EXHIBIT 10.23
WORLDWIDE WIRELESS, INC.
Form of Warrants Outstanding (Form C)
Date (as of) No. of Shares
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8/29/96 10,000
EXHIBIT 10.23
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, MAY NOT BE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT, EXCEPT UNDER CIRCUMSTANCES WHERE NEITHER SUCH REGISTRATION NOR
SUCH AN EXEMPTION IS REQUIRED BY LAW, AND ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 3 OF THIS WARRANT.
WORLDWIDE WIRELESS, INC.
WARRANT
to Purchase 10,000 shares of Common Stock
Dated as of: August 29, 1996
Worldwide Wireless, Inc., a Delaware corporation with offices located
at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), for value
received, hereby certifies that _______________, or registered assigns, is
entitled to purchase from the Company, during the two-year period commencing
on the date hereof, 10,000 duly authorized, validly issued, fully paid and
nonassessable shares of common stock of the Company, par value $.01 per share
(the "Common Stock"), at a purchase price of $3.00 per share (the "Initial
Warrant Price"), subject to the terms, conditions and adjustments set forth
below in this Warrant.
Certain capitalized terms used in this Warrant are defined in Section
6.
1. Exercise of Warrant.
1.1 Manner of Exercise. This Warrant may be exercised by the holder
hereof, from time to time in whole or in part, during normal business hours on
any business day by surrender of this Warrant to the Company at the office of
the Company listed above, accompanied by a subscription in substantially the
form annexed hereto duly executed by such holder and by payment, in cash or
certified or official bank check payable to the order of the Company (or by
any combination such methods) in the amount obtained by multiplying (a) the
number of shares of Common Stock (without giving effect to any adjustment
therein) designated in such subscription by (b) the Warrant Price.
1.2 When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
business day on which this Warrant shall have been surrendered to the Company
as provided in Section 1.1; and at such time the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such exercise as provided in Section 1.3 shall be deemed to
have become the holder or holders of record thereof.
1.3 Delivery of Stock Certificates, etc. As soon as practicable after
the exercise of this Warrant, in whole or in part, and in any event within ten
business days thereafter, the Company at its expense (including the payment by
it of any applicable issuance taxes) will cause to be issued in the name of
and delivered to the holder hereof or, subject to Section 3, to such Person as
such holder (upon payment by such holder of any applicable transfer taxes) may
direct,
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(a) a certificate or certificates of the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock to which such holder shall be
entitled upon such exercise, as the case may be, plus, in
lieu of any fractional share to which such holder would
otherwise be entitled upon such exercise, cash in an amount
equal to the same fraction of the Market Price per share on
the business day next preceding the date of such exercise,
and
(b) in case such exercise is only in part, a new Warrant or
Warrants of like tenor, calling in the aggregate on the face
or faces thereof for issuance of the number of shares of
Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face
of this Warrant minus the number of such shares so
designated by such holder upon such exercise as provided in
Section 1.1.
2. No Dilution or Impairment. The Company will not, by amendment of
its certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issuance or sale of
securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in carrying out all of such terms and in taking of
all such reasonable action as may be necessary or appropriate in order to
protect the rights of the holder of a Warrant against dilution or other
impairment. Without limiting the generality of the foregoing, the Company (a)
will not permit the par value of any shares of stock receivable upon the
exercise of this Warrant to exceed the amount payable therefor upon such
exercise, (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of stock on the exercise of this Warrant from time to
time outstanding, (c) will not take any action which results in any adjustment
of the Warrant Price if the total number of shares of Common Stock issuable
after such action, would exceed the total number of shares of Common Stock
then authorized by the Company's certificate of incorporation and available
for the purpose of issuance upon such exercise, and (d) will not issue any
capital stock of any class which is preferred as to dividends or as to the
distribution of assets upon voluntary or involuntary dissolution, liquidation
or winding-up, unless the rights of the holders thereof shall be limited to a
fixed sum or percentage of par value in respect of participation in dividends
and in any such distribution of assets.
