Exhibit 10.2(a)
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND NEITHER MAY BE SOLD, ASSIGNED OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITY UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, THAT THE SALE,
ASSIGNMENT OR TRANSFER IS PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
(void after 5:00 p.m., New York City time, on [DATE])
No. XX-XX __________ Shares Dated as of [DATE]
FOR VALUE RECEIVED, PRO TECH COMMUNICIATIONS, INC., a Florida corporation
(the "Company"), as of the date hereof (the "Grant Date"), hereby issues this
warrant (the "Warrant") and certifies that ______________ (the "Holder") is
granted the right, subject to the provisions of this Warrant, to purchase from
the Company, during the period commencing at 9:00 a.m. New York City local time
on the Grant Date and expiring, unless earlier terminated as hereinafter
provided, at 5:00 p.m. New York City local time on [DATE] or, if such day is a
day on which banking institutions in the City of New York are authorized by law
to close, then on the next succeeding day that shall not be such a day (the
"Exercise Period"), up to ______________ (_______) fully paid and non-assessable
shares of common stock, par value $.001 per share, of the Company at a price of
$____ per share (as adjusted from time to time as provided herein, the "Exercise
Price"). As used herein, "Common Stock" means the shares of common stock, par
value $.001 per share, of the Company as constituted on the Grant Date, together
with any other equity securities that may be issued by the Company in addition
thereto or in substitution therefor. The number and character of shares of
Common Stock to be received upon the exercise of this Warrant and the Exercise
Price may be adjusted from time to time as hereinafter set forth. The shares of
Common Stock deliverable upon such exercise, as adjusted from time to time, are
sometimes referred to herein as the "Warrant Shares." Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated
shall be at any time enforceable by anyone. This Warrant is issued, and all the
rights hereunder are held, subject to all of the conditions, limitations and
provisions set forth herein.
1. Exercise of Warrant. This Warrant may be exercised in whole or in part,
at any time or from time to time, during the Exercise Period. Subject to the
restrictions and limitations set forth above, this Warrant may be exercised by
presentation and surrender of this Warrant to the Company at its principal
office, together with a completed and duly executed Warrant Exercise Form in the
form attached hereto as Exhibit 1 (the "Exercise Form"), payment (either in cash
or by certified or official bank check, payable to the order of the Company) of
the aggregate Exercise Price for the number of shares of Common Stock specified
in the Exercise Form and instruments of transfer, if appropriate, duly executed
by the Holder. If this Warrant is exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant
evidencing the rights of the Holder to purchase the balance of the shares
purchasable hereunder. Upon receipt by the Company of this Warrant, an executed
Exercise Form, the aggregate Exercise Price and any appropriate instruments of
transfer, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Holder. The Company shall pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock upon exercise of this Warrant.
2. Reservation of Shares. During the Exercise Period, the Company shall at
all times reserve for issuance and delivery upon exercise of this Warrant all
shares of Common Stock of the Company from time to time receivable upon exercise
of this Warrant. All such shares shall be duly authorized and, when issued upon
such exercise, shall be validly issued, fully paid, non-assessable and free of
all pre-emptive rights.
3. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant, but the Company shall
issue one additional share of its Common Stock in lieu of each fraction of a
share otherwise called for upon any exercise of this Warrant.
4. Exchange, Transfer or Assignment of Warrant. This Warrant is not
registered under the Securities Act of 1933, as amended (the "1933 Act") nor
under any state securities law or regulation. This Warrant may not be sold,
exchanged, transferred, assigned or otherwise disposed of unless registered
pursuant to the provisions of the 1933 Act or an opinion of counsel in form and
content satisfactory to the Company is delivered to the Company stating that
such sale or other disposition is made in compliance with an available exemption
from such registration. Any sale or other disposition of this Warrant must also
comply with all applicable state securities laws and regulations.
5. Warrant Share Transfer to Comply with the Securities Act of 1933. The
Warrant Shares may not be sold, exchanged, transferred, assigned or otherwise
disposed of unless registered pursuant to the provisions of the 1933 Act, or an
opinion of counsel in form and content satisfactory to the Company is delivered
to the Company stating that such sale or other disposition is made in compliance
with an available exemption from such registration. Any sale or other
disposition of the Warrant Shares must also comply with all applicable state
securities laws and regulations.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
7. Redemption. This Warrant is not redeemable by the Company.
8. Adjustment of Exercise Price, Number or Character of Warrant Shares. The
Exercise Price and the number of Warrant Shares purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events as described
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in this Section 8. Upon each adjustment of the Exercise Price, the Holder of
this Warrant shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares obtained by multiplying the
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 Exercise Price resulting from such
adjustment.
8.1 Subdivision or Combination of Common Stock. In case the Company shall
at any time subdivide its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination shall
be proportionately increased.
8.2 Dividends in Common Stock, Other Stock or Property. If at any time the
holders of Common Stock (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) shall have received or become
entitled to receive, without payment therefor, (a) Common Stock or any shares of
stock or other securities that are at any time directly or indirectly
convertible into or exchangeable for Common Stock, or any rights or options to
subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution, (b) any cash paid or payable otherwise than as a
cash dividend or (c) Common Stock or additional stock or other securities or
property (including cash) by way of spin-off, split-up, reclassification,
combination of shares or similar corporate rearrangement (other than shares of
Common Stock issued as a stock split or other adjustment describe in Section 8.1
above), then and in each such case, the Holder shall, upon the exercise of this
Warrant, be entitled to receive, in addition to the number of shares of Common
Stock receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including cash
in the cases referred to in clauses (b) and (c)above) that such Holder would
hold on the date of such exercise had he or she been the holder of record of
such Common Stock as of the date on which holders of Common Stock received or
became entitled to receive such shares or other property.
