BERLINER COMMUNICATIONS, INC. Common Stock Purchase Warrant January [__], 2010
NEITHER
THIS WARRANT NOR ISSUANCE OF THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF TO
THE HOLDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED OR
REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS
WARRANT NOR SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES
ACT OF 1933, APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND THE APPLICABLE
RULES AND REGULATIONS THEREUNDER.
THIS
WARRANT MAY NOT BE TRANSFERRED EXCEPT AS PROVIDED IN SECTION 15.
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No. U-____
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Right to Purchase [_______]
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Shares of Common Stock of
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Berliner Communications, Inc.
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BERLINER
COMMUNICATIONS, INC.
January
[__], 2010
BERLINER COMMUNICATIONS, INC.,
a Delaware corporation, hereby certifies that, for value received, [Holder] or permitted assigns
(the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company
at any time or from time to time before 5:00 p.m., New York City time, on the
Expiration Date (such capitalized term and all other capitalized terms used
herein having the respective meanings provided herein), [______] fully paid and
nonassessable shares of Common Stock at a purchase price per share equal to the
Purchase Price. The number of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided in this Common Stock
Purchase Warrant (this “Warrant”).
As used
herein the following capitalized terms, unless the context otherwise requires,
have the following respective meanings:
“1933 Act” means the
Securities Act of 1933, as amended.
“1934 Act” means the
Securities Exchange Act of 1934, as amended.
“Aggregate Purchase
Price” means at any time an amount equal to the product obtained by
multiplying (i) the Purchase Price times (ii) the number of
shares of Common Stock for which this Warrant may be exercised at such
time.
“Board of Directors”
means the Board of Directors of the Company.
“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
the city of New York, New York are authorized or required by law or executive
order to remain closed.
“Common Stock”
includes the Company’s common stock, par value $.00002 per share, and any other
securities into which or for which the Common Stock may be converted or
exchanged hereunder in accordance with the terms hereof.
“Company” shall
include Berliner Communications, Inc., a Delaware corporation, and any
corporation that shall succeed to or assume the obligations of Berliner
Communications, Inc. hereunder in accordance with the terms hereof.
“Current Fair Market
Value” means when used with respect to the Common Stock as of a specified
date with respect to each share of Common Stock, the average of the closing
prices of the Common Stock sold on all securities exchanges on which the Common
Stock may at the time be listed, or, if there have been no sales on any such
exchange on such day, the average of the last sales price on all such exchanges
at the end of the most recent day on which there was a sale on any such
exchange, or, if on the day of determination of Current Fair Market Value the
Common Stock is not so listed, the average of the last sales price quoted in the
NASDAQ System as of 4:00 p.m., New York City time, or, if on such day the Common
Stock is not quoted in the NASDAQ System, the average of the last sales price on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, in each
such case averaged over a period of the five most recent Trading Days on which
sales of the Company’s stock occurred prior to the day as of which the Current
Fair Market Value of Common Stock is being determined (or if such day is not a
Trading Day, the Trading Day next preceding such day). If on the date
for which Current Fair Market Value is to be determined the Common Stock is not
listed on any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the Current Fair Market Value of Common Stock shall be
the highest price per share which the Company could then obtain from a willing
buyer (not an employee or director of the Company at the time of determination)
in an arms’-length transaction for shares of Common Stock sold by the Company,
from authorized but unissued shares, as determined in good faith by the Board of
Directors.
“Expiration Date”
means the earlier of September 28, 2017 or the date this Warrant has been
fully exercised.
“Issuance Date” means
January [__], 2010.
“Nasdaq” means the
Nasdaq Global Market or Global Select Market.
“Other Securities”
means any stock (other than Common Stock) and other securities of the Company or
any other Person which the Holder at any time shall be entitled to receive
hereunder in accordance with the terms hereof upon the exercise of this
Warrant.
“Person” means an
individual, partnership, corporation, limited liability company, trust,
unincorporated organization, business trust, association, joint stock company,
joint venture, pool, syndicate, sole proprietorship, governmental agency or any
other form of entity not specifically listed herein.
