EXHIBIT 4(k)
UNDERWRITER'S WARRANT TO PURCHASE UNITS
Date of Issuance: , 200 Warrant to Purchase Units
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FOR VALUE RECEIVED, RELM Wireless Corporation, a Nevada corporation
(the "Corporation"), promises to issue in the name of, and sell and deliver to
Noble International Investments, Inc., or its permitted assigns (the "Holder"),
a certificate or certificates, for an aggregate of ________ units ("the
"Units"), where each Unit consists of one share (the "Unit Shares") of the
Corporation's common stock, par value $0.60 per share (the "Common Stock") and
one warrant to purchase one share of Common Stock at an exercise price of $_____
per share (the "Unit Warrants"), upon payment by the Holder of $_____ per Unit
(the "Exercise Price"), with the Exercise Price being subject to adjustment in
the circumstances and subject to the provisions set forth herein. This
Underwriter's Warrant (the "Underwriter's Warrant") is issued pursuant to that
Standby Underwriting Agreement between the Corporation and the Holder of even
date herewith. The Units, the Unit Shares, the Unit Warrants and the shares of
Common Stock issuable upon the exercise of the Unit Warrants shall be
collectively referred to as the "Registrable Securities."
SECTION 1.
Exercise of Units
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1.1 Exercise Period. The Holder may exercise this Underwriter's
Warrant, in whole or in part (but not as to fractional shares), at any time from
time to time beginning 12 months from the date hereof and ending at 5:00 p.m.,
Eastern Time, on the fifth anniversary of the date hereof (the "Exercise
Period"). If the last day of the Exercise Period is a day on which federal or
state chartered banking institutions located in the State of Florida are
authorized by law to close, then the last day of the Exercise Period shall be
deemed to be the next succeeding day which shall not be such a day.
1.2 Exercise Procedure.
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a. This Underwriter's Warrant may be exercised in whole or in
part at any time during the Exercise Period by presentation and surrender of
this Underwriter's Warrant to the Corporation accompanied by the form of
Exercise Agreement (attached hereto as Exhibit 1) signed by the Holder and
accompanied by the Exercise Price for the Units being purchased. The Exercise
Price may be paid by cashier's check, wire transfer of immediately available
funds or pursuant to the Cashless Exercise provisions set forth in Section 7.4
hereof. The date on which the Corporation receives a signed Exercise Agreement
and payment of the Exercise Price (by Cashless Exercise or otherwise) shall
hereinafter be referred to as the "Exercise Date."
b. Certificates for the Units purchased upon exercise of the
Underwriter's Warrant will be delivered by the Corporation to the Holder within
five (5) business days after the Exercise Date. Unless this Underwriter's
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Corporation will prepare a new Underwriter's Warrant representing
the rights formerly represented by this Underwriter's Warrant that have not
expired or been exercised. The Corporation will, within such five (5) day
period, deliver such new Underwriter's Warrant to the Holder at the address set
forth in this Underwriter's Warrant as such address may be changed in accordance
with Section 7.1 hereof.
c. The Units issuable upon the exercise of this Underwriter's
Warrant will be deemed to have been transferred to the Holder on the Exercise
Date, and the Holder will be deemed for all purposes to have become the record
holder of such Units on the Exercise Date.
d. The issuance of certificates representing the Units will be
made without charge to the Holder of any issuance tax in respect thereof or any
other cost incurred by the Corporation in connection with such exercise and
related transfer; provided, however, that the Corporation shall not be required
to pay any tax that may be payable in respect of any transfer involved in the
issuance and delivery of any certificate or instrument in a name other than that
of the Holder of this Underwriter's Warrant, and that the Corporation shall not
be required to issue or deliver any such certificate or instrument unless and
until the person or persons requiring the issue thereof shall have paid to the
Corporation the amount of such tax or shall have established to the satisfaction
of the Corporation that such tax has been paid.
e. Unless the Corporation shall have registered the
Registrable Securities pursuant to the provisions of Section 6 hereof, the Units
have not been registered for resale under the Securities Act of 1933, as amended
(the "Act") and, accordingly, will be "restricted securities" as that term is
defined in the Act. The Corporation may insert the following or similar legend
on the face of the certificates evidencing the Units if required in compliance
with applicable securities laws:
"These securities have not been registered under applicable
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and
any applicable state securities laws, or an opinion of counsel
satisfactory to counsel to the Corporation that an exemption
from registration under the Securities Act of 1933, as
amended, and any applicable state securities laws is
available."
