EXHIBIT 4.9
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE WARRANT
AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
Warrant No. W-[ ]
WIRELESS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to __________________ ("Holder") by
Wireless, Inc., a California corporation (the "Company"), as of the date set
forth beside the Company's signature below.
1. PURCHASE OF SHARES. Subject to the terms and conditions
hereinafter set forth, Holder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall
notify Holder in writing), to purchase from the Company up to 50,000 shares (the
"Shares") of common stock of the Company (the "Common Stock"), at an exercise
price of $2.50 per share (the "Exercise Price"). The Shares and the Exercise
Price shall be subject to adjustment as set forth in Section 7 hereof.
2. EXERCISE PERIOD. This Warrant shall be exercisable
for a period (the "Exercise Period") of 36 months from the date hereof;
PROVIDED, however, that in the event of the earlier closing of (a) the issuance
and sale of shares of the Common Stock in the Company's first underwritten
public offering (the "IPO") pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Act"), (b) a sale of all or
substantially all the assets of the Company, or (c) a merger or reorganization
of the Company into or consolidation with any other entity (excluding a
reorganization or merger, the sole purpose of which is to change the
jurisdiction of incorporation of the Company) in which shares representing a
majority of the Company's voting power immediately prior to the closing of such
merger or reorganization are transferred, this Warrant shall, upon the
consummation of such event, no longer be exercisable and become null and void.
In the event of a proposed transaction of the kind described above, the Company
shall notify Holder in writing at least fifteen (15) days prior to the
consummation of such event or transaction.
3. METHOD OF EXERCISE. While this Warrant remains
outstanding and exercisable during the Exercise Period, Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by: (i) the surrender of the Warrant, together with a duly executed
copy of the form of Exercise Notice attached hereto, to the Secretary of the
Company at its principal offices; and (ii) the payment to the Company by cash,
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check or wire transfer of an amount equal to the aggregate Exercise Price for
the number of Shares being purchased.
4. NET ISSUANCE PROVISION. In lieu of exercising
pursuant to paragraph 3 above, at the Holder's option, while this Warrant
remains outstanding and exercisable during the Exercise Period, Holder may
exercise this Warrant by surrender of this Warrant as determined below ("Net
Issuance"). If the Holder elects the Net Issuance method, the Company will issue
Common Stock in accordance with the following formula:
X = Y(A-B)
------
A
Where:
X = the number of shares of Common Stock to be issued to
the Holder.
Y = the number of shares of Common Stock requested to be
exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Common
Stock.
B = the Exercise Price.
For purposes of the above calculation, current fair market
value of Common Stock shall mean with respect to each share of Common Stock:
(i) if the exercise is in connection with an initial
public offering of the Company's Common Stock, and if the Company's
registration statement relating to such public offering has been
declared effective by the Securities and Exchange Commission (the
"SEC"), then the fair market value per share shall be the initial
"Price to Public" specified in the final prospectus with respect to the
offering;
(ii) if at any time 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 determined in good faith by the Board of Directors of the
Company.
Upon partial exercise by either cash or Net Issuance,
the Company shall promptly issue an amended Warrant representing the remaining
number of shares purchasable thereunder. All other terms and conditions of such
amended Warrant shall be identical to those contained herein, including, but not
limited to, the Exercise Period.
5. CERTIFICATES FOR SHARES. Upon the exercise of the
purchase rights evidenced by this Warrant, one or more certificates for the
number of Shares so purchased shall be issued as soon as practicable thereafter.
Upon any partial exercise of this Warrant, the Company will forthwith issue and
deliver to Holder a new warrant or warrants of like tenor as this Warrant for
the remaining portion of the Common Stock for which this Warrant may still be
exercised.
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6. ISSUANCE OF SHARES. The Company covenants that (a)
the Shares, when issued pursuant to the exercise of this Warrant, will be duly
and validly issued, fully-paid and non-assessable and free from all taxes, liens
and charges with respect to the issuance thereof (except for any applicable
transfer taxes, which shall be paid by Holder) and (b) during the Exercise
Period, the Company will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of Common Stock upon the
exercise of this Warrant.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES.
