warrant had been exercised immediately
before such merger or consolidation. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Warrant with respect
to the rights and interests of the Holder after the merger or consolidation.
(b) Reclassification, etc. If the Company shall, at any time, by
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subdivision, combination, or reclassification of securities or otherwise, change
any of the securities as to which purchase rights under this Warrant exist into
the same or a different number of securities of any other class or classes, the
Exercise Price shall be adjusted such that this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such
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change with respect to the securities which were subject to the purchase rights
under this Warrant immediately prior to such subdivision, combination,
reclassification or other change.
(c) Split, Subdivision or Combination of Shares. If the Company at
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any time while this Warrant remains outstanding and unexpired shall split,
subdivide or combine the securities as to which purchase rights under this
Warrant exist, the Exercise Price shall be proportionately decreased in the case
of a split or subdivision or proportionately increased in the case of a
combination.
9. Notice of Adjustments; Notices. Whenever the Exercise Price or number
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of Shares issuable upon exercise hereof shall be adjusted pursuant to Section 8
hereof, the Company shall issue a certificate signed by its Chief Executive
Officer or 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 Exercise Price and number of Shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the holder of this Warrant.
10. Miscellaneous.
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(a) Successors and Assigns. This Warrant shall be binding upon any
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successors or assigns of the Company.
(b) Governing Law. This Warrant shall be governed by and construed in
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accordance with the laws of the State of California as applied to agreements
between California residents entered and to be performed entirely within
California.
(c) Attorneys' Fees. In any litigation, arbitration, or court
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proceeding between the Company and the holder relating hereto, the prevailing
party shall be entitled to reasonable attorneys' fees and expenses incurred in
enforcing this Warrant.
(d) Amendments. This Warrant may be amended and the observance of any
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term of this Warrant may be waived only with the written consent of the Company
and the Holder, or in the event that this Warrant shall have been transferred in
part, with the written consent of the Company and the holders of warrants
representing a majority-in-interest of the Shares originally issuable hereunder.
(e) Notice. Any notice required or permitted hereunder shall be
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deemed effectively given upon personal delivery to the party to be notified or
upon deposit with the United States Post Office, by certified mail, postage
prepaid and addressed to the party to be notified at the address indicated below
for such party, or at such other address as such other party may designate by
ten-day advance written notice.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase
Warrant to be executed by its officer thereunto duly authorized as of the date
first above written.
PC-TEL, INC.
By:
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Name:
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Title:
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Acknowledged and Agreed:
WARRANT HOLDER:
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Signature
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Print Name
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Street Address
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City State Zip Code
[Warrant Signature Page]
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EXHIBIT A
NOTICE OF EXERCISE
NOTICE OF EXERCISE
STOCK PURCHASE WARRANT
To: PC-TEL, INC.
1. The undersigned hereby elects to purchase _______ shares of
___________ ("Stock") of PC-Tel, Inc. (the "Company") pursuant to the terms of
the attached Warrant, and tenders herewith payment of the aggregate exercise
price therefor and any transfer taxes payable pursuant to the terms of the
Warrant, together with an Investment Representation Statement in form and
substance satisfactory to legal counsel to the Company.
2. The shares of Stock to be received by the undersigned upon exercise of
the Warrant are being acquired for its own account, not as a nominee or agent,
and not with a view to resale or distribution of any part thereof, and the
undersigned has no present intention of selling, granting any participation in,
or otherwise distributing the same. The undersigned further represents that it
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to the Stock. The undersigned believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Stock.
3. The undersigned understands that the shares of Stock are characterized
as "restricted securities" under the federal securities laws inasmuch as they
are being acquired from the Company in transactions not involving a public
offering and that under such laws and applicable regulations such securities may
be resold without registration under the Securities Act of 1933, as amended (the
"Act"), only in certain limited circumstances. In this connection, the
undersigned represents that it is familiar with Rule 144 promulgated under the
Act, as presently in effect, and understands the resale limitations imposed
thereby and by the Act.
