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EXHIBIT 4.22
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST
RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS
INVOLVED.
Warrant to Purchase
900,000 shares
WARRANT TO PURCHASE COMMON STOCK
OF
PATRIOT SCIENTIFIC CORPORATION
THIS CERTIFIES that Xxxxxx Private Equity, LLC, or any subsequent holder
hereof pursuant to Section 8 hereof ("Holder" or "Investor") has the right to
purchase from Patriot Scientific Corporation, a Delaware corporation (the
"Company"), up to 900,000 fully paid and nonassessable shares of the Company's
common stock, $0.00001 par value per share ("Common Stock"), subject to
adjustment as provided herein, at a price equal to the Exercise Price as defined
in Section 3 below, at any time beginning on the Date of Issuance (defined
below) and ending at 5:00 p.m., New York, New York time, on the date that is
five (5) years after the Date of Issuance (the "Exercise Period").
Holder agrees with the Company that this Warrant to Purchase Common
Stock of the Company (this "Warrant") is issued and all rights hereunder shall
be held subject to all of the conditions, limitations and provisions set forth
herein.
1. Date of Issuance and Term.
This Warrant shall be deemed to be issued on September 17, 2001 ("Date
of Issuance"). The term of this Warrant is five (5) years from the Date of
Issuance. The Warrant may be exercised anytime after the Date of Issuance
through the date that is five (5) years after the Date of Issuance.
Notwithstanding anything to the contrary herein, the applicable portion
of this Warrant shall not be exercisable during any time that, and only to the
extent that, the number of shares of Common Stock to be
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issued to Holder upon such exercise, when added to the number of shares of
Common Stock, if any, that the Holder otherwise beneficially owns (outside of
this Warrant, and not including any other warrants having a provisions
substantially similar to this paragraph) at the time of such exercise, would
equal or exceed 4.99% of the number of shares of Common Stock then outstanding,
as determined in accordance with Section 13(d) of the Exchange Act (the "4.99%
Limitation"). The 4.99% Limitation shall be conclusively satisfied if the
applicable Exercise Notice includes a signed representation by the Holder that
the issuance of the shares in such Exercise Notice will not violate the 4.99%
Limitation, and the Company shall not be entitled to require additional
documentation of such satisfaction.
2. Exercise.
(a) Manner of Exercise. During the Exercise Period, this Warrant may be
exercised as to all or any lesser number of full shares of Common Stock covered
hereby (the "Warrant Shares") upon surrender of this Warrant, with the Exercise
Form attached hereto as Exhibit A (the "Exercise Form") duly completed and
executed, together with the full Exercise Price (as defined below) for each
share of Common Stock as to which this Warrant is exercised, at the office of
the Company, Attention: Xxxxxx X. Xxxxxxxx, CFO, 00000 Xxx Xxxxxxxx, Xxx Xxxxx,
XX 00000 Telephone: (000) 000-0000, Facsimile: (000) 000-0000, or at such other
office or agency as the Company may designate in writing, by overnight mail,
with an advance copy of the Exercise Form sent to the Company and its Transfer
Agent by facsimile (such surrender and payment of the Exercise Price hereinafter
called the "Exercise of this Warrant").
(b) Date of Exercise. The "Date of Exercise" of the Warrant shall be
defined as the date that the advance copy of the completed and executed Exercise
Form is sent by facsimile to the Company, provided that the original Warrant and
Exercise Form are received by the Company as soon as practicable thereafter.
Alternatively, the Date of Exercise shall be defined as the date the original
Exercise Form is received by the Company, if Holder has not sent advance notice
by facsimile.
(c) Delivery of Shares of Common Stock Upon Exercise. Upon any exercise
of this Warrant, the Company shall use its reasonable best efforts to deliver,
or shall cause its transfer agent to deliver, a stock certificate or
certificates representing the number of shares of Common Stock into which this
Warrant was exercised, within three (3) trading days (the "Share Delivery
Deadline") of the date that all of the following have been received by the
Company: (i) the original completed and executed Exercise Form, (ii) the
original Warrant and (iii) the Exercise Price (if applicable)(collectively, the
"Receipt Date"). Such stock certificates shall not contain a legend restricting
transfer if a registration statement covering the resale of such shares of
Common Stock is in effect at the time of such exercise or if such shares of
Common Stock may be resold pursuant to an exemption from registration, including
but not limited to Rule 144 under the Securities Act of 1933.
