EXHIBIT 10.12
WARRANT
FOR
SHARES OF COMMON STOCK
OF
FIELDWORKS, INCORPORATED
FOR VALUE RECEIVED, ________________ or its successors or assigns
("Holder"), is hereby entitled to subscribe for and purchase from Fieldworks,
Incorporated, a Minnesota corporation (the "Company"), up to the total number of
Warrant Shares (as calculated pursuant to Section 3(A)) of fully paid and
nonassessable shares of the Company's Common Stock, or such greater or lesser
number of such shares as may be determined by application of the anti-dilution
provisions of this warrant, at an exercise price per share equal to 80% of the
price per share received by the Company in its next sale of equity securities
with gross proceeds of $2.5 million or more (the "Warrant Exercise Price").
This warrant may be exercised by Investor at any time after the
initial public offering of the Company's Common Stock is effective until a date
on or prior to three years from the date hereof.
This warrant is subject to the following provisions, terms and
conditions:
1. (a) The rights represented by this warrant may be exercised by
the holder hereof, in whole or in part, by written notice of exercise delivered
to the Company at least twenty (20) days prior to the intended date of exercise
and by the surrender of this warrant (properly endorsed if required) at the
principal office of the Company and upon payment to it by cash, certified check
or bank draft of the purchase price for such shares or by exercise of the
Conversion Right as provided in (b) below. The shares so purchased shall be
deemed to be issued as of the close of business on the date on which this
warrant has been exercised by payment to the Company of the Warrant Exercise
Price unless the Conversion Right has been exercised. Certificates for the
shares of stock so purchased, bearing the restrictive legend set forth at the
end of this warrant, shall be delivered to the holder within fifteen (15) days
after the rights represented by this warrant shall have been so exercised, and,
unless this warrant has expired, a new warrant representing the number of
shares, if any, with respect to which this warrant has not been exercised shall
also be delivered to the holder hereof within such time. No fractional shares
shall be issued upon the exercise of this warrant.
(b) In lieu of payment, the rights represented by this warrant
may also be exercised by a written notice of exercise specifying that the
Investor wishes to convert all of this warrant (the "Conversion Right") into
that number of shares of Common Stock as follows: the number of shares of Common
Stock equal to the quotient obtained by dividing (x) the value of the shares
subject to the warrant
(determined by subtracting the aggregate warrant exercise price in effect
immediately prior to the exercise of the Conversion Right from the aggregate
fair market value of the shares of Common Stock issuable upon exercise of this
warrant immediately prior to the exercise of the Conversion Right) by (y) the
fair market value of one share of Common Stock immediately prior to the exercise
of the Conversion Right. For purposes of this section 1(b), the fair market
value of a share of Common Stock as of a particular date (the "Determination
Date") shall mean:
(i) If the Company's Common Stock is traded on an exchange or is
quoted on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") National Market System, then the
closing or last sale price, respectively, reported for the business
day immediately preceding the Determination Date.
(ii) If the Company's Common Stock is not traded on an exchange
or on the NASDAQ National Market System but is quoted on NASDAQ, then
the mean of the closing bid and asked prices reported for the business
day immediately preceding the Determination Date.
2. The Company covenants and agrees that all shares that may be
issued upon the exercise of the rights represented by this warrant shall, upon
issuance, be duly authorized and issued, fully paid and nonassessable shares.
The Company further covenants and agrees that 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 issue or transfer upon
exercise of the subscription 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.
3. This warrant shall be exercisable for the number of Warrant
Shares, as adjusted, as provided for in this Section 3(A), and subject to
adjustment from time to time as provided in this Section 3(B).
(A) Warrant Shares: Subject to adjustment under this Section 3, the number
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of Warrant Shares which may be purchased by the holder of this warrant shall be
equal to:
10% x $ = Warrant Shares
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Warrant Exercise Price per share
(B) Anti-dilution:
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(i) If the Company at any time divides the outstanding shares of
its Common Stock into a greater number of shares (whether pursuant to
a stock split, stock dividend or otherwise), and conversely, if the
outstanding shares of its Common Stock are combined into a smaller
number of shares, the Warrant Exercise Price in effect immediately
prior to such division or
combination shall be proportionately adjusted to reflect the reduction
or increase in the value of each such share.
(ii) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the
Company with another corporation, or the sale of all or substantially
all of its assets to another corporation shall be effected in such a
way that holders of the Company's Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for
such shares, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the holder of this
warrant shall have the right to purchase and receive upon the basis
and upon the terms and conditions specified in this warrant and in
lieu of the shares of the Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock, other securities or assets
as would have been issued or delivered to the holder of this warrant
if it had exercised this warrant and had received such shares of
Common Stock prior to such reorganization, reclassification,
consolidation, merger or sale. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument executed and
mailed to the registered holder of this warrant at the last address of
such holder appearing on the books of the Company, the obligation to
deliver to such holder such shares of stock, securities or assets as,
in accordance with the foregoing provisions, such holder may be
entitled to purchase.
