EXHIBIT 10.26
Warrantholder:
Prior Warrant dated:
Prior Warrant Shares:
Prior Warrant Exercise Price:
Aggregate Exercise Price:
New Warrant Shares:
THIS AGREEMENT entered into as of April __, 2004 between UNITY WIRELESS
CORPORATION (the "Company") and the Warrantholder, being the holder of the Prior
Warrant (the "Prior Warrant") to purchase the Prior Warrant Shares.
1. Warrantholder hereby exercises the Prior Warrant Shares in full and
is concurrently herewith wiring the Aggregate Exercise Price
therefor to the Company.
2. The Company will issue and deliver to Warrantholder a new warrant
(the "New Warrant"), in the form of an exhibit to this Agreement, to
purchase New Warrant Shares at US$0.50 per share in accordance with
the terms of the New Warrant.
3. The Company will at its expense file a registration statement on or
before April 15, 2004 for the sale by Warrantholder of the Prior
Warrant Shares and the New Warrant Shares, and will use its best
efforts to cause the registration statement to become effective as
soon as possible. Should the registration statement not be effective
within 90 days of the filing of the registration statement or if the
Company fails to file the registration statement by the deadline, a
penalty will apply. The penalty is comprised of a $0.01 reduction in
the exercise price of the New Warrant Shares for every 60 day period
the Company is in default to a maximum penalty of $0.05.
4. Representations.
a) Warrantholder represents and warrants that it is exercising
the Prior Warrant and acquiring the New Warrant solely for
investment, solely as principal for its own account and not
with a view to or for the resale or distribution thereof
except as permitted under applicable securities laws.
b) Warrantholder understands that it may sell or otherwise
transfer the Prior Warrant Shares and the New Warrant and the
New Warrant Shares issuable on exercise of the New Warrants
(collectively, the "Securities") only if such transaction is
duly registered under the Securities Act of 1933, as amended
(the, "Act"), or if the Warrantholder shall have received the
favorable opinion of its counsel, which opinion should be
reasonably satisfactory to the Company, to the effect that
such sale or other transfer may be made in the absence of
registration under the Act. The certificates representing the
aforesaid securities will be endorsed with a restrictive
legend, and stop transfer instructions will apply.
Warrantholder realizes that the Securities are not a liquid
investment.
c) Warrantholder certifies that he or she has an individual net
worth, or combined with his or her spouse has a combined net
worth, in excess of US$1,000,000. "Net Worth" means the excess
of total assets at fair market value, including home, home
furnishings and automobiles, over total liabilities. For this
purpose, Warrantholder's principal residence shall be valued
either at cost or at value as in a written appraisal by an
institutional lender of a mortgage on the residence, in each
case net or mortgages and other encumbrances.
d) Warrantholder acknowledges that the Company has advised
Warrantholder to access the Company's SEC filings on the SEC
Xxxxx database or otherwise, and to carefully review these
filings (which among other things list numerous risk factors)
with Warrantholder's personal attorneys, accountants and other
advisers. Warrantholder also understands that no independent
counsel has been retained to represent Warrantholder. In
making this investment, Warrantholder has relied solely upon
its review of the Company's SEC filings, this Agreement and
any investigation or review by Warrantholder's personal
representatives Warrantholder has not relied on any
representation or warranty by the Company, or any of its
officers, directors or employees.
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e) Warrantholder represents and warrants that Warrantholder has not
relied upon the advice of a "Purchaser Representative" (as defined
in Regulation D of the Act) in evaluating the risks and merits of
this investment. Warrantholder has the knowledge and experience to
evaluate the Company and the risks and merits relating thereto.
