Exhibit 4(d)
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "Agreement"), dated as of this 12th day May,
2000, is by and between Relm Wireless Corporation, a Nevada corporation (the
"Company"), and Xxxxxxxx Capital Limited ("SCL").
W I T N E S S E T H:
WHEREAS, the Company and SCL have entered into an strategic consulting and
advisory services agreement dated March 23, 2000 (the "Agreement");
WHEREAS, in consideration for the services to be provided by SCL under the
Agreement, the Company desires to issue, and SCL desires to accept, Warrants (as
defined in Section 1), represented by certificates substantially in the form
attached hereto as Exhibit A (such certificates, "Warrant Certificates"), which
SCL may exercise to purchase Underlying Shares (as defined in Section 1)
pursuant to the terms of this Agreement and the Warrant Certificates; and
WHEREAS, pursuant to this Agreement, SCL shall receive initially 300,000
Warrants;
NOW, THEREFORE, in consideration of the services to be provided by SCL to
the Company under the Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and for the purpose of
defining the terms and provisions of the Warrants and the Warrant Certificates
and the respective rights and obligations thereunder of the Company, SCL and the
Warrant Holders (as defined in Section 1), the parties hereto hereby agree as
follows:
SECTION 1. Definitions. The following terms as used in this Agreement shall
have the meanings set forth below:
(a) "Assignment Form" means the form attached hereto as Exhibit C;
(b) "Business Day" means a day other than a Saturday, Sunday or other day
on which banks in the State of New York are authorized by law to remain closed;
(c) "Cashless Exercise" shall have the meaning set forth in Section 2(c)
hereof;
(d) "Cashless Exercise Form" means the form attached hereto as Exhibit B;
(e) "Claims" shall have the meaning set forth in Section 5(e) hereof;
(f) "Common Stock" shall mean the Company's common stock, par value $.60
per share;
(g) "Company" shall have the meaning set forth in the introductory
paragraph, or any successor thereof;
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended;
(i) "Exercise Date" shall mean any date on which the Company shall have
received (i) a Warrant Certificate representing a Warrant, together with a
Subscription Form or Cashless Exercise Form duly executed by the Warrant Holder,
or his, her or its attorney-in-fact duly authorized in writing, and (ii) if
other than a Cashless Exercise, payment in cash, or by official bank or
certified check made payable to the Company, of an amount in lawful money of the
United States of America equal to the Underlying Share Purchase Price, plus
transfer taxes, if any;
(j) "Indemnified Party" shall have the meaning set forth in Section 5(e)
hereof;
(k) "Initial Exercise Date" shall have the meaning set forth in Section
2(a) hereof;
(l) "Inspectors" shall have the meaning set forth in Section 5(b)(xi)
hereof;
(m) "Agreement" shall have the meaning set forth in the recitals hereto;
(n) "SCL" shall have the meaning set forth in the introductory paragraph;
(o) "NASDAQ" means the Nasdaq SmallCap Market;
(p) "Registrable Securities" means (i) the Warrants, (ii) the Underlying
Shares and other securities issued or issuable upon exercise of the Warrants,
and (iii) any securities issued or issuable with respect to Common Stock or any
of the securities referred to in subpart (ii) by the way of stock dividend or
stock split or in connection with a combination or reorganization or otherwise;
(q) "SEC" means the Securities and Exchange Commission;
(r) "SEC Reports" shall have the meaning set forth in Section 3(c) hereof;
(s) "Subscription Form" means the form attached hereto as Exhibit D;
(t) "Registration Statement" shall have the meaning set forth in Section
5(a) hereof;
(u) "Requested Information" shall have the meaning set forth in Section
5(c) hereof;
(v) "Rule 144" shall have the meaning set forth in Section 5(g) hereof;
(w) "Securities Act" means the Securities Act of 1933, as amended;
(x) "Transfer Agent" means American Stock Transfer & Trust Company, or such
other firm as may then be acting as the transfer agent of the Company;
(y) "Underlying Share Expiration Date" means the last date on which the
Warrants to purchase the Underlying Shares may be exercised, which shall be 5:00
p.m., New York City time, on the day before the date which is five years from
the date hereof, or if such expiration
2
date is not a Business Day, at or before 5:00 p.m. New York City time on the
next following Business Day;
(z) "Underlying Share Purchase Price" shall mean the purchase price to be
paid upon the exercise of the Warrants with respect to the Underlying Shares in
accordance with the terms hereof, which price shall be $3.25 per Underlying
Share, subject to adjustment from time to time pursuant to the provisions of
Section 4;
(aa) "Underlying Shares" means the 300,000 shares of Common Stock that are
the subject of the Warrants, subject to adjustment from time to time as provided
herein;
(bb) "Violation" shall have the meaning set forth in Section 5(e) hereof;
(cc) "Warrants" means the right to purchase the Underlying Shares pursuant
to this Agreement, together with any divisions thereof;
(dd) "Warrant Certificates" shall have the meaning set forth in the
recitals hereto; and
(ee) "Warrant Holder" means a person or entity in whose name the Warrants
shall be either initially or subsequently registered upon the books to be
maintained by the Company for such purpose.
SECTION 2. Duration and Exercise.
(a) Duration. The Warrants shall be exercisable at the earlier of (i) the
approval by the shareholders of the Company, at the Annual Meeting of
Shareholders to be held in the year 2000, of a financing plan developed by the
Company and Xxxxxx Xxxxxxxxxx Xxxxx LLC, and (ii) September 16, 2000 (the
"Initial Exercise Date"). On and subsequent to the Initial Exercise Date, the
Warrants may be exercised from time to time, upon the terms and subject to the
conditions set forth herein, at any time on or before the Underlying Share
Expiration Date. If the Warrants are not exercised in accordance with the terms
hereof on or before the Underlying Share Expiration Date, the Warrant Holder
shall no longer be entitled to purchase the Underlying Shares and all rights
hereunder to purchase such Underlying Shares shall thereupon cease.
