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Exhibit 4.5
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STOCK PURCHASE WARRANT
To Purchase Common Stock of
TELECHIPS CORPORATION
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Exhibit 4.5
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT OF 1933 OR
AN OPTION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
NO. 1
Void after 5:00 P.M. New York Time, on September 16, 1999
Warrant to Purchase ______ Shares of Common Stock.
REDEEMABLE WARRANT TO PURCHASE COMMON STOCK
OF
TELECHIPS CORPORATION
FOR VALUE RECEIVED, _____________________ ("Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from TELECHIPS
CORPORATION, a Nevada corporation (the "Company"), ______________ (______)
fully paid, validly issued, nonassessable shares of the Company's Series A
Common Stock, par value $0.01 per share (the "Common Stock"), at a price of
$1.00 per share at any time or from time to time during the period from
September 16, 1994 until 5:00 P.M., New York City Time on September 16, 1999,
subject to the Company's right to redeem this Warrant pursuant to Section (k)
hereof. The number of shares of Common Stock to be received upon the exercise
of this Warrant and the price to be paid for each share of Common Stock may be
adjusted from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price". This Warrant is
being issued in connection and
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simultaneously with the issuance on the date hereof to the Holder of a
promissory note in the amount of One Hundred Thousand Dollars ($100,000.00).
(a) EXERCISE OF WARRANT.
This Warrant may be exercised in whole or in part at any time or from
time to time on or after September 16, 1994 and until September 16, 1999,
subject to the Company's right to redeem this Warrant pursuant to Section (k)
hereof (the "Exercise Period"), provided, however, that (i) if either such day
is a day on which banking institutions in the State of New York are authorized
by law to close, then on the next succeeding day which shall not be such a day,
and (ii) in the event of any merger, consolidation or sale of substantially all
the assets of the Company as an entirety, resulting in any distribution to the
Company's stockholders, prior to September 16, 1999, the Holder shall have the
right to exercise this Warrant commencing at such time through September 16,
1999 into the kind and amount of shares of stock and other securities and
property (including cash) receivable by a holder of the number of shares of
Common Stock into which this Warrant might have been exercisable immediately
prior thereto. This Warrant may be exercised by presentation and surrender
hereof to the Company at its principal office, or at the office of its stock
transfer agent, if any, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price for the number of Warrant Shares
specified in such form. As soon as practicable after each such exercise of the
warrants, but not later than seven (7) days from the date of such exercise, the
Company shall issue and deliver to the Holder a certificate or certificate for
the Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the rights of the Holder thereof to purchase
the balance of the Warrant Shares purchasable thereunder. Upon receipt by the
Company of this Warrant at its office, or by the stock transfer agent of the
Company at its office, in proper form for exercise, the Holder shall be deemed
to be the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common Stock
shall not then be physically delivered to the Holder.
(b) RESERVATION OF SHARES. The Company shall at all
times reserve for issuance and/or delivery upon exercise of this Warrant such
number of shares of its Common Stock as shall be required for issuance and
delivery upon exercise of the Warrants.
(c) FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of a share, determined as
follows:
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(1) If the Common Stock is listed on a National
Securities Exchange or admitted to unlisted trading privileges
on such exchange or listed for trading on the NASDAQ system,
the current market value shall be the last reported sale price
of the Common Stock on such exchange or system on the last
business day prior to the date of exercise of this Warrant or
if no such sale is made on such day, the average closing bid
and asked prices for such day on such exchange or system; or
(2) If the Common Stock is not so listed or
admitted to unlisted trading privileges, the current market
value shall be the mean of the last reported bid and asked
prices reported by the National Quotation Bureau, Inc. on the
last business day prior to the date of the exercise of this
Warrant; or
(3) If the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked
prices are not so reported, the current market value shall be
an amount, not less than book value thereof as at the end of
the most recent fiscal year of the Company ending prior to the
date of the exercise of the Warrant, determined in such
reasonable manner as may be prescribed by the Board of
Directors of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT.