The number of and kind of securities purchasable upon exercise of this Warrant
and the Exercise Price shall be subject to adjustment from time to time as
follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER
ISSUANCES. If the Company shall at any time prior to the expiration of
this Warrant subdivide its Common Stock, by split or otherwise, or
combine its Common Stock, or issue additional shares of its Common
Stock as a dividend with respect to any shares of its Common Stock, the
number of Shares issuable on the exercise of this Warrant shall
forthwith be proportionately increased in the case of a subdivision or
stock dividend, 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 Shares purchasable under this Warrant (as adjusted)
shall remain the same. Any adjustment under this Section 7(a) shall
become effective as of the record date of such subdivision, combination
or dividend, or in the event that no record date is fixed, upon the
making of such subdivision, combination or dividend.
(b) RECLASSIFICATION, REORGANIZATION AND
CONSOLIDATION. In case of any reclassification, capital reorganization,
or change in the Common Stock of the Company (other than as a result of
a subdivision, combination, or stock dividend provided for in Section
7(a) above), then, as a condition of such reclassification,
reorganization or change, lawful provision shall be made, and duly
executed documents evidencing the same from the Company or its
successor shall be delivered to Holder, so that Holder shall have the
right at any time prior to the expiration of this Warrant to purchase,
at a total price equal to that payable upon the exercise of this
Warrant, the kind and amount of shares of stock and other securities
and property receivable in connection with such reclassification,
reorganization or change by a holder of the same number of shares of
Common Stock as were purchasable by Holder immediately prior to such
reclassification, reorganization or change. In any such case,
appropriate provisions shall be made with respect to the rights and
interest of Holder so that the provisions hereof shall thereafter be
applicable with respect to any shares of stock or other securities and
property deliverable upon exercise hereof, and appropriate adjustments
shall be made to the purchase price per share payable hereunder,
provided the aggregate purchase price shall remain the same.
(c) MERGER AND SALE OF ASSETS. If at any time there
shall be a capital reorganization of the shares of the Company's
stock (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), or a merger or
consolidation of the Company with or into another corporation, whether
or not the Company is the surviving corporation, or the sale of all or
substantially all of the
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Company's properties and assets to any other person (hereinafter
referred to as a "Merger Event"), then, as a part of such Merger Event,
lawful provision shall be made so that the Holder shall thereafter be
entitled to receive, upon exercise of the Warrant, the number of shares
of common stock or other securities of the successor corporation
resulting from such Merger Event equivalent in value to that which
would have been issuable if Holder had exercised this Warrant
immediately prior to the Merger Event. In any such case, appropriate
adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this
Warrant with respect to the rights and interest of the Holder after the
Merger Event to the end that the provisions of this Warrant (including
adjustments of the Exercise Price and number of shares of Common Stock
purchasable) shall be applicable to the extent possible.
(d) CERTIFICATE OF ADJUSTMENT. When any adjustment is
required to be made in the number or kind of shares purchasable upon
exercise of the Warrant or in the Exercise Price, an officer of the
Company shall promptly compute such adjustment in accordance with the
terms of this Warrant and prepare 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 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
Holder.
8. COMPLIANCE WITH SECURITIES LAWS. Holder hereby represents
and warrants that:
(a) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant and
the Common Stock issuable upon exercise hereof (collectively, the
"Securities") will be acquired for investment for Holder's own account,
not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and Holder has no present intention
of selling, granting any participation in or otherwise distributing the
same. Holder does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to
any person with respect to any of the Securities. Holder represents
that it has full power and authority to enter into this Warrant.
(b) INVESTMENT EXPERIENCE. Holder acknowledges that it is
able to fend for itself, can bear the economic risk of its investment
and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the investment
in this Warrant. Holder also represents it has not been organized for
the purpose of acquiring this Warrant.
(c) ACCREDITED INVESTOR. Holder is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the
Securities and Exchange Commission (the "SEC"), as presently in effect.
(d) RESTRICTED SECURITIES. Holder understands that
the Securities are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering,
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and that under such laws and applicable regulations such securities may
be resold without registration under the Act only in certain limited
circumstances. In this connection, Holder represents that it is
familiar with SEC Rule 144 promulgated under the Act, as presently in
effect, and understands the resale limitations imposed thereby and by
the Act.
9. FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting the representations set forth above, Holder further agrees not to make
any disposition of all or any portion of the Securities unless and until there
is then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement, or (i) Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, (ii) the transferee
Holder shall have agreed in writing to become bound by the restrictions
applicable to the transferor Holder, including without limitation, the
provisions of this Section 9 and Section 17 hereof, and shall make the
representations and warranties set forth in Section 8 hereof in favor of the
Company and (iii) if requested by the Company, Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act.
10. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the fair market value of the Company's Common
Stock as determined in good faith by the Company's Board of Directors.
11. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant,
Holder shall not be entitled to any rights of a stockholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of stockholder meetings, and Holder, as such, shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company, except as set forth in Section 7(d) above.
12. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
13. NOTICES. All notices or other communications hereunder
shall be in writing and shall be deemed given when (i) personally delivered,
(ii) three business days after being sent by prepaid certified or registered
U.S. mail, or one business day after being sent, if sent by nationally
recognized overnight courier via overnight delivery, to the address of the party
to be noticed as set forth herein or such other address as such party last
provided to the other by written notice, or (iii) one business day following
receipt of electronic confirmation, if by facsimile. All notices shall be sent
to the addresses and facsimile numbers set forth below or
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such other address as may be given from time to time under the terms of this
notice provision with at least ten (10) days prior written notice:
If to the Company:
Wireless, Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
If to Holder:
At the address and facsimile number
indicated on the signature page hereof.
14. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant shall inure to the benefit of, and be binding upon, the Company, its
successors and assigns and shall inure to the benefit of the Holder's
successor's, legal representatives and permitted assigns; PROVIDED, that nothing
in this Section 14 shall be deemed a waiver of any restrictions on assignment or
transfer as provided in Section 9 above.
15. AMENDMENTS AND WAIVERS. Any term of this Warrant
may be amended and the observance of any term of this Warrant may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of each of the parties hereto. Any
waiver or amendment effected in accordance with this section shall be binding
upon Holder and the Company.
16. GOVERNING LAW. This Warrant shall be governed by
the laws of the State of California as applied to agreements among California
residents made and to be performed entirely within the State of California.
17. MARKET STAND-OFF PROVISION. Holder hereby agrees
that, for a period of 180 days after the date of the final prospectus relating
to any registered underwritten public offering, it shall not, to the extent
requested by the Company and such underwriter, offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
actual disposition due to cash settlement or otherwise), directly or indirectly,
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder with respect to, any shares of
capital stock of the Company now owned or hereafter acquired by the Holder or
any securities convertible into, or exercisable for such capital stock.
To enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Company's securities held by
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
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18. ENTIRE AGREEMENT. This Warrant and the other documents
delivered pursuant hereto or referred to herein, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof.
19. SEVERABILITY. In case any provision of this Warrant shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
20. COUNTERPARTS. This Warrant may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
21. SURVIVAL. Except as expressly set forth herein, the
representations, warranties, covenants and agreements made herein shall
survive the closing of the transactions contemplated hereby.
22. CONFIDENTIALITY. Holder agrees that, except with
the prior written consent of the Company, Holder shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the Company to which Holder has been or shall
become privy. The provisions of this Section 22 shall be in addition to, and not
in substitution for, the provisions of any separate nondisclosure agreement
executed by the parties hereto.
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IN WITNESS WHEREOF, this Warrant is executed as of the _____ day of ___________,
1999.
COMPANY:
WIRELESS, INC.
By:
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Name:
----------------------------
Title:
----------------------------
HOLDER:
[ ]
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(Signature)
Name:
----------------------------
Title:
---------------------------
Address:
--------------------------------
--------------------------------
Facsimile Number:
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EXERCISE NOTICE
Wireless, Inc.
Attention: Chief Financial Officer
1. The undersigned hereby elects to purchase, pursuant to the
provisions of the Warrant to Purchase Shares of Common Stock issued by Wireless,
Inc. and held by the undersigned, the original of which is attached hereto,
_______________ shares of Common Stock of Wireless, Inc. Payment of the exercise
price per share required under such Warrant accompanies this Exercise Notice.
2. The undersigned hereby represents and warrants that the
undersigned is acquiring such shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such shares or any
part thereof.
HOLDER:
-------------------------------
Name:
Title:
Date:_________________, 200__
Address:
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Name in which shares should be registered:
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