3
(b) Exercise.
(i) A Warrant Holder may exercise the Warrants, in whole or in part, to
purchase the Underlying Shares in such amounts as may be elected upon surrender
of the Warrant Certificate(s), together with duly executed Subscription Form(s),
to the Company at its corporate office, together with the full Underlying Share
Purchase Price for each Underlying Share to be purchased, in lawful money of the
United States, or by certified check or bank draft payable in United States
dollars to the order of the Company and upon compliance with and subject to the
conditions set forth herein and in the Warrant Certificate(s).
(ii) Upon receipt of such Warrant Certificate(s), together with the
duly executed Subscription Form(s), and accompanied by payment of the Underlying
Share Purchase Price for the number of Underlying Shares for which such Warrants
are then being exercised, the Company shall, subject to Section 6(b) hereof,
cause to be issued and delivered promptly, but in no event later than the third
Business Day after the date on which the Company receives the Warrant
Certificate(s), the Subscription Form(s) and the Underlying Share Purchase
Price, to the Warrant Holder certificates for such shares of Common Stock in
such denominations as are requested by the Warrant Holder in the Subscription
Form(s).
(iii) In case a Warrant Holder shall exercise Warrants with respect to
less than all of the Underlying Shares, the Company will execute new Warrant
Certificate(s), substantially in the form attached hereto as Exhibit A, which
shall be exercisable for the balance of the Underlying Shares that may be
purchased upon exercise of the unexercised portion of the Warrants and shall
deliver such new Warrant Certificate(s) to the Warrant Holder. Warrant
Certificates shall be executed on behalf of the Company by the Company's
Chairman of the Board, President or any Vice President and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary.
(iv) Warrants shall be deemed to have been exercised immediately prior
to the close of business on the Exercise Date, and the person entitled to
receive the Underlying Shares and any Warrant Certificate(s) representing the
unexercised portion of the Warrants deliverable upon such exercise shall be
treated for all purposes as the holder of such Underlying Shares and unexercised
Warrants, respectively, upon such exercise as of the close of business on the
Exercise Date.
(v) The Company covenants and agrees that it will pay when due and
payable any and all taxes that may be payable in respect of the issue of the
Warrants or the issue of any Underlying Shares. The Company shall not, however,
be required to pay any tax that may be payable in respect of any transfer by the
Warrant Holder of the Warrants or any Underlying Shares to any person or entity
at the time of surrender. Until the payment of the tax referred to in the
previous sentence and the presentation to the Company by the Warrant Holder of
reasonable proof of such payment, the Company shall not be required to issue
Underlying Shares or new Warrant Certificates representing unexercised Warrants
to any transferee.
(c) Cashless Exercise. In lieu of payment of the Underlying Share Purchase
Price, a Warrant Holder may exercise the Warrants, in whole or in part, by
presentation and surrender of
4
Warrant Certificate(s) to the Company, together with a duly executed Cashless
Exercise Form (or a reasonable facsimile thereof) (a "Cashless Exercise").
Acceptance by the Company of such presentation and surrender shall be deemed a
waiver of the Warrant Holder's obligation to pay all or any portion of the
Underlying Share Purchase Price in cash, as the case may be. In the event of a
Cashless Exercise, the Warrant Holder shall exchange Warrants for that number of
shares of Common Stock determined by multiplying the number of shares of Common
Stock for which the Warrants are being exercised by a fraction, the numerator of
which shall be the difference between the then current market price per share of
the Common Stock and the Underlying Share Purchase Price, and the denominator of
which shall be the then current market price per share of Common Stock. For
purposes of any computation under this Section 2(c) or elsewhere in this
Agreement, the then current market price per share of Common Stock at any date
shall be deemed to be the average for the ten (10) consecutive Business Days
immediately prior to the date the Warrant Certificate(s) and Cashless Exercise
Form is received by the Company, or the date of any payment of cash for
fractional shares pursuant to Section 6(b) hereof, of the daily closing prices
of the Common Stock on the principal national securities exchange on which the
Common Stock is admitted to trading or listed or as reported by the NASDAQ
National Market System, or if not listed or admitted to trading on any such
exchange or the NASDAQ National Market System, the last reported sales prices as
included for quotation on NASDAQ, or if not included for quotation on NASDAQ,
the average of the highest reported bid and lowest reported asked prices in
another over-the-counter market or if not then publicly traded, the fair market
price of the Common Stock as determined by the Board of Directors of the
Company.
SECTION 3. Covenants.
(a) Issuance and Sale of Underlying Shares. The Company covenants that it
will at all times reserve and keep available, free from preemptive rights, out
of its authorized Common Stock, solely for the purpose of issuance upon exercise
of the Warrants, such number of shares of Common Stock as shall equal the
aggregate number of the Underlying Shares. The Company covenants that all shares
of Common Stock that shall be issuable upon exercise of the Warrants shall, at
the time of delivery, and, subject to Section 2(c) hereof, upon receipt by the
Company of the Underlying Share Purchase Price, be duly and validly issued,
fully paid, nonassessable and free from all taxes, liens and charges with
respect to the issue thereof (other than those which the Company shall promptly
pay or discharge).
The Transfer Agent for the Common Stock will be irrevocably authorized and
directed at all times to reserve such number of authorized shares of Common
Stock as shall be required for such purpose. The Company will keep a copy of
this Agreement on file with the Transfer Agent. The Company will supply such
Transfer Agent with duly executed certificates for such purposes and will
provide or otherwise make available any cash which may be payable as provided in
Section 6(b) hereof. The Company will furnish such Transfer Agent with a copy of
all notices of adjustments and certificates related thereto transmitted to the
Warrant Holder pursuant to Section 4(c) hereof.