1.3 Fractional Shares. If a fractional Unit would, but for the
provisions of Section 1.1, be issuable upon exercise of the rights represented
by this Underwriter's Warrant, the Corporation will, within 30 days after the
Exercise Date, deliver to the Holder a check payable to the Holder, in lieu of
such fractional Unit, in an amount equal to the market price of such fractional
share as determined by the last sale price of the Unit as reported on the market
or exchange on which the Units are then traded (or if the Units are not traded
on any market or exchange, based on the sum of the market price of the Unit
Shares and Unit Warrants), as of the close of business on the Exercise Date.
1.4 Nonredeemable Unit Warrants. This Underwriter's Warrant shall not
be redeemable by the Company.
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SECTION 2.
Effect of Stock Dividends, Reorganization, Reclassification,
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Consolidation, Merger or Sale
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2.1 Stock Dividends, Recapitalization or Reclassification of Units or
Common Stock. In case the Corporation shall at any time prior to the exercise or
termination of this Underwriter's Warrant (i) pay a dividend or make a
distribution of its capital stock in Units or shares of Common Stock to all
holders of Units or shares of Common Stock, or (ii) effect a recapitalization or
reclassification of such character that its Units or Common Stock shall be
changed into or become exchangeable for a larger or smaller number of Units or
shares of Common Stock, then, upon the effective date thereof, the number of
Units underlying this Underwriter's Agreement shall be increased or decreased,
as the case may be, in direct proportion to the increase or decrease in such
number of Units (or, if the change is in Common Stock, adjusted proportionately,
based initially on each Unit Share and Unit Warrant being counted as one share
of Common Stock) by reason of such stock dividend, recapitalization or
reclassification, and the Exercise Price shall, in the case of an increase in
the number of shares of Common Stock or Units, be proportionately decreased and,
in the case of a decrease, be proportionately increased.
2.2 Consolidation, Merger or Sale. In case the Corporation shall at any
time prior to the exercise of this Underwriter's Warrant, or the expiration of
the Exercise Period, whichever first occurs, consolidate or merge with any other
corporation (unless the Corporation shall be the surviving entity) or transfer
all or substantially all of its assets to any other corporation, then the
Corporation shall, as a condition precedent to such transaction, cause effective
provision to be made so that the Holder of this Underwriter's Warrant, upon the
exercise hereof after the effective date of such transaction, shall be entitled
to receive the kind and amount of securities, evidences of indebtedness, and/or
other property receivable on such transaction as if this Underwriter's Warrant
were exercised immediately prior to such transaction (without giving effect to
any restriction upon such exercise and based, initially, on each Unit Share and
Unit Warrant being counted as one share of Common Stock); and, in any such case,
appropriate provision shall be made with respect to the rights and interests of
the Holder hereof to the effect that the provisions of this Underwriter's
Warrant shall thereafter be applicable (as nearly as may be practicable) with
respect to any securities, evidences of indebtedness, or other assets thereafter
deliverable upon exercise of this Underwriter's Warrant.