“Purchase Price” means
$2.50, subject to adjustment as provided in this Warrant.
“QIB” means a
“qualified institutional buyer” as defined in Rule 144A.
2
“Rule 144A” means
Rule 144A as promulgated under the 1933 Act (or any successor
provision).
“SEC” means the
Securities and Exchange Commission.
“Subsidiary” means any
corporation or other entity of which a majority of the capital stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are at the time
directly or indirectly owned by the Company.
“Tender Offer” means a
tender offer, exchange offer or other offer by the Company to repurchase
outstanding shares of its capital stock.
“Trading Day” means at
any time a day on which any of a national securities exchange, Nasdaq or such
other securities market as at such time constitutes the principal securities
market for the Common Stock is open for general trading of
securities.
1. Exercise of
Warrant.
(a) Exercise. This
Warrant may be exercised by the Holder at any time or from time to time, on any
Business Day on or before the Expiration Date, for all, but not less than all,
of the number of shares of Common Stock purchasable upon its exercise by
(i) surrendering this Warrant to the Company, (ii) giving a
subscription form in the form of Exhibit 1 to this Warrant
(duly executed by the Holder) to the Company, and (iii) making payment, in
cash or by certified or official bank check payable to the order of the Company,
or by wire transfer of funds to the account of the Company, in any such case, in
an amount equal to the Aggregate Purchase Price. The subscription
form may be surrendered by telephone line facsimile transmission to such
telephone number for the Company as shall have been specified in writing to the
Holder by the Company; provided, however, that if the
subscription form is given to the Company by telephone line facsimile
transmission the Holder shall send an original of such subscription form to the
Company within five Business Days after such subscription form is so given to
the Company; provided further, however, that any
failure or delay on the part of the Holder in giving such original of any
subscription form shall not affect the validity or the date on which such
subscription form is so given by telephone line facsimile
transmission.
(b) Net Exercise. The
Holder may elect to exercise this Warrant for all, but not less than all, of the
number of shares of Common Stock purchasable upon its exercise by receiving
shares of Common Stock equal to the net issuance value (as determined below) of
this Warrant upon surrender of the subscription form annexed hereto (duly
executed by the Holder) to the Company (followed by surrender of this Warrant to
the Company within three Trading Days after surrender of such subscription
form), in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
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X
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=
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Y x (A - B)
A
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3
where,
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X
=
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the
number of shares of Common Stock to be issued to the
Holder
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Y
=
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the
number of shares of Common Stock as to which this Warrant may be
exercised
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A
=
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the
Current Fair Market Value of one share of Common Stock calculated as of
the last Trading Day immediately preceding the exercise of this
Warrant
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B
=
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the
Purchase Price
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2. Delivery of Stock Certificates, etc.,
on Exercise. As soon as practicable after the exercise of this
Warrant and in any event within three Trading Days thereafter, upon the terms
and subject to the conditions of this Warrant, the Company at its expense
(including the payment by it of any applicable issue or stamp taxes) will cause
to be issued in the name of and delivered to the Holder, or as the Holder (upon
payment by the Holder of any applicable transfer taxes) may direct, a
certificate or certificates for the number of fully-paid and nonassessable
shares of Common Stock (or Other Securities) to which the Holder shall be
entitled on such exercise, in such denominations as may be requested by the
Holder, plus, in lieu of any fractional share to which the Holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
Current Fair Market Value of one full share, together with any other stock or
Other Securities or any property (including cash, where applicable) to which the
Holder is entitled upon such exercise pursuant to Section 1 or
otherwise. The Company shall not be required, however, to pay any tax
or other charge imposed in connection with any transfer involved in the issue of
any certificate for shares of Common Stock (or Other Securities) issuable upon
exercise of this Warrant or payment of cash to any Person other than the Holder,
and in case of such transfer or payment the Company shall not be required to
deliver any certificate for shares of Common Stock (or Other Securities) upon
such exercise or pay any cash until such tax or charge has been paid or it has
been established to the Company’s reasonable satisfaction that no such tax or
charge is due.