(b) SEC Reports. So long as the Warrants remain outstanding, the Company
shall cause copies of all of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is
5
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act ("SEC Reports") to be mailed to the Warrant Holder at his, her or its
address appearing in the register of warrant holders maintained by the Company,
in each case, within 15 days of filing with the SEC. If the Company is not
subject to the requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall nevertheless continue to cause SEC Reports comparable to those
which it would be required to file pursuant to Section 13 or 15(d) of the
Exchange Act if it were subject to the requirements of either such section, to
be so filed with the SEC (but only if the SEC permits such filings) and mailed
to the Warrant Holder, in each case, within the same time periods as would have
applied (including under the preceding sentence) had the Company been subject to
the requirements of Section 13 or 15(d) of the Exchange Act.
(c) Restrictive Legend. Each Warrant Certificate and certificate evidencing
shares of Common Stock issued to the Warrant Holder following the exercise of
Warrants shall bear the following restrictive legend until such time as the
transfer of such security is not restricted under the federal securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN
OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY
SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
SECTION 4. Adjustment of Underlying Share Purchase Price and Number of
Underlying Shares. The number of Underlying Shares purchasable upon the exercise
of the Warrants and the payment of the Underlying Share Purchase Price shall be
subject to adjustment from time to time as follows:
(a) Dividends; Reclassifications, etc. In the event that the Company shall,
at any time prior to the earlier to occur of (i) the complete exercise of all
Warrants, and (ii) the Underlying Share Expiration Date: (A) declare or pay to
the holders of the Common Stock a dividend payable in any kind of shares of
capital stock of the Company; (B) change or divide or otherwise reclassify its
Common Stock into the same or a different number of shares with or without par
value, or in shares of any class or classes; (C) transfer its property as an
entirety or substantially as an entirety to any other company or entity; or
(D) make any distribution of its assets to holders of its Common Stock as a
liquidation or partial liquidation dividend or by way of return of capital;
then, upon the subsequent exercise of Warrants, the Warrant Holder shall
receive, in
6
addition to or in substitution for the shares of Common Stock to which he, she
or it would otherwise be entitled upon such exercise, such additional shares of
stock or scrip of the Company, or such reclassified shares of stock of the
Company, or such shares of the securities or property of the Company resulting
from transfer, or such assets of the Company, which he, she or it would have
been entitled to receive had he, she or it exercised the Warrants prior to the
happening of any of the foregoing events.
(b) Reorganization of the Company. If the Company is a party to a merger or
other transaction which reclassifies or changes its outstanding Common Stock,
upon consummation of such transaction, the Warrants shall automatically become
exercisable into the kind and amount of securities, cash or other assets which
the Warrant Holder would have owned immediately after such transaction if the
Warrant Holder had exercised the Warrants at the Underlying Share Purchase Price
in effect immediately before the effective date of the transaction. Concurrently
with the consummation of such transaction, the person obligated to issue
securities or deliver cash or other assets upon exercise of the Warrants shall
execute and deliver to the Warrant Holder new Warrants so providing and further
providing for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided in this Section 4(b). The successor
company also shall mail to the Warrant Holder a notice describing the new
Warrants.
If securities deliverable upon exercise of Warrants, as provided above, are
themselves convertible into the securities of an affiliate of a corporation
formed, surviving or otherwise affected by the merger or other transaction, that
issuer shall join in the new Warrants which shall so provide. If this section
applies, Section 4(a) does not apply.
(c) Sale of Common Stock Below the Underlying Share Purchase Price. (i) If,
after the date hereof, the Company shall (except as hereinafter provided) issue
any shares of Common Stock for a consideration less than the Underlying Share
Purchase Price then in effect, then the Underlying Share Purchase Price upon
each such issuance shall be adjusted to that price (calculated to the nearest
one cent) determined by multiplying the Underlying Share Purchase Price in
effect immediately prior to such event by a fraction:
(A) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to the issuance of such additional
shares of Common Stock plus the number of shares of Common Stock which the
aggregate consideration for the total number of such additional shares of Common
Stock so issued would purchase at the then effective Underlying Share Purchase
Price, and
(B) the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to the issuance of such additional
shares of Common Stock plus the number of such additional shares of Common Stock
so issued.
(ii) In addition to the adjustment to the Underlying Share Purchase
Price described in subsection (i) above, in the event the Company shall (except
as hereinafter provided) issue any shares of Common Stock for a consideration
less than the Underlying Share Purchase Price then in effect, then the number of
Underlying
7
Shares purchasable upon the exercise of a Warrant shall be increased to a number
determined by multiplying the number of Underlying Shares so purchasable
immediately prior to the date of such issuance or sale by a fraction, the
numerator of which shall be the Underlying Share Purchase Price in effect
immediately prior to the adjustment required by subsection (i) above and the
denominator of which shall be the Underlying Share Purchase Price in effect
immediately after such adjustment.
(iii) Anything in this Section 4(c) to the contrary notwithstanding, no
adjustment in the Underlying Share Purchase Price or the number of shares of
Common Stock purchasable upon the exercise of a Warrant shall be made in
connection with:
(A) the grant, issuance or exercise of any Common Stock pursuant
to the Company's qualified or non-qualified employee stock option plans or any
other bona fide employee benefit plan or incentive arrangement, adopted or
approved by the Company's Board of Directors or approved by the Company's
shareholders, as they may be amended from time to time, or under any other bona
fide employee benefit plan hereafter adopted by the Company's Board of
Directors;
(B) the grant, issuance or exercise of any Common Stock in
connection with the hire or retention of any officer, director or key employee
of the Company, provided such grant is approved by the Company's Board of
Directors;
(C) the issuance of any shares of Common Stock pursuant to the
grant or exercise of convertible securities outstanding as of the date hereof;
or
(D) shares issued, subdivided or combined in transactions
described in Section 4(a) if and to the extent that the number of shares of
Common Stock received upon exercise of Warrants shall have been previously
adjusted pursuant to Section 4(a) as a result of such issuance, subdivision or
combination of such securities.