f) Warrantholder represents and warrants that Warrantholder (i) is an
"accredited investor" as such term is defined in Rule 501 of
Regulation D promulgated pursuant to the Act, and shall be such on
the date any securities are issued to Warrantholder; (ii) is able to
bear the economic risk of losing its entire investment in the
Securities and understands that an investment in the Company is
speculative and involves substantial risks; (iii) has the power and
authority to enter into this Agreement, and the execution and
delivery of, and performance under this Agreement shall not conflict
with any rule, regulation, judgment or agreement applicable to the
Warrantholder; (iv) has had the opportunity to ask questions and
receive answers from officers of the Company regarding any and all
matters relating to the Units and the Company; (v) has invested in
previous transactions involving restricted securities; and (vi) was
not formed expressly for the purpose of making an investment in the
Company.
g) This Agreement may not be changed or terminated orally. It shall be
governed and construed in accordance with the laws of the State of
Delaware applicable to agreements made and to be performed entirely
within such state. All disputes hereunder shall be resolved
exclusively by arbitration in Newark, New Jersey by the American
Arbitration Association, except that any court having jurisdiction
may award injunctive and ancillary relief.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
and delivered as of the date first written above.
UNITY WIRELESS CORPORATION
Per:
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Authorized Signatory
Warrantholder:
Name (print):
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Signature
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THIS WARRANT AND THE COMMON STOCK TO BE ISSUED UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS THE ISSUER SHALL HAVE RECEIVED AN OPINION OF
COUNSEL TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION THEREOF IS LEGALLY
REQUIRED FOR SUCH TRANSFER OR SUCH TRANSFER IS COVERED BY AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFIED UNDER APPLICABLE
STATE SECURITIES LAWS.
No.
No. of Shares :
Holder:
Date: April __, 0000
XXXXXXX
To subscribe for and purchase shares of Common Stock, par value $0.001 (the
"Common Stock"), of
UNITY WIRELESS CORPORATION.
THIS CERTIFIES that, for value received, Holder or its registered successors and
assigns, is entitled to purchase from UNITY WIRELESS CORPORATION, a Delaware
corporation (herein called the "Company"), the number of shares of Common Stock
of the Company (individually a "Common Share" or a "share of Common Stock", and
collectively the "Common Shares" or "shares of Common Stock") set forth above at
the initial exercise price of $0.50 (in US funds) per share of Common Stock (the
"Exercise Price"). This Warrant shall expire on March 31, 2006, or, if earlier,
at the close of business on the 10th calendar day after the Company shall have
given to Holder an "Early Expiration Notice" that refers to this paragraph. The
Company may give to Holder an Early Expiration Notice on any date (i) on which a
registration statement is effective for the shares issuable hereunder and (ii)
which is not more than 15 days after the 20th consecutive trading day on which
the closing sales price per share of Common Stock was not less than US$1.00. The
number of shares of Common Stock to be received upon the exercise of this
Warrant and the Exercise Price to be paid for a share of Common Stock are
subject to adjustment from time to time as hereinafter set forth.
This Warrant is being issued under an agreement of even date herewith between
the Company and Holder (the "Agreement"), and the Holder is entitled to all
benefits thereunder.
1. Exercise of Warrants
(a) This Warrant may be from time to time exercised by the Holder, in whole or
in part, by the surrender of this Warrant, duly endorsed, at the principal
office of the Company and upon payment to the Company of the purchase
price of the Common Shares purchased. Payment of the purchase price shall
be made by certified or official bank check or checks payable to the order
of the Company. The certificate(s) for such Common Shares shall be
delivered to the Holder within a reasonable time, not exceeding five days,
after the Warrants evidenced hereby shall have been so exercised and a new
Warrant evidencing the number of Common Shares remaining to be issued upon
exercise of the Warrants shall also be issued to the registered holder
within such time unless such Warrants shall have expired.
2. Anti-Dilution Provisions.
(a) General. The Exercise Price per share shall be subject to adjustment from
time to time as hereafter provided. Upon each adjustment of the Exercise
Price, the Holder shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares
obtained by multiplying the number of shares immediately theretofore
subject to this Warrant by the Exercise Price in effect immediately prior
to such adjustment, and dividing such amount by the Exercise Price
resulting from such adjustment.