4. The undersigned covenants and agrees, in connection with any
registration of the Company's initial public offering of Common Stock, upon
request of the Company or the underwriters managing such offering, not to sell,
make any short sale of, loan, grant any option for the purchase of or otherwise
dispose of any securities of the Company for such period of time (not to exceed
180 days) from the effective date of the Company's registration statement filed
with and declared effective by the Securities and Exchange Commission as the
Company or the managing underwriters shall determine. The undersigned further
covenants and agrees to enter into a customary form of "lock-up" agreement upon
request of the Company or the underwriters managing such offering to the extent
not inconsistent with the preceding sentence.
5. The undersigned understands the instruments evidencing the Stock may
bear the following legend, in addition to any legend required by applicable
state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT ONLY
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). 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 OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
6. Please issue a certificate or certificates representing said shares of
Stock in the name of the undersigned:
Name:
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Address:
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7. Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned:
Name:
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Address:
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IN WITNESS WHEREOF, the Warrantholder has executed this Notice of Exercise
effective this ___ day of ________, _____.
WARRANTHOLDER
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By:
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Name:
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Title:
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[NOTICE OF EXERCISE OF STOCK PURCHASE WARRANT]
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
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COMPANY : PC-TEL, INC.
SECURITIES :
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DATE :
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In connection with the purchase of the above-listed Securities, the
undersigned, the Purchaser represents to the Company the following:
(a) The undersigned is sufficiently aware of the Company's business
affairs and financial condition to reach an informed and knowledgeable decision
to acquire the Securities. The undersigned is purchasing these Securities for
its own account for investment purposes only and not with a view to, or for the
resale in connection with, any "distribution" thereof for purposes of the
Securities Act of 1933, as amended (the "Securities Act").
(b) The undersigned understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent as expressed herein. In this connection, the
undersigned understands that, in the view of the Securities and Exchange
Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if its representation was predicated solely upon a present intention
to hold these Securities for the minimum capital gains period specified under
tax statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future.
(c) The undersigned further understands that the Securities must be
held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from registration is otherwise available (such as Rule 144
under the Securities Act). Moreover, the undersigned understands that the
Company is under no obligation to register the Securities. In addition, the
undersigned understands that the certificate evidencing the Securities may be
imprinted with a legend which prohibits the transfer of the Securities unless
they are registered or such registration is not required in the opinion of
counsel for the Company.
(d) The undersigned is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including, among
other things: (1) The availability of certain public information about the
Company; (2) the resale's occurring not less than one year after the party has
purchased, and made full payment for, within the meaning of Rule 144, the
securities to be
sold; and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years (3) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker, as said term is defined under the Securities Exchange Act of 1934 (the
"Exchange Act") and the amount of securities being sold during any three month
period not exceeding the specified limitations stated therein, if applicable.
There can be no assurances that the requirements of Rule 144 will be met, or
that the Securities will ever be saleable.
(e) The undersigned further understands that at the time the
undersigned wishes to sell the Securities there may be no public market upon
which to make such a sale, and that, even if such a public market then exists,
the Company may not be satisfying the current public information requirements of
Rule 144, and that, in such event, the undersigned would be precluded from
selling the Securities under Rule 144 even if the applicable minimum holding
period had been satisfied.
(f) The undersigned further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied registration under the
Securities Act, compliance with Regulation A, compliance with some other
registration exemption or the notification to the Company of the proposed
disposition by it and the furnishing to the Company of (i) detailed information
regarding the disposition, and (ii) and opinion of its counsel to the effect
that such disposition will not require registration (the undersigned understands
such counsel's opinion shall concur with the opinion by counsel for the Company
and the undersigned shall have been informed of such compliance) will be
required and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
Signature of Purchaser:
By:
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Name:
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Title:
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EXHIBIT C
ASSIGNMENT FORM
ASSIGNMENT FORM
(To assign the foregoing Common Stock Purchase Warrant, execute this
form and supply required information. Do not use this form to purchase
shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
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(Please Print)
whose address is
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(Please Print)
.
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Dated: , 19 .
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Holder's Signature:
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Holder's Address:
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Signature Guaranteed:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.