(iv) For purposes of this Section 4(c) , the following provisions shall
also be applied:
(A) In the event of the issuance or sale of additional shares of
Common Stock for cash, the consideration received by the Company therefor shall
be deemed to be the amount of cash received by the Company for such shares,
before deducting therefrom any commissions, compensation or other expenses paid
or incurred by the Company for any underwriting of, or otherwise in connection
with, the issuance or sale of such shares.
(B) In the event of the issuance of shares of Common Stock for a
consideration in whole or in part, other than cash, the consideration other than
cash shall be deemed to be the current market price thereof as reasonably
determined in good faith by the Board of Directors of the Company (irrespective
of accounting treatment thereof); provided, however, that if such consideration
consists of the cancellation of debt issued by the Company, the consideration
shall be deemed to be the amount the Company received upon issuance of such debt
(gross proceeds) plus accrued interest and, in the case of original issue
discount or zero coupon indebtedness, accrued value to the date of such
cancellation.
8
(C) In the event of the issuance of additional shares of Common
Stock upon the conversion or exchange of any obligations, the amount of the
consideration received by the Company for such Common Stock shall be deemed to
be the consideration received by the Company for such obligations or shares so
converted or exchanged, before deducting from such consideration so received by
the Company any expenses or commissions or compensation incurred or paid by the
Company for any underwriting of, or otherwise in connection with, the issuance
or sale of such obligations or shares, plus any consideration received by the
Company in connection with such conversion or exchange. If obligations or shares
of the same class or series of a class as the obligations or shares so converted
or exchanged have been originally issued for different amounts of consideration,
then the amount of consideration received by the Company upon the original
issuance of each of the obligations or shares so converted or exchanged shall be
deemed to be the average amount of the consideration received by the Company
upon the original issuance of all such obligations or shares.
(v) Anything in this Section 4(c) to the contrary notwithstanding, no
adjustment in the Underlying Share Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least $0.15 in such
Underlying Share Purchase Price; provided, however, that any adjustments which
by reason of this subsection 4(c)(v) are not required to be made shall be
carried forward and taken into account in making subsequent adjustments.
(d) Notice to Holder. If, at any time while Warrants remain outstanding,
the Company shall pay any dividend payable in cash or in Common Stock, shall
offer to the holders of its Common Stock for subscription or purchase by them
any shares of stock of any class or any other rights, shall enter into an
agreement to merge or consolidate with another corporation, shall propose any
capital reorganization or reclassification of the capital stock of the Company,
including any subdivision or combination of its outstanding shares of Common
Stock, or there shall be contemplated a voluntary or involuntary dissolution,
liquidation or winding up of the Company, the Company shall cause notice thereof
to be mailed to the registered Warrant Holder at his, her or its address
appearing on the registration books of the Company, at least 30 days prior to
the record date as of which holders of Common Stock shall participate in such
dividend, distribution or subscription or other rights or at least 30 days prior
to the effective date of the merger, consolidation, reorganization,
reclassification or dissolution.
SECTION 5. Registration Rights.
(a) Inclusion in Registration of Common Stock Issuable Upon Conversion of
Notes. The Warrant Holder shall have the right to include the Warrants and
Underlying Shares in the registration statement to be filed by the Company in
connection with the registration of the shares of Common Stock issuable upon
conversion of the Company's 8% Convertible Subordinated Promissory Notes due
December 31, 2004 (the "Registration Statement"). The Company shall provide
written notice to the Warrant Holder at least 5 Business Days prior to filing
the Registration Statement. If the Warrant Holder intends to include any
Registrable Securities in the Registration Statement, the Warrant Holder must
notify, in writing, the Company of its intention to do so at least 2 Business
Days prior to the date the Registration Statement is to be filed with the SEC.
The Company shall maintain the effectiveness of the Registration Statement
9
until such time as is the earlier of (i) the date on which all Registrable
Securities being registered thereunder have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof set forth
in the Registration Statement, or (ii) the date that is 2 years from the date
the Warrants are issued hereunder.
(b) Obligations of the Company. In connection with the registration of the
Registrable Securities as contemplated by Section 5(a), the Company shall:
(i) prepare the Registration Statement and file it with the SEC, and
thereafter use its reasonable best efforts to cause the Registration Statement
to become effective, which Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(ii) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the registration statement as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement until such time as
is the earlier of (A) the date on which all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in the Registration Statement, or (B) the
date that is 2 years from the date the Warrants are issued hereunder;
(iii) furnish to the Warrant Holder such number of copies of a
prospectus, including a preliminary prospectus and all amendments and
supplements thereto, and such other documents, as the Warrant Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by the Warrant Holder;
(iv) use reasonable efforts to (A) register and qualify the Registrable
Securities covered by the Registration Statement under such other securities or
Blue Sky laws of such jurisdictions reasonably requested by the Warrant Holder,
(B) prepare and file in those jurisdictions all required amendments (including
post-effective amendments) and supplements, (C) take such other actions as may
be necessary to maintain such registrations and qualifications in effect at all
times the Registration Statement is in effect, and (D) take all other actions
necessary or advisable to enable the disposition of such securities in all such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 5(b);
(v) (A) in the case of an underwritten offering, enter into and perform
its obligations under an underwriting agreement with the managing underwriter of
such offering, in usual and customary form, including, without limitation,
customary indemnification and contribution obligations, and (B) in the case of
any non-underwritten offering, provide to broker-dealers
10
participating in any distribution of Registrable Securities reasonable
indemnification substantially similar to that provided by Section 5(e) hereof.