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(b) Stock Splits and Reverse Splits. In the event the Company subdivides its
outstanding shares of Common Stock into a greater number of shares, the
Exercise Price in effect immediately prior to the subdivision shall be
proportionately reduced, and conversely, in the event the outstanding
shares of Common Stock of the Company are combined into a smaller number
of shares, the Exercise Price in effect immediately prior to the
combination shall be proportionately increased.
(c) Reorganizations and Asset Sales. Upon any consolidation or merger of the
Company with another corporation, or the sale of all or substantially all
of its assets to another corporation (each, a "Combination"), the Company
shall enter into an agreement with the surviving or acquiring Person (the
"Successor Company") in such Combination confirming the Holder's rights
pursuant to this Warrant and providing for the continuation after such
Combination of the adjustments provided for in this Warrant, to the end
that the Warrant shall effectively be converted into a Warrant of the
acquirer on terms set forth herein. Following a Combination, the Warrant
shall be exercisable for such number of shares of stock or other
securities or property (including cash) to which the Common Stock issuable
upon exercise of the Warrant (at the time of such Combination) would have
been exchanged for pursuant to such Combination had such Common Stock been
outstanding. For example, if the Company is acquired in a transaction in
which each share of Common Stock is converted into the right to receive
two shares of the acquirer's stock and this Warrant, after giving effect
to any other adjustment hereunder (including, without limitation, any
adjustment under other provisions of this Section 2, whether in respect of
such Combination or otherwise), is then exercisable for 1,000 shares of
Common Stock, the Company would enter into an agreement with the acquirer
providing that the Warrant would be exercisable for 2,000 shares of the
acquirer's stock and which would include the adjustment provisions
provided in this Agreement, effectively converting the Warrant into
warrants of the acquirer. The provisions of this Section shall similarly
apply to successive Combinations involving any Successor Company.
3. Dividends and Distributions. If, after the date hereof and prior to the
exercise of this Warrants, the Company shall pay any dividends or make any
other distributions to the holders of its Common Stock, upon the exercise
of this Warrant the Company shall pay to the Holder the amount of such
dividend or distribution which the Company would have paid to Holder had
Holder exercised this Warrant in full immediately prior to the record date
for such dividend or distribution.
4. Notices. If at any time prior to the expiration of the Warrants:
(a) The Company shall declare any dividend or distribution on the Common
Stock payable in shares of capital stock of the Company, cash or
other property; or
(b) The Company shall authorize the issue of any options, warrants or
rights pro rata to all holders of Common Stock entitling them to
subscribe for or purchase any shares of stock of the Company or to
receive any other rights; or
(c) The Company shall authorize the distribution pro rata to all holders
of Common Stock of evidences of its indebtedness or assets
(excluding cash dividends or cash distributions paid out of retained
earnings or retained surplus); or
(d) There shall occur any reclassification of the Common Stock, or any
consolidation or merger of the Company with or into another
corporation or other entity (other than a consolidation or merger in
which the Company is the continuing corporation and which does not
result in any reclassification of the Common Stock) or a sale or
transfer to another corporation or other entity of all or
substantially all of the properties of the Company; or
(e) There shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company; then, and
in each of such cases, the Company shall deliver to the registered
holder hereof at its last address appearing on the books of the
Company, as promptly as practicable but in any event at least 60
days prior to the applicable record date (or determination date)
mentioned below, a notice stating, to the extent such information is
available, (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights, or, if a record is
not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution or
winding up is expected to become effective and the date as of which
it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding up.
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5. Valid Issuance, Etc. The Company covenants and agrees that all shares of
Common Stock of the Company which may be issued upon the exercise of this
Warrant will be duly authorized, validly issued and fully paid and
nonassessable and free from all taxes, liens and charges with respect to
the issue thereof to the Holder. The Company further covenants and agrees
that during the period within which this Warrant may be exercised, the
Company will at all times reserve such number of shares of its capital
stock as may be sufficient to permit the exercise in full of this Warrant.
