Exhibit 4.5
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") OR ANY STATE SECURITIES
LAWS AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, BY THE HOLDER EXCEPT UPON
THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF ITS COUNSEL OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY
TO COUNSEL FOR THE COMPANY, IN EITHER CASE, TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND APPLICABLE STATE
SECURITIES LAWS.
Common Stock Purchase Warrant
to
Purchase _____ Shares
of
Common Stock
This Common Stock Purchase Warrant is issued to:
---------------
c/o Taglich Brothers, X'Xxxxxx, Xxxxxx & Company, Incorporated
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
by Tower Tech, Inc., an Oklahoma corporation (hereinafter called the "Company",
which term shall include its successors and assigns).
FOR VALUE RECEIVED and subject to the terms and conditions hereinafter
set out, the registered holder of this Warrant as set forth on the books and
records of the Company (the "Holder") is entitled upon surrender of this Warrant
to purchase from the Company _______________ (_____) fully paid and
nonassessable shares of Common Stock, $.001 par value (the "Common Stock"), at
the Exercise Price (as defined below) per share.
This Warrant shall expire at the close of business on July 28, 2002.
1. (a) The right to purchase shares of Common Stock represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (properly endorsed if required) at the principal office of the
Company at Rural Route 3, Post Office Box 1838, Chickasha, Oklahoma 73023 (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company), and upon payment to the Company, by cash or by certified check or bank
draft, of the Exercise Price for such shares. The Company agrees that the shares
of Common Stock so purchased shall be deemed to be issued to the Holder as the
record owner of such shares of Common Stock as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for such
shares of Common Stock as aforesaid. Certificates for the shares of Common Stock
so purchased (together with a cash adjustment in lieu of any fraction of a
share) shall be delivered to the Holder within a reasonable time, not exceeding
five (5) business days, after the rights represented by this Warrant shall have
been so exercised, and, unless this Warrant has expired, a new Warrant
representing the number of shares of Common Stock, if any, with respect to which
this Warrant shall not then have been exercised, in all other respects identical
with this Warrant, shall also be issued and delivered to the Holder within such
time, or, at the request of the Holder, appropriate notation may be made on this
Warrant and the same returned to the Holder.
(b) This Warrant may be exercised to acquire, from and after the
date hereof, the number of shares of Common Stock set forth on the first page
hereof; provided, however, the right hereunder to purchase such shares of Common
Stock shall expire at the close of business on July 28, 2002.
2. This Warrant is being issued by the Company to Taglich Brothers,
X'Xxxxxx, Xxxxxx & Company, Incorporated ("Taglich Brothers"), or its designees,
pursuant to a Placement Agreement between the Company and Taglich Brothers dated
April 11, 1997, as amended by First Amendment dated May 28, 1997, and Second
Amendment dated June 26, 1997, whereby the Company agreed to issue a five (5)
year warrant exercisable at the Exercise Price per share to Taglich Brothers, or
its designees, equal to ten (10%) percent of the total number of shares of
Common Stock issuable upon the conversion of the ten (10%) percent convertible
subordinated debentures due June 30, 2000 (the "Debenture") sold by Taglich
Brothers in a private placement pursuant to the Company's Confidential Private
Placement Memorandum dated May 28, 1997, as amended by Supplement dated June 12,
1997, Second Supplement dated June 20, 1997 and Third Supplement dated July 23,
1997 (the "Memorandum").
3. The Company covenants and agrees that all Common Stock upon issuance
against payment in full of the Exercise Price by the Holder pursuant to this
Warrant will be validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof; and, without
limiting the generality of the foregoing, the Company covenants and agrees that
it will take from time to time all such action as may be requisite to assure
that the par value per share of the Common Stock is at all times equal to or
less than the then effective Exercise Price. The Company further covenants and
agrees that during the period within which the rights represented by this
Warrant may be exercised, the Company will have at all times authorized, and
reserved for the purpose of issue or transfer upon exercise of the rights
evidenced by this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant, and will
procure at its sole expense upon each such reservation of shares the listing
thereof (subject to issuance or notice of issuance) on all stock exchanges on
which the Common Stock is then listed or inter-dealer trading systems on which
the Common Stock is then traded. The Company will take all such action as may be
necessary to assure that such shares of Common Stock may be so issued without
violation of any applicable law or regulation, or of any requirements of any
national securities exchange upon which the Common Stock may be listed or
inter-dealer trading system on which the Common Stock is then traded. The
Company will not take any action which would result in any adjustment in the
number of shares of Common Stock purchasable hereunder if the total number of
shares of Common Stock issuable pursuant to the terms of this Warrant after such
action upon full exercise of this Warrant and, together with all shares of
Common Stock then outstanding and all shares of Common Stock then issuable upon
exercise of all options and other rights to purchase shares of Common Stock then
outstanding, would exceed the total number of shares of Common Stock then
authorized by the Company's Certificate of Incorporation, as then amended.
4. The Initial Exercise Price is $8.75 per share of Common Stock
("Initial Exercise Price"). The Initial Exercise Price shall be adjusted as
provided for below in this Section 4 (the Initial Exercise Price, and the
Initial Exercise Price, as thereafter then adjusted, shall be referred to as the
"Exercise Price") and the Exercise Price from time to time shall be further
adjusted as provided for below in this Section 4. Upon each adjustment of the
Exercise Price, the Holder shall thereafter be entitled to receive upon exercise
of this Warrant, at the Exercise Price resulting from such adjustment, the
number of shares of Common Stock obtained by (i) multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common
Stock purchasable hereunder immediately prior to such adjustment, and (ii)
dividing the product thereof by the Exercise Price resulting from such
adjustment.
