Exhibit (c)(3)
FORM OF WARRANT
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS.
Right to Purchase __________ Shares of Common Stock of
Geotek Communications, Inc.
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Common Stock Purchase Warrant
Geotek Communications, Inc., a Delaware corporation having an address
at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), hereby certifies
that for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, ___________________, having an address at
__________________________________ ("Purchaser") or any other Warrant Holder is
entitled, on the terms and conditions set forth below, to purchase from the
Company at any time after the date hereof and ending ___________ (___) months
after the date hereof, _______________ (______) shares of fully paid and
nonassessable shares of Common Stock, $.01 par value, of the Company (the
"Common Stock"), at the Purchase Price (hereinafter defined), as the same may be
adjusted pursuant to Section 5 herein.
1. Definitions.
(a) the term "Warrant" shall mean this Common Stock Purchase
Warrant.
(b) the term "Warrant Holder" shall mean the Purchaser or any
assignee of all or any portion of this Warrant at any given time who, at the
time of assignment, acquired the right to purchase at least 20,000 Warrant
Shares (such number being subject to adjustment after the date hereof pursuant
to Section 5 herein.)
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(c) the term "Warrant Shares" shall mean the shares of Common
Stock or other securities issuable upon exercise of this Warrant.
(d) the term "Purchase Price" shall mean __________ Dollars
and __________ Cents United States Dollars ($_____) per share of Common Stock,
as adjusted upon any stock split, split up, recapitalization or other
reorganization with respect to the Common Stock.
(e) the term "Act" shall mean the Securities Act of 1933, as
amended.
(f) the term "Exchange Act" shall mean the Securities and
Exchange Act of 1934, as amended.
(g) the term "SEC" or "Commission" shall mean the Securities
and Exchange Commission or any successor agency.
(h) the term "Rule 144" shall mean Rule 144 promulgated under
the Act, as amended, and any successor rules promulgated under the Act.
(i) other terms used herein which are defined in that certain
Convertible Securities Subscription Agreement, dated December 31, 1996 (the
"Subscription Agreement"), between the Company and the Purchaser shall have the
same meanings herein as therein.
2. Exercise of Warrant.
This Warrant may be exercised by the Warrant Holder, in whole or in
part, at any time and from time to time by surrender of this Warrant, together
with the form of exercise at the end hereof duly executed by the Warrant Holder,
and delivery of the Purchase Price for such Warrant Shares to the Company, at
the Company's principal office. In the event that the Warrant is not exercised
in full, the number of Warrant Shares shall be reduced by the number of such
Warrant Shares for which this Warrant is exercised, and the Company, at its
expense, shall forthwith issue and deliver to or upon the order of the Warrant
Holder a new Warrant of like tenor in the name of the Warrant Holder or as the
Warrant Holder (upon payment by the Warrant Holder of any applicable transfer
taxes) may request, reflecting such adjusted Warrant Shares.
Notwithstanding anything to the contrary contained herein, each form of
warrant exercise delivered to the Company by the Warrant Holder shall be
accompanied by the Warrant Holder's representation that, after giving effect to
the shares of the Company's Common Stock to be issued pursuant to such notice of
exercise, the total number of shares of the Company's Common Stock deemed
beneficially owned by the Holder, together with
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all shares of the Company's Common Stock deemed beneficially owned by the
Holder's "affiliates" as defined in Rule 144 of the Securities Act, will not
exceed 4.9% of the total issued and outstanding shares of the Company's Common
Stock.
3. Delivery of Stock Certificates.
(a) Subject to the terms and conditions of this Warrant, as
soon as practicable after the exercise of this Warrant in full or in part, and
in any event within two (2) business days thereafter, the Company at its expense
(including, without limitation, the payment by it of any applicable issue taxes)
will cause to be issued in the name of and delivered to the Warrant Holder, or
as the Warrant Holder (upon payment by the Warrant Holder of any applicable
transfer taxes) may lawfully direct, a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock to which the
Warrant Holder shall be entitled on such exercise, together with any other stock
or other securities or property (including cash, where applicable) to which the
Warrant Holder is entitled upon such exercise.
(b) This Warrant may not be exercised as to fractional shares
of Common Stock. In the event that the exercise of this Warrant, in full or in
part, would result in the issuance of any fractional share of Common Stock, then
the number of Warrant Shares for which this Warrant shall have been exercised
shall be rounded up or down to the nearest whole number of Warrant Shares.
(c) Upon the exercise of this Warrant in full, or its exchange
pursuant to clause (ii) of paragraph (d) of Section 5 below, or the issuance of
any replacement Warrant pursuant to Section 9 hereof, this Warrant and rights of
the Warrant Holder relating to its exercise and the right of the Warrant Holder
to receive any additional shares of the Company's Common Stock under the terms
of this Warrant shall terminate.