2.3 Adjustment. If at any time after the date hereof the Corporation
shall issue or sell any Units, shares of Common Stock or any warrants, options
or rights to subscribe for or purchase Units or Common Stock (the "Purchase
Rights") or securities convertible into Units or Common Stock (the "Convertible
Securities"), and the consideration per share for, or the price per share at
which such Purchase Rights or Convertible Securities are exercisable for or
convertible into, Units (the "Subsequent Unit Price") or Common Stock (the
"Subsequent Stock Price") is less than the Exercise Price (in the case of Units)
or the exercise price of a Unit Warrant (in the case of Common Stock) in effect
immediately prior to such issuance or sale, then, forthwith upon such issuance
or sale, the Exercise Price shall be reduced to the Subsequent Unit Price with
respect to an issuance or sale of Units, Unit Purchase Rights or Unit
Convertible Securities, or reduced to the Subsequent Stock Price with respect to
an issuance or sale of Common Stock, Common Stock Purchase Rights or Common
Stock Convertible Securities. In the case of an adjustment pursuant to this
Section 2.3 for a subsequent issuance of Purchase Rights or Convertible
Securities, the Subsequent Stock Price or Subsequent Unit Price shall be deemed
to be the lowest possible price in any range or prices at which such Purchase
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Rights or Convertible Securities may be exercised or converted. No further
adjustments of the Exercise Price shall be made upon the actual issuance of such
Units or Common Stock upon conversion or exchange of such Purchase Rights or
Convertible Securities and, if any issue or sale of such Purchase Rights or
Convertible Securities is made upon exercise of any Unit or warrant or other
right to subscribe for or to purchase any such Purchase Rights or Convertible
Securities for which adjustments of the Exercise Price have been or are to be
made pursuant to other provisions of this Section 2.3, no further adjustments of
the Exercise Price have been or are to be made pursuant to other provisions of
this sale. For the purposes of this Section 2.3, the date as of which the
Exercise Price shall be computed shall be the earlier of (i) the date on which
the Corporation shall enter into a firm contract for the issuance of such
Purchase Rights or Convertible Securities and (ii) the date of actual issuance
of such Purchase Rights or Convertible Securities. Such adjustments shall be
made upon each issuance of Purchase Rights or Convertible Securities and shall
become effective immediately after such issuance.
2.4 Notice of Adjustment. Whenever the number of Units shall be
adjusted as provided herein, the Corporation shall file with its corporate
records a certificate of its Chief Financial Officer setting forth the
computation and the adjusted number of Units purchasable hereunder resulting
from such adjustments, and a copy of such certificate shall be mailed to the
Holder. Any such certificate or letter shall be conclusive evidence as to the
correctness of the adjustment or adjustments referred to therein and shall be
available for inspection by the Holder on any day during normal business hours.
SECTION 3.
Reservation of Common Stock
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The Corporation will at all time reserve and keep available such number
of shares of its Common Stock as will be sufficient to permit the exercise in
full of the Underwriter's Warrant, including the Unit Warrants. Upon exercise of
this Underwriter's Warrant pursuant to its terms, the Holder will acquire fully
paid and non-assessable Unit Shares and Unit Warrants, free and clear of any
liens, claims or encumbrances.
SECTION 4.
No Shareholder Rights or Obligations
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This Underwriter's Warrant will not entitle the Holder hereof to any
voting rights or other rights as a shareholder of the Corporation prior to the
Exercise Date. No provision of this Underwriter's Warrant, in the absence of
affirmative action by the Holder to purchase Units, and no enumeration in this
Underwriter's Warrant of the rights or privileges of the Holder, will give rise
to any obligation of such Holder for the Exercise Price or as a shareholder of
the Corporation.
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SECTION 5.
Transferability
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Subject to the terms hereof, this Underwriter's Warrant and all rights
hereunder are restricted from sale, transfer, assignment, or hypothecation for a
period of one year from the date hereof except to officers or partners of Noble
International Investments, Inc. and to selected dealers, if any, and their
officers or partners. After a period of 12 months from the date hereof, this
Underwriter's Warrant may be sold, transferred, assigned, or hypothecated to any
person, in whole or in part, upon surrender of this Underwriter's Warrant with a
properly executed Assignment in the form of Exhibit 2 hereto at the principal
offices of the Corporation. This Underwriter's Warrant may not be offered, sold
or transferred except in compliance with the Act, and any applicable state
securities laws, and then only against receipt of an agreement of the person to
whom such offer or sale or transfer is made to comply with the provisions of
this Underwriter's Warrant with respect to any resale or other disposition of
such securities; provided that no such agreement shall be required from any
person purchasing this Underwriter's Warrant pursuant to a registration
statement effective under the Act. The Holder of this Underwriter's Warrant
agrees that, prior to the disposition of any security purchased on the exercise
hereof other than pursuant to a registration statement then effective under the
Act, or any similar statute then in effect, the Holder shall give written notice
to the Corporation, expressing its intention as to such disposition. Upon
receiving such notice, the Corporation shall present a copy thereof to its
securities counsel. If, in the sole opinion of such counsel, which such opinion
shall not be unreasonably withheld, the proposed disposition does not require
registration of such security under the Act, or any similar statute then in
effect, the Corporation shall, as promptly as practicable, notify the Holder of
such opinion, whereupon the Holder shall be entitled to dispose of such security
in accordance with the terms of the notice delivered by the Holder to the
Corporation.
