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EXHIBIT 4.10
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE WARRANT
AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
Warrant No. W-[__]
WIRELESS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued to [_______________] ("Holder") by Wireless, Inc., a
corporation (the "Company"), as of the date set forth beside the Company's
signature below.
1. PURCHASE OF SHARES. Subject to the terms and conditions hereinafter
set forth, Holder is entitled, upon surrender of this Warrant at the principal
office of the Company (or at such other place as the Company shall notify Holder
in writing), to purchase from the Company up to Ten Thousand (10,000) shares
(the "Shares") of common stock of the Company (the "Common Stock"), at an
exercise price of Four Dollars ($4.00) per share (the "Exercise Price"). The
Shares and the Exercise Price shall be subject to adjustment as set forth in
Section 7 hereof.
2. EXERCISE PERIOD. This Warrant shall be exercisable for a period (the
"Exercise Period") of sixty (60) months from the date hereof; PROVIDED, however,
that in the event of the earlier closing of (a) the issuance and sale of shares
of the Common Stock in the Company's first underwritten public offering (the
"IPO") pursuant to an effective registration statement under the Securities Act
of 1933, as amended, (b) a sale of all or substantially all the assets of the
Company, or (c) a merger or reorganization of the Company into or consolidation
with any other entity (excluding a reorganization or merger, the sole purpose of
which is to change the jurisdiction of incorporation of the Company) in which
shares representing a majority of the Company's voting power immediately prior
to the closing of such merger or reorganization are transferred, this Warrant
shall, upon the expiration of thirty (30) days following such event, no longer
be exercisable and become null and void. In the event of a proposed transaction
of the kind described above, the Company shall notify Holder in writing at least
fifteen (15) days prior to the consummation of such event or transaction.
3. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable during the Exercise Period, Holder may exercise, in whole or in
part, the purchase rights evidenced hereby. Such exercise shall be effected by:
(i) the surrender of the Warrant, together with a duly executed copy of the form
of Exercise Notice attached hereto, to the
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Secretary of the Company at its principal offices; and (ii) the payment to the
Company by cash, check or wire transfer of an amount equal to the aggregate
Exercise Price for the number of Shares being purchased.
4. NET ISSUANCE PROVISION. In lieu of exercising pursuant to paragraph 3
above, at the Holder's option, while this Warrant remains outstanding and
exercisable during the Exercise Period, Holder may exercise this Warrant by
surrender of this Warrant as determined below ("Net Issuance"). If the Holder
elects the Net Issuance method, the Company will issue Common Stock in
accordance with the following formula:
X = Y(A-B)
-----
A
Where:
X = the number of shares of Common Stock to be issued to the Holder.
Y = the number of shares of Common Stock requested to be
exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Common Stock.
B = the Exercise Price.
For purposes of the above calculation, current fair market value of Common
Stock shall mean with respect to each share of Common Stock:
(i) if the exercise is in connection with an initial public offering
of the Company's Common Stock, and if the Company's registration statement
relating to such public offering has been declared effective by the
Securities and Exchange Commission (the "SEC"), then the fair market value
per share shall be the initial "Price to Public" specified in the final
prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with
the Company's initial public offering and:
(a) if traded on a securities exchange, the fair market value
shall be deemed to be the average of the closing prices over a
twenty-one (21) day period ending three days before the day the
current fair market value of the securities is being determined; or
(b) if actively traded over-the-counter, the fair market value
shall be deemed to be the average of the closing bid and asked prices
quoted on the Nasdaq system (or similar system) over the twenty-one
(21) day period ending three days before the day the current fair
market value of the securities is being determined.
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(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the Nasdaq System or the over-the-counter market, the
current fair market value of Common Stock shall be determined in good faith
by the Board of Directors of the Company.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant representing the remaining number of shares
purchasable thereunder. All other terms and conditions of such amended Warrant
shall be identical to those contained herein, including, but not limited to, the
Exercise Period.
5. CERTIFICATES FOR SHARES. Upon the exercise of the
purchase rights evidenced by this Warrant, one or more certificates for the
number of Shares so purchased shall be issued as soon as practicable thereafter.
Upon any partial exercise of this Warrant, the Company will forthwith issue and
deliver to Holder a new warrant or warrants of like tenor as this Warrant for
the remaining portion of the Common Stock for which this Warrant may still be
exercised.