(iii) If the Company takes any other action, or if any other
event occurs, which does not come within the scope of the provisions
of Section 3(B)(i) or (ii), but which should result in an adjustment
in the Warrant Exercise Price and/or the number of shares subject to
this warrant in order to fairly protect the purchase rights of the
holder of this warrant, an appropriate adjustment in such purchase
rights shall be made by the Company.
(iv) Upon each adjustment of the Warrant Exercise Price, the
holder of this warrant shall thereafter be entitled to purchase, at
the Warrant Exercise Price resulting from such adjustment, the number
of shares obtained by multiplying the Warrant Exercise Price in effect
immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Warrant Exercise Price resulting
from such adjustment.
(v) Upon any adjustment of the Warrant Exercise Price, the
Company shall give written notice thereof, by first class mail,
postage prepaid, addressed to the registered holder of this warrant at
the address of such holder
as shown on the books of the Company, which notice shall state the
Warrant Exercise Price resulting from such adjustment and the increase
or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this warrant, setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based.
4. This warrant shall not entitle the holder hereof to any voting
rights or other rights as a shareholder of the Company.
5. The holder of this warrant, by acceptance hereof, agrees to give
written notice to the Company before transferring this warrant or transferring
any shares of the Company's Common Stock issuable or issued upon the exercise of
this warrant of the holder's intention to do so, describing briefly the manner
of any proposed transfer of this warrant or such holder's intention as to the
shares of Common Stock issuable upon the exercise hereof or the intended
disposition to be made of shares of Common Stock upon such exercise. Promptly
upon receiving such written notice, the Company shall present copies thereof to
counsel for the Company. If, in the opinion of such counsel, the proposed
transfer of this warrant or disposition of shares may be effected without
registration or qualification (under any federal or state law) of this warrant
or the shares of Common Stock issuable or issued upon the exercise hereof, the
Company, as promptly as practicable, shall notify such holder of such opinion,
whereupon such holder shall be entitled to transfer this warrant, or to exercise
this warrant in accordance with its terms and dispose of the shares received
upon such exercise or to dispose of shares of Common Stock received upon the
previous exercise of this warrant, all in accordance with the terms of the
notice delivered by such holder to the Company, provided that an appropriate
legend in substantially the form set forth at the end of this warrant respecting
the foregoing restrictions on transfer and disposition may be endorsed on this
warrant or the certificates for such shares.
6. Subject to the provisions of Section 5, this warrant and all
rights hereunder are transferable, in whole or in part, at the principal office
of the Company by the holder hereof in person or by duly authorized attorney,
upon surrender of this warrant properly endorsed to any person or entity who
represents in writing that he/it is acquiring the warrant for investment and
without any view to the sale or other distribution thereof. Each holder of this
warrant, by taking or holding the same, consents and agrees that the bearer of
this warrant, when endorsed, may be treated by the Company and all other persons
dealing with this warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented by this warrant, or to
the transfer hereof on the books of the Company, any notice to the contrary
notwithstanding; but until such transfer on such books, the Company may treat
the registered owner hereof as the owner for all purposes.
7. Neither this warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
8. The Company agrees that each time it shall determine to proceed
with the preparation and filing of a registration statement under the Securities
Act it will use all reasonable efforts to allow the inclusion of the Warrant
Shares in such registration statement; provided, however, that the inclusion of
the Warrant Shares in such registration statement shall be subject to the
approval of the managing underwriter and subject to the good faith determination
of the managing underwriter that the inclusion of such Warrant Shares would not
reduce the number of shares to be offered by the Company nor interfere with the
successful marketing of such shares by the Company.
IN WITNESS WHEREOF, the Company has caused this warrant to be signed
and delivered by a duly authorized officer as of the _____ day of September,
1996.
FIELDWORKS, INCORPORATED
By________________________________
Its____________________________
RESTRICTION ON TRANSFER
The security evidenced hereby has not been registered under the
Securities Act of 1933 or any state securities laws and may not be sold,
transferred, assigned, offered, pledged or otherwise distributed for value
unless there is an effective registration statement under such act or laws
covering such security or the Company receives an opinion of counsel for the
holder of this security (concurred to by counsel for the Company) stating that
such sale, transfer, assignment, pledge or distribution is exempt from the
registration and prospectus delivery requirements of the Securities Act of 1933
and all applicable state securities laws.
WARRANT EXERCISE
(To be signed only upon exercise of warrant)
The undersigned, the holder of the foregoing warrant, hereby
irrevocably elects to exercise the purchase right represented by such warrant
for, and to purchase thereunder, ______________________ of the shares of Common
Stock of Fieldworks, Incorporated, to which such warrant relates and herewith
makes payment of $_________________________ therefor in cash or by check or
elects to exercise the Conversion Right as provided in the warrant and requests
that the certificates for such shares be issued in the name of, and be delivered
to ___________________ whose address is set forth below the signature of the
undersigned.
Dated:
[Signature]
[Address]
WARRANT ASSIGNMENT
(To be signed only upon transfer of warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto __________________________________________________ the purchase
right represented by the foregoing warrant to purchase the shares of Common
Stock of Fieldworks, Incorporated, to which such warrant relates and appoints
attorney to transfer such purchase right on the books of
_______________________________________ with full power of substitution in the
premises.
Dated:
[Signature]
[Name and Address of Transferee]