3. Subdivision or Combination of Common
Stock. If the Company at any time subdivides (by any stock
split, stock dividend, recapitalization or otherwise) its outstanding shares of
Common Stock into a greater number of shares, the number of shares issuable upon
exercise of this Warrant will be proportionately increased and the Purchase
Price will be proportionately decreased, and if the Company at any time combines
(by reverse stock split, recapitalization or otherwise) its outstanding shares
of Common Stock into a smaller number of shares, the number of shares issuable
upon exercise of this Warrant will be proportionately decreased and the Purchase
Price will be proportionately increased.
4
4. Effect
of Reclassification, Consolidation, Merger or Sale.
(a) If
any of the following events occur, (i) any reclassification or change of
the outstanding shares of Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any transaction or event in
connection with which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock (whether by means of a Tender Offer,
liquidation, consolidation, merger, share exchange, combination,
reclassification, recapitalization, or otherwise), or (iii) any sale or
transfer of all or substantially all of the assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock, then as a condition precedent to the
consummation of such event, the Company or the successor or purchasing Person,
as the case may be, shall execute with the Holder a written agreement providing
that (x) this Warrant shall thereafter entitle the Holder to purchase the
kind and amount of shares of stock and Other Securities or property or assets
(including cash) receivable upon such event by the holder of a number of shares
of Common Stock issuable upon exercise of this Warrant (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
exercise this Warrant) immediately prior to such event assuming such holder of
Common Stock did not exercise such holder’s rights of election, if any, as to
the kind or amount of securities, cash or other property receivable upon such
event (provided that, if the kind or
amount of securities, cash or other property receivable upon such event is not
the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised (“non-electing share”),
then for the purposes of this Section 4 the
kind and amount of securities, cash or other property receivable upon such event
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares), (y) in the
case of any such successor or purchasing Person, upon such event such successor
or purchasing Person shall be jointly and severally liable with the Company for
the performance of all of the Company’s obligations under this Warrant, and
(z) if registration or qualification is required under the 1933 Act or
applicable state law for the public resale by the Holder of such shares of stock
and Other Securities so issuable upon exercise of this Warrant, such
registration or qualification shall be completed prior to such
event. Such written agreement shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Warrant. If, in the case of any such event, the stock or
other securities and assets receivable thereupon by a holder of shares of Common
Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as the case may be, in such
event, then such written agreement shall also be executed by such other
corporation and shall contain such additional provisions to protect the
interests of the Holder as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.
(b) The
provisions of this Section 4 shall
similarly apply to successive applicable events.
5. Tax
Adjustments. The Company may make such reductions in the
Purchase Price, in addition to those required by Section 3, as
the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
6. Notice of
Adjustments. Whenever the Purchase Price is adjusted as herein
provided, the Company shall promptly, but in no event later than ten Trading
Days thereafter, give a notice to the Holder setting forth the Purchase Price
and number of shares of Common Stock which may be purchased upon exercise of
this Warrant after such adjustment and setting forth a brief statement of the
facts requiring such adjustment but which such statement shall not include any
information which would be material non-public information for purposes of the
1934 Act. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
5
7. Notice to Holder Prior to Certain
Actions. In case after the Issuance Date:
(a) the
Board of Directors shall authorize any event referenced in clauses (i), (ii) or
(iii) of Section
4(a); or
(b) there
shall be pending the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the
Company shall give the Holder, as promptly as possible but in any event at least
ten Trading Days prior to the applicable date hereinafter specified, a notice
stating the date on which such event, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record who shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such event,
dissolution, liquidation or winding-up shall be determined. Such
notice shall not include any information which would be material non-public
information for purposes of the 1934 Act. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
event, dissolution, liquidation or winding-up. In the case of any
such action of which the Company gives such notice to the Holder or is required
to give such notice to the Holder, the Holder shall be entitled to give a
subscription form to exercise this Warrant that is contingent on the completion
of such action.