8.3 Reclassification. If the Company, by reclassification of securities or
otherwise, shall 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, 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 change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change and the Exercise Price therefor shall be appropriately adjusted.
8.4 Reorganization, Consolidation, Merger or Sale. In the case of any
reorganization of the capital stock of the Company (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for in
this Section 8), any consolidation or merger of the Company with another
corporation, or any sale of all or substantially all of the Company's assets or
any other transaction shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, or other assets or
property (an "Organic Change"), then, as a condition of such Organic Change,
lawful and adequate provisions shall be made by the Company whereby the Holder
hereof shall, until the consummation of such Organic
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Change, have the right to elect to purchase and receive (in lieu of the shares
of the Common Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of this Warrant) such shares of stock, securities
or other assets or property as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of this Warrant.
8.5 Certain Events. If any change in the outstanding Common Stock or any
other event occurs as to which the other provisions of this Section 8 are not
strictly applicable, then the Board of Directors of the Company shall make an
adjustment in the number or class of shares issuable upon exercise of this
Warrant, the Exercise Price or the application of such provisions, so as to
protect such purchase rights so as to fairly protect the purchase rights of the
Holder in accordance with such provisions. The adjustment shall be such as will
give the Holder upon exercise for the same aggregate Exercise Price and the
total number and class of shares as he or she would have owned had the Warrant
been exercised immediately prior to the event and had he or she continued to
hold such shares until after the event requiring adjustment.
8.6 Certificate as to Adjustments. In each case of an adjustment in the
number of shares of Common Stock (or other securities or property) receivable
upon the exercise of this Warrant, the Company shall promptly compute such
adjustment in accordance with the terms of this Warrant and deliver to the
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 Exercise Price and the number of Warrant
Shares purchasable hereunder after giving effect to such adjustment.
8.7 Notices of Record Date, Etc. In the event (a) the Company takes a
record of the holders of Common Stock (or other securities at the time
receivable upon the exercise of this Warrant) for the purpose of entitling them
to receive any dividend (other than a cash dividend) or other distribution, or
any right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or to receive any other right, (b) of any
capital reorganization of the Company (other than a stock split or combination),
any reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a merger for
purposes of change of domicile) or any conveyance of all or substantially all of
the assets of the Company to another corporation or (c) of any voluntary or
involuntary dissolution, liquidation or winding-up of the Company, then, in each
such case, the Company shall deliver to the Holder a notice specifying, as the
case may be, the date on which such record is to be taken for the purpose of
such dividend, distribution or right (and stating the amount and character of
such dividend, distribution or right), the date on which such reorganization,
reclassification, consolidation, merger, dissolution, liquidation or winding-up
is to take place and the time, if any is fixed, in which the holders of record
of Common Stock or such other securities at the time receivable upon the
exercise of this Warrant shall be entitled to exchange their shares of Common
Stock or such other securities for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, dissolution,
liquidation or winding-up. Such notice shall be mailed at least 20 days prior to
the date of the corporate event to which it relates, and this Warrant may be
exercised until no later than five days prior to the date of such corporate
event (if during the Exercise Period).
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9. Legend. In the event of the exercise of this Warrant and the issuance of
any Warrant Shares hereunder, all certificates representing Warrant Shares shall
bear on the face thereof substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL IN FORM,
SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT. ANY SUCH SALE, TRANSFER OR
ASSIGNMENT MUST ALSO COMPLY WITH APPLICABLE STATE SECURITIES
LAWS.
10. Governing Law and Jurisdiction. This Warrant shall be governed by the
internal laws of the State of Connecticut, without regard to the conflicts of
laws principles thereof. The parties hereto hereby submit to the exclusive
jurisdiction of the United States Federal Courts located in the state of
Connecticut with respect to any dispute arising under this Warrant.
11. Notices. Notices, demands and other communications given under this
Warrant shall be in writing and shall be deemed to have been given when
delivered (if personally delivered), on the scheduled date of delivery (if
delivered via commercial courier), three days after mailed (if mailed by
certified or registered mail, return receipt requested) or when sent by
facsimile (if sent by facsimile with evidence of successful transmission
retained by the sender); provided, however, that failure to give proper and
timely notice as set forth in the "with a copy to" provisions below shall not
invalidate a notice properly and timely given to the associated party. Unless
another address or facsimile number is specified by notice hereunder, all
notices shall be sent as follows:
If to the Holder: with a copy to:
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[Holder Address]
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If to the Company: with a copy to:
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Pro Tech Communications, Inc. Pro Tech Communications, Inc.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx Attention: General Counsel
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Facsimile: 000-000-0000 Facsimile: 000-000-0000
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12. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on its
behalf, in its corporate name, by its duly authorized officer, as of the date
first set forth above.
PRO TECH COMMUNICATIONS, INC.
By:
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Name:
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Title:
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EXHIBIT 1
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WARRANT EXERCISE FORM
(to be executed by the Holder in order to exercise the Warrant)
TO: Pro Tech Communications, Inc.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing ____________ shares of common stock, par value $.001
per share, of Pro Tech Comminications, Inc. and hereby makes payment at the rate
of $______ per share, or an aggregate of $__________, in payment therefor.
The undersigned represents, warrants and certifies that all offers and
sales of the common stock received upon exercise of the within Warrant shall be
made (i) pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the "1933 Act"), or pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the 1993 Act
and (ii) in compliance with applicable state securities laws and those of any
other applicable jurisdiction.
Instructions if stock is to be issued to other than to the registered holder of
the within Warrant:
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Name:
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Address:
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Social Security or Taxpayer Identification Number:
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Dated: __________________, 20_____ ------------------------------
Name of Warrant Holder
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Signature