4. Covenants Of the Company.
(a) The Company shall use its reasonable best efforts to
insure that a Registration Statement under the Act covering the issuance of the
Warrant Shares and the resale or other disposition thereof by the Warrant Holder
is effective as provided in the Registration Rights Agreement.
(b) The Company shall take all necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, including, without limitation the notification of the National
Association of Securities Dealers, Inc., for the legal and valid issuance of
this Warrant and the Warrant Shares to the Warrant Holder under this Warrant.
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(c) From the date hereof through the last date on which this
Warrant is exercisable, the Company shall take all steps reasonably necessary
and within its control to insure that the Common Stock remains listed on either
the Nasdaq National Stock Market, the American Stock Exchange or the New York
Stock Exchange (collectively, the "Exchange") and shall not amend its
Certificate of Incorporation or By-laws so as to adversely affect in any
material way any rights of the Warrant Holder under this Warrant.
(d) The Company shall at all times reserve and keep available,
solely for issuance and delivery as Warrant Shares hereunder, such shares of
Common Stock as shall from time to time be issuable as Warrant Shares.
(e) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when issued in accordance with the
terms hereof, shall be validly issued, fully paid, non-assessable, free and
clear of any liens created by the Company and shall be, as long as the Warrant
Shares are subject to an effective registration statement or the applicable SEC
Rule 144(k) waiting period has expired, free of any restrictive legends. The
Company has authorized and reserved for issuance to the Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(f) With a view to making available to the Warrant Holder the
benefits of Rule 144 promulgated under the Act and any other rule or regulation
of the SEC that may at any time permit the Warrant Holder to sell securities of
the Company to the public without registration, the Company agrees to use its
reasonable best efforts to:
(i) make and keep public information available, as
those terms are understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the Exchange Act;
and
(iii) furnish to any Warrant Holder forthwith upon
request a written statement by the Company that it has complied with the
reporting requirements of Rule 144 and of the Act and the Exchange Act, a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents so filed by the Company as may be reasonably requested to
permit any such Warrant Holder to take advantage of any rule or regulation of
the SEC permitting the selling of any such securities without registration.
5. Adjustment of Exercise Price and Number of Shares. The number of and
kind of securities purchasable upon exercise of this Warrant and the Purchase
Price shall be subject to adjustment from time to time as follows:
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(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time after the date hereof but prior to the expiration of
this Warrant subdivide its outstanding securities as to which purchase rights
under this Warrant exist, by split-up or otherwise, or combine its outstanding
securities as to which purchase rights under this Warrant exist, the number of
Warrant Shares as to which this Warrant is exercisable as of the date of such
subdivision, split-up or combination shall forthwith be proportionately
increased in the case of a subdivision, or proportionately decreased in the case
of a combination. Appropriate adjustments shall also be made to the purchase
price payable per share, but the aggregate purchase price payable for the total
number of Warrant Shares purchasable under this Warrant as of such date shall
remain the same.
(b) Stock Dividend. If at any time after the date hereof the
Company declares a dividend or other distribution on Common Stock payable in
Common Stock or other securities or rights convertible into or exchangeable or
exercisable for Common Stock ("Common Stock Equivalents") without payment of any
consideration by holders of Common Stock for the additional shares of Common
Stock or the Common Stock Equivalents (including the additional shares of Common
Stock issuable upon exercise or conversion thereof), then the number of shares
of Common Stock for which this Warrant may be exercised shall be increased as of
the record date (or the date of such dividend distribution if no record date is
set) for determining which holders of Common Stock shall be entitled to receive
such dividends, in proportion to the increase in the number of outstanding
shares (and shares of Common Stock issuable upon conversion of all such
securities convertible into Common Stock) of Common Stock as a result of such
dividend, and the Purchase Price shall be adjusted so that the aggregate amount
payable for the purchase of all the Warrant Shares issuable hereunder
immediately after the record date (or on the date of such distribution, if
applicable) for such dividend shall equal the aggregate amount so payable
immediately before such record date (or on the date of such distribution, if
applicable).
(c) Other Distributions. If at any time after the date hereof
the Company distributes to holders of its Common Stock, other than as part of
its dissolution, liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
cash, Common Stock or securities convertible into Common Stock), then the per
share Purchase Price of this Warrant shall be adjusted so that the same shall
equal the price determined by multiplying the Purchase Price in effect
immediately prior to the date of such distribution by a fraction whose numerator
shall be the closing price per share of Common Stock on the Exchange on the
effective date of distribution less the then fair market value (as determined by
the Company's Board of Directors and the Holder or, if they cannot agree, by a
mutually acceptable third party at the Company's expense) of the capital stock,
or evidences of indebtedness or other assets so distributed with respect to each
share of Common Stock and whose denominator shall be such closing price per
share of the Common Stock. Such adjustment shall be made
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whenever any such distribution is made and shall be retroactively effective as
of immediately after the record date for the determination of stockholders
entitled to receive such distribution.