The Exercise Price shall be adjusted as follows:
(i) In the case of any amendment to the
Certificate of Incorporation of the Company to change
the designation of the Common Stock or the rights,
privileges, restrictions or conditions in respect to
the Common Stock or division of the Common Stock, this
Warrant shall be adjusted so as to provide that upon
exercise thereof, the Holder shall receive, in lieu of
each Common Stock theretofore issuable upon such
exercise, the kind and amount of shares, other
securities, money and property receivable upon such
designation, change or division by the Holder issuable
upon such exercise had the exercise occurred
immediately prior to such designation, change or
division. This Warrant shall be deemed thereafter to
provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments
provided for in this Section 4. The provisions of this
Subsection 4(i) shall apply in the same manner to
successive reclassifications, changes, consolidations
and mergers.
(ii) If the Company shall at any time subdivide
its outstanding shares of Common Stock into a greater
number of shares of Common Stock, or declare a dividend
or make any other distribution upon the Common Stock
payable in shares of Common Stock, the Exercise Price
in effect immediately prior to such subdivision or
dividend or other distribution shall be proportionately
reduced, and conversely, in case the outstanding shares
of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination shall be
proportionately increased.
Whenever the Exercise Price shall be adjusted pursuant to this
Section 4, the Company shall issue a certificate signed by its President or Vice
President and by its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary, setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board of
Directors of the Company made any determination hereunder), and the Exercise
Price after giving effect to such adjustment, and shall cause copies of such
certificates to be mailed (by first-class mail, postage prepaid) to the Holder
of this Warrant. The Company shall make such certificate and mail it to the
Holder promptly after each adjustment.
No fractional Common Stock shall be issued in connection with
any exercise of this Warrant, but in lieu of such fractional shares, the Company
shall make a cash payment therefor equal in amount to the product of the
applicable fraction multiplied by the Exercise Price then in effect.
5. In the event the Company grants rights to all shareholders to
purchase Common Stock, the Holder shall have the same rights as if this Warrant
had been exercised immediately prior to such grant.
6. The Holder shall, with respect to the shares of Common Stock issuable
upon the exercise of this Warrant, have the registration rights and "piggy back"
registration rights set forth in the Debenture Purchase Agreement dated as of
June 27, 1997 by and between the Company, Taglich Brothers and the individuals
and entities that purchased the Debentures pursuant to the Memorandum. Such
registration rights and "piggy back" registration rights are incorporated herein
by this reference as if such provisions had been set forth herein in full.
7. This Warrant need not be changed because of any change in the
Exercise Price or in the number of shares of Common Stock purchased hereunder.
8. The terms defined in this paragraph, whenever used in this Warrant,
shall, unless the context otherwise requires, have the respective meanings
hereinafter specified. The term "Common Stock shall mean and include the
Company's Common Stock, $.001 par value per share, authorized on the date of the
original issue of this Warrant and shall also include in case of any
reorganization, reclassification, consolidation, merger or sale of assets of the
character referred to in paragraph 4 hereof, the stock, securities or assets
provided for in such paragraph. The term "Company" shall also include any
successor corporation to Tower Tech, Inc. by merger, consolidation or otherwise.
The term "outstanding" when used with reference to Common Stock shall mean at
any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owned or held by or for the
account of the Company. The term "1933 Act" shall mean the Securities Act of
1933, or any similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission, or any other Federal agency then
administering such Securities Act, thereunder, all as the same shall be in
effect at the time.
9. This Warrant is exchangeable, upon the surrender hereby by the Holder
at the office or agency of the Company, for new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares of Common Stock as shall be designated by the Holder at
the time of such surrender. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant or any such new
Warrants and, in the case of any such loss, theft, or destruction, upon delivery
of a bond of indemnity, reasonably satisfactory to the Company, or, in the case
of any such mutilation, upon surrender or cancellation of this Warrant or such
new Warrants, the Company will issue to the Holder a new Warrant of like tenor,
in lieu of this Warrant or such new Warrants, representing the right to
subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder.
10. The Company agrees to use its best efforts to file timely all
reports required to be filed by it pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934, as amended, and to provide such information as
will permit the Holder to sell this Warrant or any shares of Common Stock
acquired upon exercise of this Warrant in accordance with Rule 144 under the
1933 Act.
11. The Company will at no time close its transfer books against the
transfer of this Warrant or of any shares of Common Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a stockholder of the Company. The rights and
obligations of the Company, of the Holder, and of any holder of shares of Common
Stock issuable hereunder, shall survive the exercise of this Warrant.
12. This Warrant sets forth the entire agreement of the Company and the
Holder of the Common Stock issuable upon the exercise of this Warrant with
respect to the rights of the Holder and the Common Stock issuable upon the
exercise of this Warrant, notwithstanding the knowledge of such Holder of any
other agreement or the provisions of any agreement, whether or not known to the
Holder and the Company represents that there are no agreements inconsistent with
the terms hereof or which purport in any way to bind the Holder of this Warrant
or the Common Stock.
13. The validity, interpretation and performance of this Warrant and
each of its terms and provisions shall be governed by the laws of the State of
New York.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal and to be dated , 1997
TOWER TECH, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
[CORPORATE SEAL]