(vi) promptly notify the Warrant Holder of the happening of any event
of which the Company has knowledge, as a result of which the prospectus included
in the Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances then existing, not misleading, and use its best efforts to prepare
promptly a supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and deliver a number of copies of such supplement
or amendment to the Warrant Holder as he, she or it may reasonably request;
(vii) promptly notify the Warrant Holder (or, in the event of an
underwritten offering, the managing underwriters) of the issuance by the SEC of
any stop order or other suspension of effectiveness of the Registration
Statement, and make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible time;
(viii) permit counsel to the Warrant Holder to review the Registration
Statement and all amendments and supplements thereto for a reasonable period of
time prior to their filing with the SEC, and shall not file any document in a
form to which such counsel reasonably objects;
(ix) make generally available to its security holders as soon as
practical, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the Securities Act) covering a twelve month period beginning not later
than the first day of the Company's fiscal quarter next following the effective
date of the Registration Statement;
(x) at the request of the Warrant Holder, furnish on the date that
Registrable Securities are delivered to an underwriter for sale in connection
with the Registration Statement (A) a letter, dated such date, from the
Company's independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, and (B) an
opinion, dated such date, from counsel representing the Company for purposes of
such Registration Statement, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters;
(xi) make available for inspection by the Warrant Holder, any
underwriter participating in any disposition pursuant to the Registration
Statement, and any attorney, accountant, or other agent retained by the Warrant
Holder or underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the Company,
as shall be reasonably necessary to enable each Inspector to exercise its due
diligence responsibility in connection with the preparation of the Registration
Statement, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such Inspector in connection with
the Registration Statement;
11
(xii) use its best efforts either to (A) cause all the Registrable
Securities, except for the Warrants, covered by the Registration Statement to be
listed on a national securities exchange and on each additional national
securities exchange on which similar securities issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange or (B) secure designation of all the
Registrable Securities, except the Warrants, covered by the Registration
Statement as a NASDAQ "National Market Security" and the quotation of the
Registrable Securities on the NASDAQ National Market;
(xiii) provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
(xiv) cooperate with the Warrant Holder and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be sold pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, and
registered in such names as the managing underwriter or underwriters, if any, or
the Warrant Holder may reasonably request; and
(xv) take all other reasonable actions necessary to expedite and
facilitate disposition of Registrable Securities by the Warrant Holder pursuant
to the Registration Statement.
(c) Obligations of the Warrantholder.
(i) It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Warrant with respect to the Warrant Holder
that the Warrant Holder shall furnish to the Company such information regarding
the Warrant Holder, the Registrable Securities held by the Warrant Holder and
the intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registrable Securities and shall
execute such documents and agreements in connection with such registration as
the Company may reasonably request. At least 5 Business Days prior to the first
anticipated filing date of the Registration Statement, the Company shall notify
the Warrant Holder of the information the Company requires from he, she or it
(the "Requested Information") if he, she or it elects to have any of its
Registrable Securities included in the Registration Statement. If within 3
Business Days of the filing date the Company has not received the Requested
Information from the Warrant Holder, then the Company may file the Registration
Statement without including Registrable Securities of the Warrant Holder.
(ii) The Warrant Holder, by its, his or her acceptance of the
Registrable Securities, agrees to cooperate with the Company in connection with
the preparation and filing of any Registration Statement hereunder.
(iii) In the event of an underwritten offering, the Warrant Holder
agrees to enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including without limitation customary
indemnification and contribution obligations, with
12
the managing underwriter of such offering and to take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities, unless the Warrant Holder has decided not to
participate.
(iv) The Warrant Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
5(b)(vi), the Warrant Holder will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until its, his or her receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(b)(vi) and, if so
directed by the Company, the Warrant Holder shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
such destruction) all copies, other than permanent file copies then in its, his
or her possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
(d) Expenses of Registration. In connection with any and all registrations
pursuant to Section 5, all expenses other than underwriting discounts and
commissions incurred in connection with registration, filings or qualifications,
including, without limitation, all registration, listing, filing and
qualification fees, printing and accounting fees and costs, the fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements for one firm of counsel for the Warrant Holder shall be borne by
the Company.
(e) Indemnification. In the event any Registrable Securities are included
in a Registration Statement under this Warrant:
(i) To the extent permitted by law, the Company will indemnify and hold
harmless the Warrant Holder (in such capacity) and its members, managers,
directors, officers and/or agents, any underwriter (as defined in the Securities
Act) for the Warrant Holder, and each person, if any, who controls any such
underwriter within the meaning of Section 15 of the Securities Act
(collectively, an "Indemnified Party"), against any losses, claims, damages,
expenses, liabilities (joint or several) (collectively, "Claims") to which any
of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"); (A)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(B) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective date of
such Registration Statement, or contained in the final prospectus (as amended or
supplemented if the Company files any amendment thereof or supplement thereto
with the SEC), or the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Subject to the restrictions set forth in Section 5(e)(iv) with
respect to the number of legal counsel, the Company shall promptly reimburse the
Warrant Holder, and each such other person entitled to indemnification under
this Section 5(e)(i), as such expenses are incurred and are due and payable, for
any legal fees or other reasonable expenses incurred by them in
13
connection with investigating or defending any such Claim, whether or not such
Claim, investigation or proceeding is brought or initiated by the Company or a
third party. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 5(e)(i) shall not (A) apply
to a Claim arising out of or based upon a Violation which occurs in reliance
upon and in conformity with information furnished in writing to the Company by
the Warrant Holder expressly for use in connection with the preparation of the
Registration Statement, any prospectus or any such amendment thereof or
supplement thereto or any failure of the Warrant Holder to deliver a prospectus
as required by the Securities Act; or (B) apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of
the Company, which consent shall not be unreasonably withheld. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Warrant Holder and shall survive the transfer of the
Registrable Securities by the Warrant Holder as provided herein.