(d) Merger, etc. If at any time after the date hereof there
shall be a merger or consolidation of the Company with or into or a transfer of
all or substantially all of the assets of the Company to another entity, then
before such transaction may be consummated and become effective, the Warrant
Holder shall have received (1) prior notice thereof at such time as notice
thereof shall be publicly released or furnished to its stockholders generally by
the Company, whichever is earlier, and (2) such information with respect such
transaction as is furnished by the Company, or otherwise made available, to its
stockholders generally, all at the time such information is so furnished to the
Company's stockholders and, in any event, sufficiently prior to such transaction
becoming effective in order to give the Holder a reasonable opportunity to
decide upon and make the election hereinafter provided, and the Warrant Holder
shall be entitled to receive upon such transfer, merger or consolidation
becoming effective, at the election of the Warrant Holder made prior to the same
becoming effective, either (i) upon payment of the Purchase Price then in
effect, the number of shares or other securities or property of the Company or
of the successor corporation resulting from such merger or consolidation, which
would have been received by Warrant Holder for the shares of stock subject to
this Warrant had this Warrant been exercised just prior to such transfer, merger
or consolidation becoming effective or to the applicable record date thereof, as
the case may be, or (ii) a warrant to acquire common stock or other securities
of such other entity at an exercise price and upon such other terms as will
provide the Warrant Holder with economic and other benefits and rights
substantially equivalent to those provided herein.
(e) Reclassification, etc. If at any time after the date
hereof there shall be a reorganization or reclassification 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, then the Warrant Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from such
reorganization or reclassification, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
at such time been exercised.
(f) Purchase Price Adjustment. In the event that the Company
issues or sells any Common Stock or securities which are convertible into or
exchangeable for its Common Stock, or any warrants or other rights to subscribe
for or to purchase, or any options for the purchase of, its Common Stock or any
such convertible or exchangeable securities (other than in connection with a
public offering, the Preferred Stock, the warrants to be issued by the Company
in conjunction with the Preferred Stock, shares or
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options issued or which may be issued pursuant to the Company's employee or
director option plans or shares issued upon exercise of options, warrants or
rights, or upon exercise, conversion or exchange of securities convertible into
or exercisable or exchangeable for other securities of the Company, whether now
or hereafter outstanding, or pursuant to the terms of the Preferred Stock
outstanding on the date of the Subscription Agreement and listed in the Exchange
Act Reports) at an effective purchase price per share which is less than the
Purchase Price then in effect or the fair market value, whichever is lower, of
the Common Stock on the trading day next preceding such issue or sale, then in
each such case, the Purchase Price in effect immediately prior to such issue or
sale shall be reduced effective concurrently with such issue or sale to an
amount determined by multiplying the Purchase Price then in effect by a
fraction, (x) the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding immediately prior to such issue or sale, plus
(2) the number of shares of Common Stock which the aggregate consideration
received by the Company for such additional securities would purchase at such
fair market value or Purchase Price, as the case may be, then in effect, plus
(3) the number of shares of Common Stock issuable upon exercise, conversion or
exchange of all of the Company's then outstanding convertible securities which
are, as of the time of the new issuance, convertible or exchangeable into the
Company's Common Stock; and (y) the denominator of which shall be the sum of (1)
the number of shares of Common Stock of the Company outstanding immediately
after such issue or sale plus (2) the number of shares of Common Stock issuable
upon exercise, conversion or exchange of all of the Company's then outstanding
convertible securities which are, as of the time of the new issuance,
convertible or exchangeable into the Company's Common Stock.
In the event of any such issuance for a consideration which is less
than such fair market value and also less than the Purchase Price then in
effect, then there shall be only one such adjustment by reason of such issuance,
such adjustment to be that which results in the greatest reduction of the
Purchase Price computed as aforesaid. For the purposes of this Section 5(f), the
"aggregate consideration received by the company" is equal to the total amount,
if any, received or receivable by the Company as consideration for the issuance
or sale of all such securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the exercise, conversion or
exchange thereof at the time such securities first become exercisable,
convertible or exchangeable.
6. 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 of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Warrant Holder
against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor
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on such exercise, and (b) will take all such action as may be reasonably
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable Warrant Shares on the exercise of this Warrant.
7. Notice of Adjustments; Notices. Whenever the Purchase Price or
number of Shares purchasable hereunder shall be adjusted pursuant to Section 5
hereof, the Company shall execute and deliver to the Warrant Holder a
certificate 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 Purchase 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 Warrant
Holder.