SECTION 6.
Registration Rights
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6.1 Demand Registration Rights. At any time during the Exercise Period,
if the Corporation shall receive from the Holder a written request that the
Corporation effect a registration with respect to all or a part of the
Registrable Securities, the Corporation will, one time only in the aggregate for
all Holders, as soon as practicable, (i) effect such registration, and (ii)
register or qualify the Registrable Securities for sale in up to ten (10) states
identified by the Holder.
The Corporation shall file a registration statement covering
the Registrable Securities so requested to be registered as soon as practicable
after receipt of the written request or requests of the Holder; provided,
however, that if in the good faith judgment of the Board of Directors of the
Corporation, such registration would be significantly detrimental to the
Corporation, and the Board of Directors concludes, as a result, that it is in
the best interests of the Corporation to defer the filing of such registration
statement at such time, and the Corporation shall furnish to such Holder a
certificate signed by the President of the Corporation stating that in the good
faith judgment of the Board of Directors of the Corporation, it would be
significantly detrimental to the Corporation for such registration statement to
be filed in the near future and that it is, therefore, in the best interests of
the Corporation to defer the filing of such registration statement, then the
Corporation shall have the right to defer such filing for the period during
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which such disclosure would be significantly detrimental, provided that the
Corporation may not defer the filing for a period of more than 90 days after
receipt of the request of the Holder, and, provided further, that the
Corporation shall not defer its obligation in this manner more than once in any
12-month period.
If the Corporation or other persons shall request inclusion in
any registration pursuant to this Section 6.1 of securities being sold for its
or their own accounts, the Holder shall agree to include such securities in the
registration unless such inclusion will result in the Holder being unable to
register all of its Registrable Securities, such as in the case of an
underwritten offering, in which case the Corporation and the other holders may
only include securities in the registration if all of the Registrable Securities
can still be included therein. If such registration relates to an underwritten
offering, the Corporation shall (together with all Holders and other persons
proposing to distribute their securities through such registration) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Holder.
6.2 Piggyback Registration Rights. In the event that the Corporation
proposes to file a registration statement on a general form of registration
under the Act (other than a form S-8 or S-4) relating to securities issued or to
be issued by it, then it shall give written notice of such proposal to the
Holder of this Underwriter's Warrant. If, within 15 days after the giving of
such notice, the Holder shall request in writing that the Registrable Securities
be included in such proposed registration, the Corporation shall, at its own
expense (except as set forth below), also register such number of Registrable
Securities as shall have been so requested in writing; provided, however, that
(i) the Holder shall cooperate with the Corporation in the preparation of such
registration statement to the extent required to furnish information concerning
such Holder therein; and (ii) if any underwriter or managing agent is purchasing
or arranging for the sale of the securities then being offered by the
Corporation under such registration statement, then the Holder (A) shall agree
to have the Registrable Securities being registered sold to or by such
underwriter or managing agent on terms substantially equivalent to the terms
upon which the Corporation is selling the securities so registered, or (B) shall
delay the sale of the Registrable Securities for the lesser of a 60-day period
commencing with the effective date of the registration statement or the date on
which the underwriter agrees to permit the sale of all or a portion of the
Registrable Securities being registered; provided further, if the number of
Registrable Securities as to which such Holder, and all other owners of
securities of the Corporation holding registration rights, has requested
registration is in the aggregate so large that such underwriter reasonably
believes in good faith that the inclusion of such Registrable Securities in the
registration statement may jeopardize the success of the offering, then such
underwriter may require that each such owner of securities (including the
Holder) reduce the number of such Registrable Securities to be registered, with
such reduction to be in proportion to the number of shares as to which each
respective owner (including the Holder) has requested registration which may be
the entire number of securities thereof. The Holder may give the notice
requiring the filing of a registration statement as set forth in this Section
6.2 on not more than two occasions (a "Registration Request") during the
Exercise Period; provided, however, that if an underwriter, pursuant to this
Section 6.2, reduces the number of Registrable Securities a Holder has requested
be included in a registration, such registration shall not be counted as a
Registration Request.