(ii) In connection with any Registration Statement in which the Warrant
Holder is participating in such capacity, the Warrant Holder agrees to indemnify
and hold harmless, to the same extent and in the same manner set forth in
Section 5(e)(i), the Company, each of its directors, each of its officers who
sign the Registration Statement, each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter (collectively, also an "Indemnified Party"), against any Claim to
which any of them may become subject, under the Securities Act, the Exchange Act
or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by the Warrant Holder expressly for use in connection
with such Registration Statement; and the Warrant Holder shall promptly
reimburse an Indemnified Party, as such expenses are incurred and are due and
payable, for any legal fees or other reasonable expenses incurred by the
Indemnified Party in connection with investigating or defending any such Claim,
whether or not such claim, investigation or proceeding is brought or initiated
by the Indemnified Party or a third party; provided, however, that the indemnity
agreement contained in this Section 5(e)(ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Warrant Holder, which consent shall not be unreasonably withheld;
provided, further, that the Warrant Holder shall be liable under this Section
5(e)(ii) for only that amount of a Claim as does not exceed the net proceeds to
it as a result of the sale of Registrable Securities pursuant to such
Registration Statement.
(iii) The Company shall be entitled to receive indemnification from
underwriters, selling brokers, dealer managers, and similar securities industry
professionals participating in the distribution to the same extent as provided
above, with respect to information about such persons so furnished in writing by
such persons expressly for inclusion in the Registration Statement.
(iv) Promptly after receipt by an Indemnified Party under this Section
5(e) of notice of the commencement of any action (including any governmental
action), such Indemnified Party shall, if a Claim in respect thereof is to be
made against any indemnifying
14
party under this Section 5(e), deliver to an indemnifying party a written notice
of the commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly given notice, to assume control of
the defense thereof with counsel satisfactory to the Indemnified Party;
provided, however, that an Indemnified Party shall have the right to retain its,
his or her own counsel, with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel for such party,
representation of such party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests between
such party and any other party represented by such counsel in such proceeding.
The Company shall pay for only one legal counsel for the Warrant Holder and any
Indemnified Party related thereto; such legal counsel shall be selected by the
Warrant Holder or such other Indemnified Party subject to the Company's approval
which shall not be unreasonably withheld. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to
another under this Section 5(e), except to the extent that such failure to
notify results in the forfeiture by the indemnifying party of substantive rights
or defenses. The indemnification required by this Section 5(e) shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as such expense, loss, damage or liability is incurred and is due
and payable.
(f) Contribution. To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which, he, she or it would
otherwise be liable under Section 5(e) to the fullest extent permitted by law;
provided, however, that (i) no contribution shall be made under circumstances
where the maker would not have been liable for indemnification under Section
5(e), (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning used in the Securities Act) shall be
entitled to contribution from any seller of Registrable Securities who was not
guilty of such fraudulent misrepresentation, and (iii) contribution by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities.
(g) Reports Under Exchange Act. With a view to making available to the
Warrant Holder the benefits of Rule 144 promulgated under the Securities Act or
any other similar rule or regulation of the SEC that may at any time permit the
security holders to sell securities of the Company to the public without
registration ("Rule 144"), the Company shall at all times:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(iii) furnish to the Warrant Holder while a holder hereof, promptly
upon request, (A) a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and the Exchange Act,
(B) a copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed with the
15
SEC by the Company, and (C) such other information as may be reasonably
requested to permit the Warrant Holder to sell such securities without
registration.
SECTION 6. Other Provisions Relating to Rights of the Warrant Holder.
(a) Warrant Holder not a Stockholder. The Warrant Holder, as such, shall
not be entitled to vote or receive dividends or be deemed holders of Common
Stock for any purpose whatsoever, nor shall anything contained in this Agreement
be construed to confer upon the Warrant Holder, as such, any of the rights of a
stockholder of the Company including, but not limited to, the right to vote for
the election of directors or on any other matter, give or withhold consent to
any action by the Company (whether upon any recapitalization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings or other action affecting stockholders (except for
notices provided for in this Agreement), receive dividends or subscription
rights, or otherwise until Warrants shall have been exercised to purchase
Underlying Shares, at which time the person or persons in whose name or names
the certificate or certificates for the shares of Common Stock are registered
shall be deemed the holder or holders of record of such shares of Common Stock
for all purposes.
(b) Fractional Shares. Anything contained herein to the contrary
notwithstanding, the Company shall not be required to issue any fractional
shares of Common Stock in connection with the exercise of the Warrants. In any
case where the Warrant Holder would, except for the provisions of this Section
6(b), be entitled under the terms of this Agreement to receive a fraction of a
share of Common Stock upon the exercise of the Warrants, the Company shall, upon
the exercise of the Warrants and receipt of the Underlying Share Purchase Price,
issue the largest number of whole shares of Common Stock purchasable upon
exercise of the Warrants. The Warrant Holder expressly waives his, her or its
right to receive a certificate of any fraction of a share of Common Stock upon
the exercise hereof. However, with respect to any fraction of a share of Common
Stock called for upon any exercise hereof, the Company shall pay to the Warrant
Holder an amount in cash equal to such fraction multiplied by the current market
price per share of Common Stock determined pursuant to Section 2(c) hereof.