(d) Economic Loss Due to Late Delivery of Shares. If the Company fails
for any reason to deliver the requisite number of shares of Common Stock
(unlegended, if so required by the terms of this Warrant)(the "Warrant Shares")
to a Holder upon an exercise of this Warrant within fifteen (15) business days
of the Receipt Date (the "Late Delivery Deadline"), the Company shall pay such
Holder (in addition to any other remedies available to Holder) an amount equal
to ("Non-Delivery Payment"):
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(x) the highest closing price for the Company's Common
Stock for any trading day during the period beginning on and
including the Date of Exercise and ending on the earlier of (i)
the date that the Investor receives from the Company
certificates (unlegended, if so required by the terms of this
Warrant) representing the Warrant Shares of Common Stock
issuable in conjunction with such Exercise, or (ii) the date
that the Investor receives the full amount of the Non-Delivery
Payment, whichever is earlier,
minus
(y) the Exercise Price per share (which, in the case of
a Cashless Exercise, shall be deemed to equal zero), or, if the
Investor has received the Warrant Shares (unlegended, if so
required by the terms of this Warrant) from the Company prior to
the payment of the Non-Delivery Payment, the lowest closing
price of the Company's Common Stock for the five (5) trading
days immediately preceding the date that such Warrant Shares are
delivered to the Holder.
Non-Delivery Payments shall be payable, in cash, within five (5)
business days of the Late Delivery Deadline.
(e) Liquidated Damages. The parties hereto acknowledge and agree that
the sums payable as Non-Delivery Payments shall give rise to liquidated damages
and not penalties. The parties further acknowledge that (i) the amount of loss
or damages likely to be incurred by the Holder is incapable or is difficult to
precisely estimate, (ii) the amounts specified bear a reasonable proportion and
are not plainly or grossly disproportionate to the probable loss likely to be
incurred by the Investor, and (iii) the parties are sophisticated business
parties and have been represented by sophisticated and able legal and financial
counsel and negotiated this Agreement at arm's length.
(f) Cancellation of Warrant. This Warrant shall be canceled upon the
Exercise of this Warrant, and, as soon as practical after the Date of Exercise,
Holder shall be entitled to receive Common Stock for the number of shares
purchased upon such Exercise of this Warrant, and if this Warrant is not
exercised in full, Holder shall be entitled to receive a new Warrant (containing
terms identical to this Warrant) representing any unexercised portion of this
Warrant in addition to such Common Stock.
(g) Holder of Record. Each person in whose name any Warrant for shares
of Common Stock is issued shall, for all purposes, be deemed to be the Holder of
record of such shares on the Date of Exercise of this Warrant, irrespective of
the date of delivery of the Common Stock purchased upon the Exercise of this
Warrant. Nothing in this Warrant shall be construed as conferring upon Holder
any rights as a stockholder of the Company.
3. Payment of Warrant Exercise Price.
The Exercise Price per share ("Exercise Price") shall initially equal
$0.22 (the "Initial Exercise
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Price"). If the Date of Exercise is more than six (6) months after the Date of
Issuance, the Exercise Price shall be reset to equal the lesser of (i) the
Exercise Price then in effect, or (ii) the "Lowest Reset Price," as that term is
defined below. The Company shall calculate a "Reset Price" on each six-month
anniversary date of the Date of Issuance which shall equal the lowest Closing
Bid Price of the Company's Common Stock for the five (5) trading days ending on
such six-month anniversary date of the Date of Issuance. The "Lowest Reset
Price" shall equal the lowest Reset Price determined on any six-month
anniversary date of the Date of Issuance up through the applicable Date of
Exercise, taking into account, as appropriate, any adjustments made pursuant to
Section 5 hereof.
For purposes hereof, the term "Closing Bid Price" shall mean the closing
bid price on the Nasdaq Small Cap Market, the National Market System ("NMS"),
the New York Stock Exchange, or the O.T.C. Bulletin Board, or if no longer
traded on the Nasdaq Small Cap Market, the National Market System ("NMS"), the
New York Stock Exchange, or the O.T.C. Bulletin Board, the "Closing Bid Price"
shall equal the closing price on the principal national securities exchange or
the over-the-counter system on which the Common Stock is so traded and, if not
available, the mean of the high and low prices on the principal national
securities exchange on which the Common Stock is so traded.