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6.3 Registration Procedures. In connection with the filing of a
registration statement pursuant to Section 6, the Corporation shall: (i) notify
the Holder as to the filing thereof and of all amendments thereto filed prior to
the effective date of said registration statement; (ii) notify the Holder,
promptly after it shall have received notice thereof, of the time when the
registration statement becomes effective or any supplement to any prospectus
forming a part of the registration statement has been filed; (iii) prepare and
file without expense to the Holder any necessary amendment or supplement to such
registration statement or prospectus as may be necessary to comply with Section
10(a)(3) of the Act or advisable in connection with the proposed distribution of
the Registrable Securities by the Holder; (iv) take all reasonable steps to
qualify the Registrable Securities being so registered for sale under the
securities or blue sky laws in such states (except as described in Section 6.1
herein) as the Holder of the Registrable Securities being so registered may
reasonably request; (v) notify such registered owners of any stop order
suspending the effectiveness of the registration statement and use its
reasonable best efforts to remove such stop order; and (vi) undertake to keep
said registration statement and prospectus effective until the earlier of (A)
two years from the effective date thereof (provided, that if the Holders are
required to delay the sale of the securities, then such period shall be extended
by the amount of such delay), or (B) the date the Registrable Securities are
sold or become available for public sale without restriction under the Act.
6.4 Fees and Expenses. The Holder agrees to pay all of the underwriting
discounts and commissions with respect to the Holder's Registrable Securities
being registered. The Corporation agrees to pay all other costs and expenses in
connection with a registration statement to be filed pursuant hereto including,
but not limited to, registration fees, the fees and expenses of counsel for the
Corporation, the fees and expenses of the Corporation's accountants and all
other costs and expenses incident to the preparation, printing and filing under
the Act of any such registration statement, each prospectus and all amendments
and supplements thereto, the costs incurred in connection with the qualification
of such securities for sale in a reasonable number of states (except as
described in Section 6.1, including fees and disbursements of counsel for the
Corporation, and the costs of supplying a reasonable number of copies of the
registration statement, each preliminary prospectus, final prospectus and any
supplements or amendments thereto to the Holder. The Holder shall be responsible
for its own attorneys fees in connection with a registration statement,
including amendments, under this sECTION 6.
SECTION 7.
Miscellaneous
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7.1 Notices. Any notices, requests or consents hereunder shall be
deemed given, and any instruments delivered, three days after they have been
mailed by first class mail, postage prepaid, or upon receipt if delivered
personally or by facsimile transmission, as follows:
If to the Corporation: RELM Wireless Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
If to the Holder: 0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
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except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph.
7.2 Entire Agreement. This Underwriter's Warrant, including the
exhibits and documents referred to herein which are a part hereof, contain the
entire understanding of the parties hereto with respect to the subject matter
and may be amended only by a written instrument executed by the parties hereto
or their successors or assigns. Any section headings contained in this
Underwriter's Warrant are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Underwriter's Warrant.
7.3 Construction and Enforcement. This Underwriter's Warrant shall be
governed by and construed under the laws of the State of Florida, without regard
to principles of conflicts of laws and rules of such state. If it becomes
necessary for any party to institute legal action to enforce the terms and
conditions of this Underwriter's Warrant, and such legal action results in a
final judgment in favor of such party (the "Prevailing Party"), then the party
or parties against whom said final judgment is obtained shall reimburse the
Prevailing Party for all direct, indirect or incidental expenses incurred,
including, but not limited to, all attorneys' fees, court costs and other
expenses incurred throughout all negotiations, trials or appeals undertaken in
order to enforce the Prevailing Party's rights hereunder. Any suit, action or
proceeding with respect to this Underwriter's Warrant shall be brought in the
state or Federal courts located in Palm Beach County in the State of Florida.