(c) Absolute Owner. Prior to due presentment for registration of transfer
of the Warrant Certificates, the Company may deem and treat the Warrant Holder
as the absolute owner of the Warrants for the purpose of any exercise thereof
and for all other purposes and the Company shall not be affected by any notice
to the contrary.
SECTION 7. Division, Split-Up, Combination, Exchange and Transfer of
Warrants
(a) Request. The Warrants may be divided, split up, combined or exchanged
for other Warrants of like tenor to purchase a like aggregate number of
Underlying Shares. If the Warrant Holder desires to divide, split up, combine or
exchange the Warrants, he, she or it shall make such request in writing
delivered to the Company at its office in West Melbourne, Florida, or as
otherwise directed by the Company in writing, and shall surrender such Warrant
Certificates to be so divided, split up, combined or exchanged at said office.
Upon any such surrender for a division, split-up, combination or exchange, the
Company shall execute and deliver to the person or persons entitled thereto a
new Warrant Certificate(s) as so requested. The Company may
16
require the Warrant Holder to pay a sum sufficient to cover any tax,
governmental or other charge that may be imposed in connection with any
division, split-up, combination or exchange of the Warrants.
(b) Initial Issuance to SCL. The Company shall issue the right to purchase
300,000 Underlying Shares to SCL, as represented by a Warrant Certificate issued
to SCL in the form attached hereto as Exhibit A or, subject to compliance with
the Act, to such officers, managers or employees of SCL as SCL may direct.
(c) Assignment; Replacement of Warrant Certificates. The Warrants may be
sold, transferred, assigned or hypothecated by SCL at any time, in whole or in
part, subject to compliance with federal and state securities laws; provided,
however, that if the Warrants are not registered prior to any transfer,
assignment or hypothecation, SCL shall provide an opinion of counsel, which
opinion shall be reasonably satisfactory to counsel to the Company, that the
transfer, assignment or hypothecation qualifies for an exemption from
registration under the Act. Any division or assignment permitted of the Warrants
shall be made by surrender by the Warrant Holder of the Warrant Certificates to
the Company at its principal office with the Assignment Form attached as Exhibit
C hereto duly executed, together with funds sufficient to pay any transfer tax.
In such event, the Company shall, without charge, execute and deliver a new
Warrant Certificate in the name of the assignee named in such instrument of
assignment and the surrendered Warrant Certificate(s) shall promptly be
canceled. Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of the Warrant Certificate(s) and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and (in the case of mutilation) upon surrender and cancellation of such Warrant
Certificate(s), the Company will execute and deliver a new Warrant(s)
Certificate of like tenor and date and any such lost, stolen or destroyed
Warrant Certificate(s) shall thereupon become void.
SECTION 8. Other Matters.
(a) Taxes and Charges. The Company will from time to time promptly pay,
subject to the provisions of paragraph (v) of Section 2(b), all taxes and
charges that may be imposed upon the Company in respect of the issuance or
delivery, but not the transfer, of the Warrants or the Underlying Shares.
(b) Notices. Notice or demand pursuant to this Agreement to be given or
made by the Warrant Holder to or on the Company shall be sufficiently given or
made if delivered personally or by overnight courier, or sent by registered or
certified mail, postage prepaid, return receipt requested, or by facsimile
transmission, electronically confirmed and addressed, until another address is
designated in writing by the Company, as follows:
Relm Wireless Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President and Chief Executive Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
17
With a copy to:
Xxxxxxxxx Traurig, P.A.
777 South Flagler Drive, Suite 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Fascimile No.: (000) 000-0000
Notices to the Warrant Holder provided for in this Agreement shall be
deemed given or made by the Company if delivered personally or by overnight
courier, or sent by registered or certified mail, postage prepaid, return
receipt requested, or facsimile transmission electronically confirmed, addressed
to the Warrant Holder at his, her or its last known address or facsimile number
as shall appear on the registry books of the Company and at the following
address for SCL:
Xxxxxxxx Capital Limited
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx LIW 3Z4
Telephone No.: (000) 000-0000, Ext. 225
Facsimile No.: (000) 000-0000
Notices delivered in accordance with the foregoing provisions of this Section
7(b) shall be effective (i) when delivered, if delivered personally or by
facsimile transmission electronically confirmed, (ii) one Business Day after
being delivered (properly addressed and all fees paid) for overnight delivery to
a courier (such as Federal Express) which regularly provides such service and
regularly obtains executed receipts evidencing delivery, or (iii) five days
after being sent by registered or certified mail, postage prepaid, return
receipt requested.
(c) Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the laws of the State of New York, without giving
effect to the conflicts of laws principles thereof.
(d) Dispute Resolution. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration in the
City, County and State of New York in accordance with the Commercial Arbitration
Rules of the American Arbitration Association as supplemented by its Large
Complex Case Procedures, and judgment upon the award may be entered in any court
having jurisdiction thereof. The prevailing party, as determined by the
arbitrators, shall be entitled to receive an award of its reasonable attorneys'
fees, costs and disbursements.
(e) Exclusive Benefit. Nothing in this Agreement expressed or nothing that
may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than the
Company, SCL and the Warrant Holder any right, remedy or claim hereunder, and
all covenants, conditions, stipulations, promises and agreements contained in
this Agreement shall be for the sole and exclusive benefit of such
18
persons and their successors, survivors and permitted assigns hereunder. This
Agreement is for the benefit of and is enforceable by any subsequent Warrant
Holder.