Payment of the Exercise Price may be made by either of the following, or
a combination thereof, at the election of Holder:
(i) Cash Exercise: cash, bank or cashiers check or wire transfer; or
(ii) Cashless Exercise: The Holder, at its option, may exercise this
Warrant in a cashless exercise transaction. In order to effect a Cashless
Exercise, the Holder shall surrender this Warrant at the principal office of the
Company together with notice of cashless election, in which event the Company
shall issue Holder a number of shares of Common Stock computed using the
following formula:
X = Y (A-B)/A
where: X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock for which this Warrant is being
exercised.
A = the Market Price of one (1) share of Common Stock (for
purposes of this Section 3(ii), the "Market Price" shall be
defined as the average Closing Price of the Common Stock for the
five (5) trading days prior to the Date of Exercise of this
Warrant (the "Average Closing Price"), as reported by the O.T.C.
Bulletin Board, National Association of Securities Dealers
Automated Quotation System ("Nasdaq") Small Cap Market, or if
the Common Stock is not traded on the Nasdaq Small Cap Market,
the Average Closing Price in any other over-the-counter market;
provided, however, that if the Common Stock is listed on a stock
exchange, the Market Price shall be the Average Closing Price on
such exchange for the five (5) trading days prior to the date of
exercise of the Warrants. If the Common Stock is/was not traded
during the five (5) trading days prior to the Date of Exercise,
then the closing price for the
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last publicly traded day shall be deemed to be the closing price
for any and all (if applicable) days during such five (5)
trading day period.
B = the Exercise Price.
For purposes of Rule 144 and sub-section (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Common Stock issuable upon
exercise of this Warrant in a cashless exercise transaction shall be deemed to
have been acquired at the time this Warrant was issued. Moreover, it is
intended, understood and acknowledged that the holding period for the Common
Stock issuable upon exercise of this Warrant in a cashless exercise transaction
shall be deemed to have commenced on the date this Warrant was issued.
4. Transfer and Registration.
(a) Transfer Rights. Subject to the provisions of Section 8 of this
Warrant, this Warrant may be transferred on the books of the Company, in whole
or in part, in person or by attorney, upon surrender of this Warrant properly
completed and endorsed. This Warrant shall be canceled upon such surrender and,
as soon as practicable thereafter, the person to whom such transfer is made
shall be entitled to receive a new Warrant or Warrants as to the portion of this
Warrant transferred, and Holder shall be entitled to receive a new Warrant as to
the portion hereof retained.
(b) Registrable Securities. In addition to any other registration rights
of the Holder, if the Common Stock issuable upon exercise of this Warrant is not
registered for resale at the time the Company proposes to register (including
for this purpose a registration effected by the Company for stockholders other
than the Holders) any of its Common Stock under the Act (other than a
registration relating solely for the sale of securities to participants in a
Company stock plan or a registration on Form S-4 promulgated under the Act or
any successor or similar form registering stock issuable upon a
reclassification, upon a business combination involving an exchange of
securities or upon an exchange offer for securities of the issuer or another
entity)(a "Piggyback Registration Statement"), the Company shall cause to be
included in such Piggyback Registration Statement ("Piggyback Registration") all
of the Common Stock issuable upon the exercise of this Warrant ("Registrable
Securities") to the extent such inclusion does not violate the registration
rights of any other securityholder of the Company granted prior to the date
hereof. Nothing herein shall prevent the Company from withdrawing or abandoning
the Piggyback Registration Statement prior to its effectiveness.
(c) Limitation on Obligations to Register under a Piggyback
Registration. In the case of a Piggyback Registration pursuant to an
underwritten public offering by the Company, if the managing underwriter
determines and advises in writing that the inclusion in the registration
statement of all Registrable Securities proposed to be included would interfere
with the successful marketing of the securities proposed to be registered by the
Company, then the number of such Registrable Securities to be included in the
Piggyback Registration Statement, to the extent such Registrable Securities may
be included in such Piggyback Registration Statement, shall be allocated among
all Holders who had requested Piggyback Registration pursuant to the terms
hereof, in the proportion that the number of Registrable
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Securities which each such Holder seeks to register bears to the total number of
Registrable Securities sought to be included by all Holders. If required by the
managing underwriter of such an underwritten public offering, the Holders shall
enter into a reasonable agreement limiting the number of Registrable Securities
to be included in such Piggyback Registration Statement and the terms, if any,
regarding the future sale of such Registrable Securities.
5. Anti-Dilution Adjustments.
(a) [Intentionally Left Blank].