8. Rights As Stockholder. Prior to exercise of this Warrant, the
Warrant Holder shall not be entitled to any rights as a stockholder of the
Company with respect to the Warrant Shares, including (without limitation) the
right to vote such shares, receive dividends or other distributions thereon or
be notified of stockholder meetings. However, in the event of 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 (other
than a cash dividend) or other distribution, any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right (other than a right to
vote), the Company shall mail to each Warrant Holder, at least ten (10) days
prior to the date specified therein, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
9. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of any such loss, theft or destruction of the Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company, upon receipt by it of a
form of Warrant reflecting the terms of the new Warrant, at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
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10. Specific Enforcement; Consent to Jurisdiction.
(a) The Company and the Warrant Holder acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
(b) Each of the Company and the Warrant Holder (i) hereby
irrevocably submits to the jurisdiction of the Supreme Court of the State of New
York and the United States District Court for the Southern District of New York
for the purposes of any suit, action or proceeding arising out of or relating to
this Warrant and (ii) hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Warrant Holder consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address in effect for notices to it under this Warrant and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing in this paragraph shall affect or limit any right to
serve process in any other manner permitted by law.
11. Entire Agreement; Amendments. This Warrant and the provisions
contained in the Subscription Agreement, the Registration Rights Agreement or
the Certificate of Designation and incorporated into this Warrant and the
Warrant Shares contain the entire understanding of the parties with respect to
the matters covered hereby and thereby and, except as specifically set forth
herein and therein, neither the Company nor the Warrant Holder makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Warrant may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment or
waiver is sought.
12. Restricted Securities. Sections 2.1, 2.2, 2.3 and 2.4 of the
Subscription Agreement are incorporated herein by reference and hereby made a
part hereof.
13. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or receipt by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if
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delivered other than on a business day during normal business hours where such
notice is to be received), or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
to the Company:
Geotek Communications, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel and Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
to the Warrant Holder:
Fax: (___) ___-____
with copies to:
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Fax: (___) ___-____
Either party hereto may from time to time change its address for notices under
this Section 13 by giving at least ten (10) days prior written notice of such
changed address to the other party hereto.
14. Miscellaneous. This Warrant and any term 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. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of New York. The headings 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.
15. Expiration. The right to exercise this Warrant shall expire
____________ (__) months after the date hereof; provided, however, that such
period shall be increased by and for the number of days during which the Warrant
Holder is precluded from exercising this Warrant because of any set-off period,
black-out period, failure of the Company to have filed or accurately maintained
effective registration of the Registration Statement or otherwise.
16. Transfer Restrictions.
(a) Neither this Warrant nor the securities issuable upon
exercise hereof may be transferred, disposed of or encumbered (any such action,
a "Transfer") except in accordance with and subject to the provisions of the
Securities Act, any applicable state securities laws and the rules and
regulations promulgated thereunder. If at the time of a Transfer, a registration
statement is not in effect to register this Warrant or the issuance of the
Warrant Shares, this Warrant may only be transferred to an "Accredited Investor"
(as defined in the Securities Act) and the Company may require the Warrant
Holder to make such customary representations and deliver such customary
opinions of counsel, and may place such customary legends on certificates
representing this Warrant, as may be reasonably required in the opinion of
counsel to the Company to permit a transfer without such registration.
(b) This Warrant may not be sold or otherwise transferred to a
competitor of the Company engaged in, or to the knowledge of the holder of this
Warrant,
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planning to engage in the business of providing wireless voice or data
communications services to mobile customers or of providing equipment in
connection therewith.
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Dated: ______ __, ____ GEOTEK COMMUNICATIONS, INC.
By:
Title:
[CORPORATE SEAL]
Attest:
By:_______________________
Its:
NAME OF INVESTOR:
_______________________
By its:
By:
Name:
Title:
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FORM OF WARRANT EXERCISE
(To be signed only on exercise of Warrant)
TO _________________________
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _________
shares of Common Stock of Geotek Communications, Inc., a _______________
corporation (the "Company"), and herewith makes payment of $__________ therefor,
and requests that the certificates for such shares be issued in the name of, and
delivered to _________________, whose address is
__________________________________.
Dated: __________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
__________________________________________
(Address)
Tax Identification Number:_____________
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
_________________ the right represented by the within Warrant to purchase
_____________ shares of Common Stock of Geotek Communications, Inc., a
______________ corporation, to which the within Warrant relates, and appoints
_________________ Attorney to transfer such right on the books of Geotek
Communications, Inc., with full power of substitution in the premises.
Dated: _________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
_________________________________________
(Address)
Signed in the presence of:
_______________________________
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