This Warrant is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the office of its
stock transfer agent, if any, for other warrants of different denominations
entitling the holder thereof to purchase in the aggregate the same number of
shares of Common Stock purchasable hereunder. This Warrant is not transferable
without the consent of the Company in its sole discretion (other than by will
or pursuant to the laws of descent and distribution), and may not be assigned
or hypothecated, by the Holder. The term "Warrant" as used herein includes any
Warrants into which this Warrant may be divided or exchanged. Upon receipt by
the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be
at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by
virtue hereof, be entitled to any rights of a shareholder in the Company,
either at law or equity, and the rights of the Holder are limited to those
expressed in the Warrant and are not enforceable against the Company except to
the extent set forth herein.
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(f) ANTI-DILUTION PROVISIONS. The Exercise Price in
effect at any time and the number and kind of securities purchasable upon the
exercise of the Warrants shall be subject to adjustment from time to time upon
the happening of certain events as follows:
(1) In case the Company shall (i) declare a
dividend or make a distribution on its outstanding shares of
Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock into a
greater number of shares, or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of
shares, the Exercise Price in effect at the time of the record
date for such dividend or distribution or of the effective
date of such subdivision, combination or reclassification
shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price by a fraction, the
denominator of which shall be the number of shares of Common
Stock outstanding after giving effect to such action, and the
numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such action. Such
adjustment shall be made successively whenever any event
listed above shall occur.
(2) Whenever the Exercise Price payable upon
exercise of each Warrant is adjusted pursuant to Subsection
(1) above, the number of Shares purchasable upon exercise of
this Warrant shall simultaneously be adjusted by multiplying
the number of Shares initially issuable upon exercise of this
Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as
adjusted.
(3) All calculations under this Section (f) shall
be made to the nearest cent or to the nearest share, as the
case may be.
(4) Whenever the Exercise Price is adjusted, as
herein provided, the Company shall promptly but no later than
10 days after any request for such an adjustment by the
Holder, cause a notice setting forth the adjusted Exercise
Price and adjusted number of Shares issuable upon exercise of
each Warrant, and, if requested, information describing the
transactions giving rise to such adjustments, to be mailed to
the Holder at his last addressee appearing in the Warrant
Register, and shall cause a certified copy thereof to be
mailed to its transfer agent, if any. The Company may retain
a firm of independent certified public accountants selected by
the Board of Directors (who may be the regular accountants
employed by the Company) to make any computation required by
this Section (f), and a certificate signed by such firm shall
be conclusive evidence of the correctness of such adjustment.
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(5) Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable
upon exercise of this Warrant, Warrants theretofore or
thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar
Warrants initially issuable pursuant to this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price
shall be adjusted as required by the provisions of the foregoing Section, the
Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Exercise Price determined as herein
provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of Common
Stock, if any, and such other facts as shall be necessary to show the reason
for and the manner of computing such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
the holder or any holder of a Warrant executed and delivered pursuant to
Section (a) and the Company shall, forthwith after each such adjustment, mail a
copy by certified mail of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant
shall be outstanding, (i) if the Company shall pay any dividend or make any
distribution upon the Common Stock or (ii) if any capital reorganization of the
Company, reclassification of the capital stock of the Company, consolidation or
merger of the Company with or into another corporation, sale, lease or transfer
of all or substantially all of the property and assets of the Company to
another corporation, or voluntary or involuntary dissolution, liquidation or
winding up of the Company shall be effected, then in any such case, the Company
shall cause to be mailed by certified mail to the Holder, at least fifteen days
prior to the date specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating the date on
which (x) a record is to be taken for the purpose of such dividend,
distribution or rights, or (y) such reclassification, reorganization,
consolidation, merger, conveyance, lease, dissolution, liquidation or winding
up is to take place and the date, if any is to be fixed, as of which the
holders of Common Stock or other securities shall receive cash or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case
of any reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company, or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger
with a subsidiary in which merger the Company is the continuing corporation and
which does not result in any reclassification, capital reorganization or other
change of outstanding shares of Common Stock of the class issuable upon
exercise of this Warrant) or in case of any sale, lease or conveyance to