(b) Recapitalization or Reclassification.
(i) Stock Split. If the Company shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a larger number of shares (a "Stock Split"), then upon the
effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon Exercise of this Warrant shall be increased in
direct proportion to the increase in the number of shares of Common Stock by
reason of such recapitalization, reclassification or similar transaction, and
the Exercise Price shall be proportionally decreased.
(ii) Reverse Stock Split. If the Company shall at any time
effect a recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a smaller number of shares (a "Reverse Stock Split"), then upon
the effective date thereof, the number of shares of Common Stock which Holder
shall be entitled to purchase upon Exercise of this Warrant shall be
proportionately decreased and the Exercise Price shall be proportionally
increased. The Company shall give Holder the same notice it provides to holders
of Common Stock of any transaction described in this Section 5(b).
(c) [Intentionally Left Blank].
(d) Notice of Consolidation or Merger and Warrant Exchange. The Company
shall not, at any time after the date hereof, effect a merger, consolidation,
exchange of shares, recapitalization, reorganization, or other similar event, as
a result of which shares of Common Stock shall be changed into the same or a
different number of shares of the same or another class or classes of stock or
securities or other assets of the Company or another entity or there is a sale
of all or substantially all the Company's assets (a "Corporate Change"), unless
the resulting successor or acquiring entity (the "Resulting Entity") assumes by
written instrument the Company's obligations under this Warrant, including but
not limited to the Exercise Price reset provisions as provided herein during the
term of the resultant warrants, and agrees in such written instrument that this
Warrant shall be exerciseable into such class and type of securities or other
assets of the Resulting Entity as Holder would have received had Holder
exercised this Warrant immediately prior to such Corporate Change, and the
Exercise Price of this Warrant shall be proportionately increased (if this
Warrant shall be changed into or become exchangeable for a warrant to purchase a
smaller number of shares of Common Stock of the Resulting Entity) or shall be
proportionately decreased (if this Warrant
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shall be changed or become exchangeable for a warrant to purchase a larger
number of shares of Common Stock of the Resulting Entity); provided, however,
that Company may not affect any Corporate Change unless it first shall have
given thirty (30) days notice to Holder hereof of any Corporate Change.
(e) Exercise Price Adjusted. As used in this Warrant, the term "Exercise
Price" shall mean the purchase price per share specified in Section 3 of this
Warrant, until the occurrence of an event stated in subsection (b) or (d) of
this Section 5, and thereafter shall mean said price as adjusted from time to
time in accordance with the provisions of this Warrant. No such adjustment under
this Section 5 shall be made unless such adjustment would change the Exercise
Price at the time by $0.01 or more; provided, however, that all adjustments not
so made shall be deferred and made when the aggregate thereof would change the
Exercise Price at the time by $0.01 or more.
(f) Adjustments: Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 5,
Holder shall, upon Exercise of this Warrant, become entitled to receive shares
and/or other securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 5.
6. Fractional Interests.
No fractional shares or scrip representing fractional shares shall be
issuable upon the Exercise of this Warrant, but on Exercise of this Warrant,
Holder may purchase only a whole number of shares of Common Stock. If, on
Exercise of this Warrant, Holder would be entitled to a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of shares of Common Stock
issuable upon exercise shall be the next higher number of shares.
7. Reservation of Shares.
The Company shall at all times reserve for issuance such number of
authorized and unissued shares of Common Stock (or other securities substituted
therefor as herein above provided) as shall be sufficient for the Exercise of
this Warrant and payment of the Exercise Price. The Company covenants and agrees
that upon the Exercise of this Warrant, all shares of Common Stock issuable upon
such exercise shall be duly and validly issued, fully paid, nonassessable and
not subject to preemptive rights, rights of first refusal or similar rights of
any person or entity.
8. Restrictions on Transfer.
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(a) Registration or Exemption Required. This Warrant has been issued in
a transaction exempt from the registration requirements of the Act by virtue of
Regulation D and exempt from state registration under applicable state laws. The
Warrant and the Common Stock issuable upon the Exercise of this Warrant may not
be pledged, transferred, sold or assigned except pursuant to an effective
registration statement or unless the Company has received an opinion from the
Company's counsel to the effect that such registration is not required, or the
Holder has furnished to the Company an opinion of the Holder's counsel, which
counsel shall be reasonably satisfactory to the Company, to the effect that such
registration is not required; the transfer complies with any applicable state
securities laws; and, if no registration covering the resale of the Warrant
Shares is effective at the time the Warrant Shares are issued, the Holder
consents to a legend being placed on certificates for the Warrant Shares stating
that the securities have not been registered under the Securities Act and
referring to such restrictions on transferability and sale.