3. Restrictions on Transfer.
3.1 Restrictive Legends. Except as otherwise permitted by this
Section 3, this Warrant and each Warrant issued upon direct or indirect
transfer or in substitution for this Warrant pursuant to Section 6 shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM, UNDER SUCH ACT, EXCEPT UNDER
CIRCUMSTANCES WHERE NEITHER SUCH REGISTRATION NOR SUCH AN EXEMPTION
IS REQUIRED BY LAW; AND ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER
SET FORTH IN SECTION 3 OF THIS WARRANT."
Except as otherwise permitted by this Section 3, each certificate for Common
Stock issued upon the exercise of this Warrant, and each certificate issued
upon the direct or indirect transfer of any such Common Stock, shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT, EXCEPT UNDER CIRCUMSTANCES WHERE NEITHER
SUCH REGISTRATION NOR SUCH AN EXEMPTION IS REQUIRED BY LAW."
3.2 Notice of Proposed Transfer; Opinions of Counsel.
(a) Subject to the provisions of clause (b) of this Section 3.2,
prior to any transfer of any Restricted Securities (as
defined in Rule 144 of the Securities Act) which are not
registered under an effective registration statement under
the Securities Act) other than a transfer pursuant to Rule
144, Rule 144A or any comparable rule under such Act), the
holder thereof shall designate counsel for the holder in
connection with such disposition and such holder will be
entitled to transfer such Restricted Securities free of the
restrictions imposed by this Section 3 upon the issuance to
the Company of the opinion of such counsel, provided that
such opinion is acceptable to the Company and its counsel
and to the effect that the proposed distribution would not
be in violation of the Securities Act or any applicable
state securities or blue sky law. Each certificate and/or
Warrant, if any, issued upon or in connection with any such
transfer shall bear the applicable restrictive legend set
forth in Section 3.1 of this Section 3, unless in the
opinion of such counsel such legend is no longer required to
ensure compliance with the Securities Act or applicable
state securities or blue sky laws.
(b) The Purchaser (or its nominee) or any institutional investor
(or its nominee) which shall be the holder thereof shall be
permitted to transfer any Restricted Securities to one or
more institutional investor transferees, provided that (i)
each such transferee represents in writing that it is
acquiring such Restricted Securities for investment and not
with a view to the distribution thereof (subject, however,
to any requirement of law that the disposition thereof shall
at all times be within the control of such transferee) and
(ii) each such transferee agrees in writing to be bound by
all the restrictions on transfer of such Restricted
Securities contained in this Section 3.
3.3 Termination of Restrictions. The restrictions imposed by this
Section 3 upon the transferability of Restricted Securities shall ceased and
terminate as to any particular Restricted Securities (a) when such securities
shall have been effectively registered under the Securities Act and disposed
of in accordance with the registration statement covering such Restricted
Securities, or (b) when, in the opinions of both counsel for the holder
thereof and counsel for the Company, such restrictions are no longer required
in order to insure compliance with the Securities Act.
4. Reservation of Stock, etc. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of the
Warrants, the number of shares of Common Stock from time to time issuable upon
the exercise of all Warrants at the time outstanding. All such securities
shall be duly authorized and, when issued upon such exercise or purchase, as
the case may be, shall be validly issued and, in the case of shares, fully
paid and nonassessable with no liability on the part of the holders thereof.
5. Listing on Securities Exchange. At any time, if at all, after any
of the Common Stock is registered under the Exchange Act, the Company will, at
its expense, use reasonable efforts to obtain and
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maintain the approval for listing on a national securities exchange or NASDAQ
upon official notice of issuance of all shares of Common Stock receivable upon
the exercise of the Warrants at the time outstanding and to maintain the
listing of such shares after their issuance on any national securities
exchange or NASDAQ upon which other shares of Common Stock are traded or
quoted.
6. Ownership, Transfer and Substitution of Warrants.
6.1 Ownership of Warrants. The Company may treat the Person in whose
name any Warrant is registered on the register kept at the principal office of
the Company as the owner and holder thereof for all purposes, notwithstanding
any notice to the contrary, except that, if and when any Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer thereof as the owner of such Warrant for all purposes, notwithstanding
any notice to the contrary. Subject to Section 3, a Warrant, if properly
assigned, may be exercised by a new holder without first having a new Warrant
issued.