another corporation of the property of the Company as an entirety, the Company
shall, as
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a condition precedent to such transaction, cause effective provisions to be
made so that the Holder shall have the right thereafter by exercising this
Warrant at any time prior to the expiration of the Warrant, to purchase the
kind and amount of shares of stock and other securities and property receivable
upon such reclassification, capital reorganization and other change,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock which might have been purchased upon exercise of this Warrant
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. Any such provision shall include provision for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. The foregoing provisions of this Section (i)
shall similarly apply to successive reclassifications, capital reorganizations
and changes of shares of Common Stock and to successive consolidations,
mergers, sales or conveyances. In the event that in connection with any such
capital reorganization or reclassification, consolidation, merger, sale or
conveyance, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of Subsection (1) of Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The Company shall advise the Holder of this
Warrant or of the Warrant Shares or any then holder of
Warrants or Warrant Shares (such persons being collectively
referred to herein as "Holders") by written notice at least
four weeks prior to the filing of any registration statement
or post-effective amendment thereto under the Securities Act
of 1933 (the "Act") covering securities of the Company and
will for a period of five (5) years, upon the request of any
such Holder, include in any such registration statement such
information as may be required to permit a public offering of
the Warrant Shares. The Company shall supply prospectuses and
other documents as the Holder may request in order to
facilitate the public sale or other disposition of the Warrant
Shares, use its best efforts to qualify the Warrant Shares for
sale in such states as the Holder may reasonably designate and
do any and all other acts and things which may be reasonably
necessary or desirable to enable such Holder to consummate the
public sale or other disposition of the Warrant Shares, and
furnish indemnification in the manner as set forth in
Subsection (2)(C) of this Section (j). If, in the written
opinion of the Company's managing underwriter, if any, for
such offering, the inclusion of all or a portion of the
Warrant Shares requested to be registered, when added to the
securities being registered by the Company or the selling
shareholder(s), will exceed the maximum amount of the
Company's securities which can be marketed (i) at a price
reasonably related to their then current market value, or (ii)
without otherwise materially adversely affecting the entire
offering, then the Company may exclude from such offering all
or a
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portion of the Warrant Shares which it has been requested to
register. If securities are proposed to be offered for sale
pursuant to such Registration Statement by other security
holders of the Company and the total number of securities to
be offered by the requesting Holders and such other selling
security holders is required to be reduced pursuant to a
request from the managing underwriter (which request shall be
made only for the reasons and in the manner set forth above)
the aggregate number of Warrant Shares to be offered by
requesting Holders pursuant to such Registration Statement
shall equal the number which bears the same ratio to the
maximum number of securities that the underwriter believes may
be included for all the selling security holders (including
the requesting Holders) as the original number of Registrable
Securities proposed to be sold by the requesting Holders bears
to the total original number of securities proposed to be
offered by the requesting Holders and the other selling
security holders. The Holder shall furnish information and
indemnification as set forth in Subsection (2)(C) of this
Section (j).
(2) The following provision of this Section (j)
shall also be applicable:
(A) The Company shall bear the entire
cost and expense of any registration of securities
initiated by it under Subsection (1) of this Section
(j) notwithstanding that Warrant Shares subject to
this Warrant may be included in any such
registration. The Holder, however, shall bear the
fees of his own counsel and any registration fees,
transfer taxes or underwriting discounts or
commissions applicable to the Warrant Shares sold by
him pursuant thereto.
(B) The Company shall indemnify and hold
harmless each such holder and each underwriter,
within the meaning of the Act, who may purchase from
or sell for any such holder any Warrant Shares from
and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in any
registration statement under the Act or any
prospectus included therein required to be filed or
furnished by reason of this Section (j) or caused by
any omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue
statement or alleged untrue statement or omission or
alleged omission based upon information furnished or
required to be furnished in writing to the Company by
the Holder or underwriter expressly for use therein,
which indemnification shall include each
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person, if any, who controls any such underwriter
within the meaning of such Act provided, however,
that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or
alleged omission made in said registration statement,
said preliminary prospectus, said final prospectus or
said amendment or supplement in reliance upon and in
conformity with written information furnished or
required, to be furnished by the Holder specifically
for use in the preparation thereof.