(b) Assignment. If Holder can provide the Company with reasonably
satisfactory evidence that the conditions of (a) above regarding registration or
exemption have been satisfied, Holder may sell, transfer, assign, pledge or
otherwise dispose of this Warrant, in whole or in part. Holder shall deliver a
written notice to Company, substantially in the form of the Assignment attached
hereto as Exhibit B, indicating the person or persons to whom the Warrant shall
be assigned and the respective number of warrants to be assigned to each
assignee. The Company shall effect the assignment within ten (10) days, and
shall deliver to the assignee(s) designated by Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of shares.
9. Benefits of this Warrant.
Nothing in this Warrant shall be construed to confer upon any person
other than the Company and Holder any legal or equitable right, remedy or claim
under this Warrant and this Warrant shall be for the sole and exclusive benefit
of the Company and Holder.
10. Applicable Law; Arbitration.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Georgia applicable to agreements made in and wholly to be
performed in that jurisdiction, except for matters arising under the Act or the
Securities Exchange Act of 1934, which matters shall be construed and
interpreted in accordance with such laws. Any controversy or claim arising out
of or related to this Warrant or the breach thereof, shall be settled by binding
arbitration in Atlanta, Georgia in accordance with the Expedited Procedures
(Rules 53-57) of the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). A proceeding shall be commenced upon written demand by
Company or any Investor to the other. The arbitrator(s) shall enter a judgment
by default against any party, which fails or refuses to appear in any properly
noticed arbitration proceeding. The proceeding shall be conducted by one (1)
arbitrator, unless the amount alleged to be in dispute exceeds two hundred fifty
thousand dollars ($250,000), in which case three (3) arbitrators shall preside.
The arbitrator(s) will be chosen by the parties from a list provided by the AAA,
and if they are unable to agree within ten (10) days, the AAA shall select the
arbitrator(s). The arbitrators must be experts in securities law and financial
transactions. The arbitrators shall assess costs and expenses of the
arbitration, including all attorneys' and experts' fees, as the arbitrators
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believe is appropriate in light of the merits of the parties' respective
positions in the issues in dispute. Each party submits irrevocably to the
jurisdiction of any state court sitting in Atlanta, Georgia or to the United
States District Court sitting in Georgia for purposes of enforcement of any
discovery order, judgment or award in connection with such arbitration. The
award of the arbitrator(s) shall be final and binding upon the parties and may
be enforced in any court having jurisdiction. The arbitration shall be held in
such place as set by the arbitrator(s) in accordance with Rule 55.
Although the parties, as expressed above, agree that all claims,
including claims that are equitable in nature, for example specific performance,
shall initially be prosecuted in the binding arbitration procedure outlined
above, if the arbitration panel dismisses or otherwise fails to entertain any or
all of the equitable claims asserted by reason of the fact that it lacks
jurisdiction, power and/or authority to consider such claims and/or direct the
remedy requested, then, in only that event, will the parties have the right to
initiate litigation respecting such equitable claims or remedies. The forum for
such equitable relief shall be in either a state or federal court sitting in
Atlanta, Georgia. Each party waives any right to a trial by jury, assuming such
right exists in an equitable proceeding, and irrevocably submits to the
jurisdiction of said Georgia court.
11. Loss of Warrant.
Upon receipt by the Company of evidence of the loss, theft, destruction
or mutilation of this Warrant, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Company, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
[INTENTIONALLY LEFT BLANK]
12. Notice or Demands.
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Notices or demands pursuant to this Warrant to be given or made by
Holder to or on the Company shall be sufficiently given or made if sent by
certified or registered mail, return receipt requested, postage prepaid, and
addressed, until another address is designated in writing by the Company, to the
address set forth in Section 2(a) above. Notices or demands pursuant to this
Warrant to be given or made by the Company to or on Holder shall be sufficiently
given or made if sent by certified or registered mail, return receipt requested,
postage prepaid, and addressed, to the address of Holder set forth in the
Company's records, until another address is designated in writing by Holder.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
17th day of September, 2001.
PATRIOT SCIENTIFIC CORPORATION
By: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx, Chief Financial Officer
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