8. Reservation of Stock, etc., Issuable
on Exercise of Warrants. The Company will at all times reserve
and keep available out of its authorized but unissued shares of capital stock,
solely for issuance and delivery on the exercise of this Warrant, a sufficient
number of shares of Common Stock (or Other Securities) to effect the full
exercise of this Warrant and the exercise, conversion or exchange of any other
warrant or security of the Company exercisable for, convertible into,
exchangeable for or otherwise entitling the holder to acquire shares of Common
Stock (or Other Securities), and if at any time the number of authorized but
unissued shares of Common Stock (or Other Securities) shall not be sufficient to
effect such exercise, conversion or exchange, the Company shall take such action
as may be necessary to increase its authorized but unissued shares of Common
Stock (or Other Securities) to such number as shall be sufficient for such
purposes.
9. Transfer of
Warrant. This Warrant shall inure to the benefit of the
successors to and assigns of the Holder; provided, however, this Warrant
may not be pledged, sold, assigned or otherwise transferred, directly or
indirectly, by operation of law, change of control, or otherwise, without the
prior written consent of the Company. This Warrant and all rights
hereunder are registrable at the office or agency of the Company referred to
below by the Holder in Person or by his duly authorized attorney, upon surrender
of this Warrant properly endorsed accompanied by an assignment form in the form
attached to this Warrant, or other customary form approved by the Company, duly
executed by the transferring Holder.
10. Register of
Warrants. The Company shall maintain, at the principal office
of the Company (or such other office as it may designate by notice to the
Holder), a register in which the Company shall record the name and address of
the Person in whose name this Warrant has been issued, as well as the name and
address of each successor and prior owner of such Warrant. The
Company shall be entitled to treat the Person in whose name this Warrant is so
registered as the sole and absolute owner of this Warrant for all
purposes.
6
11. Replacement of
Warrant. On receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and (i) in the case of loss, theft or
destruction, of indemnity from the Holder reasonably satisfactory in form to the
Company (and without the requirement to post any bond or other security), or
(ii) in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company will execute and deliver to the Holder a new Warrant of
like tenor without charge to the Holder.
12. Warrant Agent. The
Company may, by written notice to the Holder, appoint the transfer agent and
registrar for the Common Stock as the Company’s agent for the purpose of issuing
Common Stock (or Other Securities) on the exercise of this Warrant pursuant to
Section 1,
and the Company may, by written notice to the Holder, appoint an agent having an
office in the United States of America for the purpose of replacing this Warrant
pursuant to Section 11, or
any of the foregoing, and thereafter any such replacement shall be made at such
office by such agent.
13. No Rights or Liabilities as a
Stockholder. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the
Company. Nothing contained in this Warrant shall be construed as
conferring upon the Holder the right to vote or to consent or to receive notice
as a stockholder of the Company on any matters or with respect to any rights
whatsoever as a stockholder of the Company. No dividends or interest
shall be payable or accrued in respect of this Warrant or the interest
represented hereby or the Common Stock (or Other Securities) purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised in accordance with its terms.
14. Notices, etc. All
notices and other communications from the Company to the Holder shall be mailed
by first class certified mail, postage prepaid, at such address as may have been
furnished to the Company in writing by the Holder or at the address shown for
the Holder on the register of Warrants referred to in Section 10.
15. Transfer
Restrictions. This Warrant has not been and is not being
registered under the provisions of the 1933 Act or any state securities laws and
this Warrant may not be transferred unless (i) the transferee is an
“accredited investor” (as defined in Regulation D under the ▇▇▇▇ ▇▇▇) or a
QIB in a transfer that meets the requirements of Rule 144A and
(ii) the Holder shall have delivered to the Company an opinion of counsel,
reasonably satisfactory in form, scope and substance to the Company, to the
effect that this Warrant may be sold or transferred without registration under
the 1933 Act. Prior to any such transfer, such transferee shall have
represented in writing to the Company that such transferee has requested and
received from the Company all information relating to the business, properties,
operations, condition (financial or other), results of operations or prospects
of the Company deemed relevant by such transferee; that such transferee has been
afforded the opportunity to ask questions of the Company concerning the
foregoing and has had the opportunity to obtain and review certain reports and
other information concerning the Company which at the time of such transfer have
been filed by the Company with the SEC pursuant to the 1934 Act.