The parties hereto hereby accept the exclusive jurisdiction and venue of those
courts for the purpose of any such suit, action or proceeding. The parties
hereto hereby irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Underwriter's
Warrant or any judgment entered by any court in respect thereof brought in Palm
Beach County, Florida, and hereby further irrevocably waive any claim that any
suit, action or proceeding brought in Palm Beach County, Florida, has been
brought in an inconvenient forum.
7.4 Cashless Exercise Provision. Notwithstanding anything to the
contrary contained in this Underwriter's Warrant, this Underwriter's Warrant may
be exercised by presentation and surrender of this Underwriter's Warrant to the
Corporation at its principal executive offices with a written notice of the
Holder's intention to effect a cashless exercise, including a calculation of the
number of Units to be issued upon such exercise in accordance with the terms
hereof (a "Cashless Exercise"). In the event of a Cashless Exercise, and in lieu
of paying the Exercise Price in cash, check or other immediately available
funds, the Holder shall surrender this Unit for that number of Units determined
by multiplying the number of total Units represented by this Underwriter's
Warrant by the closing price for the Units (or the sum of the closing price for
the Unit Shares and Unit Warrants if there is no market for the Units) on the
principal market for such Units on the date preceding the Exercise Date minus
the exercise price in effect at such time, divided by such closing price of the
Units.
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IN WITNESS WHEREOF, this Underwriter's Warrant has been duly executed
as of the day and year first above written.
RELM Wireless Corporation
By:
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Name:
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Title:
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EXHIBIT 1
EXERCISE AGREEMENT
To: Dated:
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The undersigned Holder, pursuant to the provisions set forth in the
within Underwriter's Warrant, hereby irrevocably elects to exercise such
Underwriter's Warrant and purchase _______ Units of RELM Wireless Corporation
and hereby (i) makes full cash payment of $___________ for such Units at the
Exercise Price or (ii) exercises this Underwriter's Warrant pursuant to the
Cashless Exercise provisions thereof.
(Signature)
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(Print or type name of Holder)
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(Title, if applicable)
(Address)
If the record holder is electing a Cashless Exercise, the number of
Units of RELM Wireless Corporation to be issued is ______________ (see following
calculation).
Calculation of Cashless Exercise for the Units
X = Y(A-B)
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A
X = the number of Units to be issued to Holder
Y = the number of Units being exercised by Holder_________________
A = the closing price of a Unit (or the sum of the closing
prices of a Unit Share and Unit Warrant if there is no
closing price for a Unit) on the date preceding exercise on
the principal market for such Units (or other securities, as
the case may be)
B = the Exercise Price.
NOTICE: The signature on this Exercise Agreement must correspond with
the name as written upon the face of the within Underwriter's Warrant, or upon
the Assignment thereof, if applicable, in every particular, without alteration,
enlargement or any change whatsoever.
EXHIBIT 2
ASSIGNMENT
FOR VALUE RECEIVED, ___________________________, the undersigned Holder
hereby sells, assigns, and transfers all of the rights of the undersigned under
the within Underwriter's Warrant with respect to the Units set forth below, unto
the Assignee identified below, and does hereby irrevocably constitute and
appoint _____________________ to effect such transfer of rights on the books of
the Corporation, with full power of substitution:
Name of Assignee Address of Assignee Number of Units
---------------- ------------------- ---------------
Dated:
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(Signature of Holder)
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(Print or type name)
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(Print or type title, if applicable)
NOTICE: The signature on this Assignment must correspond with the name
of the Holder as written upon the face of the within Underwriter's Warrant, or
upon the Assignment thereof, if applicable, in every particular, without
alteration, enlargement or any change whatsoever.
CONSENT OF ASSIGNEE
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I HEREBY CONSENT to abide by the terms and conditions of the within
Underwriter's Warrant.
Dated:
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(Signature of Assignee)
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(Print or type name)
-------------------------------------
(Print or type title, if applicable)