6. Registered Holder. Except as otherwise set forth herein, the Holder shall
not be entitled by virtue of ownership of this Warrant to any rights
whatsoever as a shareholder of the Company.
7. Transfer. This Warrant may not be sold, pledged, hypothecated or
transferred at any time unless the Company shall have received an opinion
of counsel to the effect that such transfer would not result in a
violation of the provisions of the Securities Act or applicable Canadian
securities laws. Any transfer of this Warrant to a transferee, in whole or
in part, shall be effected upon surrender of this Warrant, duly endorsed
(unless endorsement is waived by the Company), at the principal office or
agency of the Company. If this Warrant is being sold, pledged,
hypothecated or otherwise transferred, the Company shall issue a new
Warrant registered in the name of the appropriate transferee(s). If the
right to acquire less than all of the Common Stock issuable upon exercise
hereof is being sold, pledged, hypothecated or otherwise transferred, the
Company shall issue a new Warrant, in each case for the appropriate number
of shares of Common Stock, registered in the name of the Holder and the
transferee(s), as applicable. Common Stock of the Company issued upon any
exercise hereof may not be sold, pledged, hypothecated or otherwise
transferred at any time unless the Company shall have received an opinion
of counsel to the effect that such transfer would not result in a
violation of the Securities Act or applicable Canadian securities laws.
8. Confirmatory Notices; Restatements. The Company will promptly upon
Holder's request from time to time confirm to Holder in writing the number
of shares of Common Stock then purchasable by Holder upon exercise of this
Warrant and the Exercise Price then in effect. In addition, the Company
will on Holder's request and against delivery of this Warrant from time to
time issue to Holder an amended and restated Warrant to reflect any
adjustments theretofore made in the number of shares then subject hereto
and in the Exercise Price.
9. Miscellaneous.
(a) All notices, demands and other communications required or permitted
to be given hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, by telegram, by facsimile, recognized overnight mail
carrier, telex or other standard form of telecommunications, or by
registered or certified mail, postage prepaid, return receipt
requested, addressed as follows: (a) if to the Holder, to the
address set out in the Agreement or such other address as such
Holder shall furnish to the Company in accordance with this Section,
or (b) if to the Company, to it at its headquarters office, or to
such other address as the Company shall furnish to the Holder in
accordance with this Section.
(b) This Warrant shall be governed and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to
be performed entirely within such state. All disputes hereunder
shall be resolved exclusively by arbitration in Newark, New Jersey
by the American Arbitration Association, except that any court
having jurisdiction may award injunctive and ancillary relief. In
addition to all other remedies to which the Holder may be entitled
hereunder, Holder shall also be entitled to decrees of specific
performance without posting bond or other security.
(c) The waiver of any event of default or the failure of the Holder to
exercise any right or remedy to which it may be entitled shall not
be deemed a waiver of any subsequent event of default or of the
Holder's right to exercise that or any other right or remedy to
which the Holder is entitled.
(d) The Holder shall be entitled to recover its reasonable legal and
actual costs of enforce its rights hereunder.
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IN WITNESS WHEREOF, UNITY WIRELESS CORPORATION. has caused this Warrant to
be signed by a duly authorized officer and this Warrant is dated as of the date
set forth above.
UNITY WIRELESS CORPORATION.
By:
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Name: Xxxx Xxxxx
Title: President
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FORM OF EXERCISE
(to be executed by the Holder)
The undersigned hereby exercises this Warrant for the purchase of _______
shares of common stock, par value $0.001 ("Common Stock"), of UNITY WIRELESS
CORPORATION and herewith makes payment of the purchase price in full. Kindly
issue certificates for the Common Stock in accordance with the instructions
given below. The certificate for the unexercised balance of this Warrant, if
any, will be registered in the name of the undersigned.
Dated: ___________________
Instructions for registration of shares:
Name (please print)
Social Security or Other Identifying
Number:
Address:
Street
City, State and Zip Code
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