16. Legend. Unless
theretofore registered for resale under the 1933 Act, each certificate for
shares issued upon exercise of this Warrant shall bear the following
legend:
7
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE RESOLD, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE 1933 ACT, OR AN OPINION OF COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER
THE 1933 ACT.
17. Amendment;
Waiver. This Warrant and any terms hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
18. Miscellaneous. This
Warrant shall be construed and enforced in accordance with and governed by the
internal laws of the State of New York. The headings, captions and
footers in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
* * * *
*
[The
Remainder Of This Page Is Intentionally Left Blank.]
8
IN WITNESS WHEREOF, the
Company has caused this Warrant to be duly executed on its behalf by one of its
officers thereunto duly authorized.
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BERLINER COMMUNICATIONS, INC.
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By:
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Name:
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Title:
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Signature
Page to
ASSIGNMENT
For value
______________ hereby sell(s), assign(s) and transfer(s) unto ______________
(Please insert social security or other Taxpayer Identification Number of
assignee: _____________) the attached original, executed Common Stock Purchase
Warrant (the “Warrant”) to purchase
________ shares
of Common Stock of Berliner Communications, Inc., a Delaware corporation
(the “Company”), and hereby
irrevocably constitutes and appoints ______________ attorney to transfer the
Warrant on the books of the Company, with full power of substitution in the
premises.
In
connection with any transfer of the Warrant within the period prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the 1933 Act (or any successor provision) (other than any transfer
pursuant to a registration statement that has been declared effective under the
1933 Act), the undersigned confirms that such Warrant is being
transferred:
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o
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To
the Company or a subsidiary thereof;
or
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o
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To
a QIB pursuant to and in compliance with Rule 144A;
or
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o
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To
an “accredited investor” (as defined in Regulation D under the ▇▇▇▇
▇▇▇) pursuant to and in compliance with the 1933 Act;
or
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o
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Pursuant
to and in compliance with Rule 144 under the 1933
Act;
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and
unless the box below is checked, the undersigned confirms that, to the knowledge
of the undersigned, such Warrant is not being transferred to an “affiliate” (as
defined in Rule 144 under the ▇▇▇▇ ▇▇▇) of the Company.
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o
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The
transferee is an affiliate of the
Company.
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Capitalized
terms used in this Assignment and not defined in this Assignment shall have the
respective meanings provided in the Warrant.
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Dated:
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Name:
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Signature(s)
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Exhibit 1
FORM
OF SUBSCRIPTION
BERLINER
COMMUNICATIONS, INC.
(To be
signed only on exercise of Common Stock Purchase Warrant)
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TO:
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Berliner
Communications, Inc.
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[Address]
Attention:
Chief Executive Officer
Facsimile
No.: (___) ___-____
1.
The undersigned Holder of
the attached original, executed Common Stock Purchase Warrant (the “Warrant”) hereby
elects to exercise its purchase right under such Warrant with respect
to _______ shares (the “Exercise Shares”) of
Common Stock, as defined in the Warrant, of Berliner Communications, Inc., a
Delaware corporation (the “Company”).
2.
The undersigned Holder
(check one):
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¨
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elects
to pay the Aggregate Purchase Price for such shares of Common Stock
(i) in lawful money of the United States or by the enclosed certified
or official bank check payable in United States dollars to the order of
the Company in the amount of $_________, or (ii) 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 Form of Subscription pursuant to the instructions of the
Company;
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or
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¨
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elects
to receive shares of Common Stock having a value equal to the value of the
Warrant calculated in accordance with Section 1(b) of the
Warrant.
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3. Please
issue a stock certificate or certificates representing the appropriate number of
shares of Common Stock in the name of the undersigned or in such other name(s)
as is specified below:
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Name:
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||||||
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Address:
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Social
Security or Tax Identification Number (if any):
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Ex-1
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Dated:
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||||
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(Signature must conform to name of Holder as
specified on the face of the Warrant)
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||||
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(Address)
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Ex-2