(f) Headings. The article headings herein are for convenience only and are
not part of this Agreement and shall not affect the interpretation hereof.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
RELM WIRELESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
XXXXXXXX CAPITAL LIMITED
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
Its:
----------------------------------
20
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT
(OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES),
OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY
TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
No._____________
Warrant Certificate
RELM WIRELESS CORPORATION
This warrant certificate certifies that __________________, or its
registered assigns, is the registered holder of Warrants representing the right
to purchase __________ shares (the "Underlying Shares") of common stock, par
value $.60 per share (the "Common Stock") of Relm Wireless Corporation (the
"Company") in accordance with the terms of that certain Warrant Agreement dated
May ___, 2000 between the Company and Xxxxxxxx Capital Limited ("SCL") (the
"Warrant Agreement"). The Warrants with respect to the Underlying Shares expire
on _____________ ___, _____ (the "Underlying Share Expiration Date").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Warrant Agreement.
The Warrants shall be exercisable at the earlier of (i) the approval by the
shareholders of the Company, at the Annual Meeting of Shareholders to be held in
the year 2000, of a financing plan developed by the Company and Xxxxxx
Xxxxxxxxxx Xxxxx LLC, and (ii) September 16, 2000 (the "Initial Exercise Date").
The Warrants entitle the registered holder, upon exercise from time to time from
9:00 a.m. New York City time on or after the Initial Exercise Date until 5:00
p.m. New York City time on the Underlying Share Expiration Date, to purchase
Underlying Shares at an exercise price per Underlying Share of $3.25 (the
"Underlying Share Purchase Price") in lawful money of the United States of
America upon surrender of this certificate and (i) delivery of a completed and
signed Subscription Form and payment of the Underlying Share Purchase Price, or
(ii) delivery of a completed and signed Cashless Exercise Form, all in
accordance with the terms of the Warrant Agreement. The Underlying Share
Purchase Price and the number of Underlying Shares issuable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
The Warrants with respect to the Underlying Shares may not be exercised
after 5:00 p.m. on the Underlying Share Expiration Date, and, to the extent not
exercised by such time, the Warrants shall become void.
This warrant certificate shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of laws
principles thereof. Any controversy or claim arising out of or relating to this
Warrant Certificate or the Warrant Agreement, or the breach thereof, shall be
settled by arbitration in the City, County and State of New York in accordance
with the Commercial Arbitration Rules of the American Arbitration Association as
supplemented by its Large Complex Case Procedures, and judgment upon the award
may be entered in any court having jurisdiction thereof. The prevailing party,
as determined by the arbitrators, shall be entitled to receive an award of its
reasonable attorneys' fees, costs and disbursements.
IN WITNESS WHEREOF, Relm Wireless Corporation has caused this warrant
certificate to be signed by its duly authorized officers.
Dated:__________________
RELM WIRELESS CORPORATION
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
EXHIBIT B
CASHLESS EXERCISE FORM
(To be executed upon exercise of Warrants pursuant to Section 2(c) of the
Warrant Agreement)
The undersigned hereby irrevocably elects to surrender ________ shares
purchasable under the Warrants represented by Warrant Certificates
No(s)._______________ being delivered herewith, for such shares of Common Stock
issuable in exchange therefor pursuant to the Cashless Exercise provisions of
the Warrant Agreement, as provided for in Section 2(c) of such Warrant
Agreement.
Please issue a certificate or certificates for ________ shares of Common
Stock in the name of, and pay cash for fractional shares in the name of:
(Please print name, address, and social security number/tax identification
number.)
and, if said number of shares of Common Stock shall not be all the shares
of Common Stock purchasable under the Warrants, that a new Warrant Certificate
for the balance remaining of the shares of Common Stock purchasable under the
Warrants be registered in the name of the undersigned Warrant Holder or its
transferee as below indicated and delivered to the address stated below.
Dated:_________________
Name of Warrant Holder
or transferee:
-----------------------------------------------------------------
(Please Print)
Address:
-----------------------------------------------------------------------
Signature:
---------------------------------------------------------------------
NOTE: Signature must conform to the name of Warrant Holder as
specified on the face of the Warrants or with the name of the
transferee appearing in the Assignment Form attached as
Exhibit C to the Warrant Agreement.
EXHIBIT C
ASSIGNMENT FORM
For value received, the undersigned hereby sells, assigns and transfers
unto ____________, whose address is _________________ and whose social security
or other identifying number is _______________, Warrants to purchase
__________________ Underlying Shares evidenced by Warrant Certificate(s) No(s).
_____________________, and hereby irrevocably constitutes and appoints the
Secretary of Relm Wireless Corporation (the "Company") as his, her or its
attorney-in-fact to transfer the same on the books of the Company with full
power of substitution and re-substitution. If said number of Underlying Shares
is less than all of the Underlying Shares purchasable under the Warrants so
assigned, the undersigned requests that a new Warrant Certificate representing
the remaining Warrants be registered in the name of ________________, whose
address is ___________________, whose social security or other identifying
number is _______________________, and that such Warrant Certificate be
delivered to _____________________, whose address is _____________________.
Date:
------------------ --------------------------------
(Signature)
--------------------------------
(Print Name)
EXHIBIT D
SUBSCRIPTION FORM
The undersigned hereby irrevocably elects to exercise Warrants, represented
by Warrant Certificate(s) No(s). ______________, to purchase __________
Underlying Shares and tenders payment herewith in the amount of $_____. The
undersigned requests that a certificate for such Underlying Shares be registered
in the name of __________, whose address is __________ and whose social security
or other identifying number is __________, and that such Underlying Shares be
delivered to __________, whose address is __________. If said number of
Underlying Shares is less than all of the Underlying Shares purchasable under
the Warrants, the undersigned requests that a new warrant certificate
representing the remaining Warrants be registered in the name of __________,
whose address is __________ and whose social security or other identifying
number is __________, and that such warrant certificate be delivered to
__________, whose address is __________.
Date:
---------------- ----------------------------
(Signature)
----------------------------
(Print Name)