(C) Each Holder, if requested by the
Company and the managing underwriter of any such
public offering by the Company, shall agree not to
sell publicly or otherwise transfer or dispose of any
Warrant Shares for a specified period of time (not to
exceed six (6) months) following the effective date
of such Registration Statement provided, that such
agreement shall only apply to the Company's initial
public offering of its securities.
The Company's agreements with respect to
Warrant Shares in this Section (j) shall continue in
effect regardless of the exercise and surrender of
this Warrant.
(k) REDEMPTION.
(1) At any time, on not less than thirty (30)
days notice, this Warrant may be redeemed, at the option of
the Company, at a redemption price of $.05 per Warrant,
provided the market price of the Common Stock receivable upon
exercise of such Warrant shall exceed $6.00 per share (the
"Target Price"), subject to adjustment as set forth in Section
k(5), below. Market price for the purpose of this Section (k)
shall mean (i) the average closing bid price, for any ten (10)
out of fifteen (15) consecutive business days, ending within
fifteen (15) days of the date of the notice of redemption,
which notice shall be mailed no later than five days
thereafter, of the Common Stock as reported by the National
Association of Securities Dealers, Inc. Automatic Quotation
System or (b) the last reported sale price, for any ten (10)
out of fifteen (15) consecutive business days, ending within
fifteen (15) days of the date of the notice of redemption,
which notice shall be mailed no later than five days
thereafter, on the primary exchange on which the Common Stock
is traded, if the Common Stock is traded on a national
securities exchange. All Warrants must be redeemed if any are
redeemed.
(2) The notice of redemption shall specify (a)
the redemption price, (b) the date fixed for redemption, (c)
the place where the Warrant shall be
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delivered and the redemption price paid, and (d) that the
right to exercise the Warrant shall terminate at 5:00 P.M.
(New York time) on the business day immediately preceding the
date fixed for redemption. The date fixed for the redemption
of the Warrant shall be the Redemption Date. No failure to
mail such notice nor any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such
redemption except as to a holder (x) to whom notice was not
mailed or (y) whose notice was defective. An affidavit of the
Company that notice of redemption has been mailed shall, in
the absence of fraud, be prima facie evidence of the facts
stated therein.
(3) Any right to exercise this Warrant shall
terminate at 5:00 P.M. (New York time) on the business day
immediately preceding the Redemption Date. On and after the
Redemption Date, the Holder of the Warrant shall have no
further rights except to receive, upon surrender of the
Warrant, the Redemption Price.
(4) From and after the Redemption Date, the
Company shall, at the place specified in the notice of
redemption, upon presentation and surrender to the Company by
or on behalf of the Holder thereof of one or more Warrants to
be redeemed, deliver or cause to be delivered to or upon the
written order of such Holder a sum in cash equal to the
redemption price of each such Warrant. From and after the
Redemption Date such Warrants shall expire and become void and
all rights hereunder, except the right to receive payment of
the redemption price, shall cease.
(5) If the shares of the Company's Common Stock
are subdivided or combined into a greater or smaller number of
shares of Common Stock, the Target Price shall be
proportionally adjusted by the ratio which the total number of
shares of Common Stock outstanding immediately prior to such
event bears to the total number of shares of Common Stock to
be outstanding immediately after such event.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its
name by its President.
TELECHIPS CORPORATION
By
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C. A. Xxxxx
President
[SEAL]
Dated: As of September 16, 1994
Attest:
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Xxxx Xxxxxx
Secretary
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PURCHASE FORM
Dated _____________, 19__
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ___________ shares of Common Stock and
hereby makes payment of ___________ in payment of the actual exercise price
thereof.
__________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name________________________________________________________________
(Please typewrite or print in block letters)
Address ____________________________________________________________
Signature___________________________________________________________
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