6.2 Officer; Transfer and Exchange of Warrants.
(a) The Company may designate from time to time by notice to the
registered holder of this warrant an office or agency of the
Company (which may be an agency maintained at a bank) in the
Borough of Manhattan in the State of New York where such
notices, presentations and demands in respect of this
Warrant may be made in lieu of the Company's office in New
York City.
(b) Upon the surrender of any Warrant, properly endorsed, for
registration of transfer or for exchange at the principal
office of the Company or any other office or agency of the
Company designated to Section 6.2(a), the Company will
(subject to compliance with Section 3, if applicable)
execute and deliver to or upon the order of the holder
thereof a new Warrant or Warrants of like tenor, in the name
of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, calling
in the aggregate on the face or faces thereof for the number
of shares of Common Stock called for on the face or faces of
the Warrant or Warrants so surrendered.
6.3 Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant (which, in the case of the Purchaser or any institutional holder
of a Warrant, may be a written statement as to such loss, theft, destruction
or mutilation) and, (a) in the case of any such loss, theft or destruction of
any Warrant held by (i) a Person other than the Purchaser or any institutional
investor, upon delivery of indemnity satisfactory to the Company in form and
amount and (ii) the Purchaser or any institutional investor, upon delivery of
such holder's unsecured written agreement to indemnify the Company or (b) in
the case of any such mutilation, upon surrender of such Warrant for
cancellation at the principal officer of the Company or any other office or
agency of the Company designated pursuant to Section 6.2(a), the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
7. Definitions. As used herein, unless the context otherwise requires
the following terms have the following respective meanings:
Commission: shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
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Exchange Act: shall mean the Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
Market Price: shall mean, per share of Common Stock, on any date
specified herein, (a) the last sale price on such date of such class of Common
Stock or, if no such sale takes place on such date, the average of the closing
bid and asked prices thereof on such date, in each case as officially reported
on the principal national securities exchange on which such class of the
Common Stock is then listed or admitted to trading, or (b) if the Common Stock
is not then listed or admitted to trading on any national securities exchange
but is designated as a national market system security by the NASD, the last
trading price of the Common Stock on such date, or (c) if there shall have
been no trading on such date or if such class of the Common Stock is not so
designated, the average of the reported closing bid and asked prices of the
Common Stock on such date as shown by NASDAQ and reported by any member firm
of the New York Stock Exchange selected by the Company, or (d) if neither
clause (a), (b) nor (c) of this definition is applicable, a price per share
thereof equal to the higher of (x) the book value thereof as of the last day
of any month ending within sixty days preceding the date as of which the
determination is to be made and (y) the fair value thereof as of the date
which is within fifteen days of the date as of which the determination is to
be made, in each case, as determined by the Board of Directors of the Company
on the basis of a written opinion furnished to such Board (with a copy to each
holder of a Warrant) of an investment banking firm selected by such Board and
acceptable to the holder of the Warrant.
NASD: shall mean the National Association of Securities Dealers.
NASDAQ: shall mean the National Association of Securities Dealers
Automated Quotation System.
Person: shall mean a corporation, an association, a partnership, an
organization or business, an individual, a government or political subdivision
thereof or a governmental agency.
8. Remedies. The company stipulated that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that, to the extent permitted by
applicable law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
9. No Rights or Liabilities as Stockholder. Nothing contained in this
Warrant shall be construed as conferring upon the holder hereof any rights as
a stockholder of the Company or as imposing any obligation on such holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are
asserted by the Company or by creditors of the Company.
10. Notices. All notices and other communications provided for herein
shall be delivered by first class mail, postage prepaid or by overnight
courier, addressed (a) if to any holder of any Warrant, at the registered
address of such holder as set forth in the register kept by the Company, or
(b) if to the Company, to the attention of its President at its office
referred to in the opening paragraph hereof or at the address of such other
office of the Company as the Company shall have furnished to each holder of
this Warrant in writing; provided, however, that the exercise of any Warrant
shall be effective in the manner provided in Section 1.
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11. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought. Any provision of this Warrant which shall be prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Company waives any provision of law which
shall render any provision hereof prohibited or unenforceable in any respect.
The headings of this Warrant are inserted for convenience only and shall not
be deemed to constitute a part hereof.
12. Governing Law. This Warrant shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
WORLDWIDE WIRELESS, INC.
By:
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