6. ISSUANCE OF SHARES. The Company covenants that (a) the Shares, when
issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully-paid and non-assessable and free from all taxes, liens and charges
with respect to the issuance thereof (except for any applicable transfer taxes,
which shall be paid by Holder) and (b) during the Exercise Period, the Company
will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of Common Stock upon the exercise of this
Warrant.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this Warrant
subdivide its Common Stock, by split or otherwise, or combine its
Common Stock, or issue additional shares of its Common Stock as a
dividend with respect to any shares of its Common Stock, the number of
Shares issuable on the exercise of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or stock
dividend, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the purchase price
payable per share, but the aggregate purchase price payable for the
total number of Shares purchasable under this Warrant (as adjusted)
shall remain the same. Any adjustment under this Section 7(a) shall
become effective as of the record date of such subdivision,
combination or dividend, or in the event that no record date is fixed,
upon the making of such subdivision, combination or dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In case
of any reclassification, capital reorganization, or change in the
Common Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 7(a) above),
then, as a condition of such reclassification, reorganization or
change, lawful provision shall be made, and duly executed documents
evidencing the
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same from the Company or its successor shall be delivered to Holder,
so that Holder shall have the right at any time prior to the
expiration of this Warrant to purchase, at a total price equal to that
payable upon the exercise of this Warrant, the kind and amount of
shares of stock and other securities and property receivable in
connection with such reclassification, reorganization or change by a
holder of the same number of shares of Common Stock as were
purchasable by Holder immediately prior to such reclassification,
reorganization or change. In any such case, appropriate provisions
shall be made with respect to the rights and interest of Holder so
that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be made to the
purchase price per share payable hereunder, provided the aggregate
purchase price shall remain the same.
(c) MERGER AND SALE OF ASSETS. If at any time there shall be a
capital reorganization of the shares of the Company's stock (other
than a combination, reclassification, exchange or subdivision of
shares otherwise provided for herein), or a merger or consolidation of
the Company with or into another corporation, whether or not the
Company is the surviving corporation, or the sale of all or
substantially all of the Company's properties and assets to any other
person (hereinafter referred to as a "Merger Event"), then, as a part
of such Merger Event, lawful provision shall be made so that the
Holder shall thereafter be entitled to receive, upon exercise of the
Warrant, the number of shares of common stock or other securities of
the successor corporation resulting from such Merger Event equivalent
in value to that which would have been issuable if Holder had
exercised this Warrant immediately prior to the Merger Event. In any
such case, appropriate adjustment (as determined in good faith by the
Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interest of
the Holder after the Merger Event to the end that the provisions of
this Warrant (including adjustments of the Exercise Price and number
of shares of Common Stock purchasable) shall be applicable to the
extent possible.
(d) CERTIFICATE OF ADJUSTMENT. When any adjustment is required to
be made in the number or kind of shares purchasable upon exercise of
the Warrant or in the Exercise Price, an officer of the Company shall
promptly compute such adjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Exercise Price
and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed
(by first class mail, postage prepaid) to Holder.
8. COMPLIANCE WITH SECURITIES LAWS. Holder hereby represents and warrants
that:
(a) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant and the
Common Stock issuable upon exercise hereof (collectively, the
"Securities") will be acquired for investment for Holder's own
account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof, and Holder has no present
intention of selling, granting any participation in or otherwise
distributing the same. Holder does not have any contract, undertaking,
agreement or arrangement with any
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person to sell, transfer or grant participation to any person with
respect to any of the Securities. Holder represents that it has full
power and authority to enter into this Warrant.
(b) INVESTMENT EXPERIENCE. Holder acknowledges that it is able to
fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment in
this Warrant. Holder also represents it has not been organized for the
purpose of acquiring this Warrant.
(c) ACCREDITED INVESTOR. Holder is an "accredited investor"
within the meaning of Rule 501 of Regulation D of the Securities and
Exchange Commission (the "SEC"), as presently in effect.
(d) RESTRICTED SECURITIES. Holder understands that the Securities
are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering, and that under such
laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances. In
this connection, Holder represents that it is familiar with SEC Rule
144 promulgated under the Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
9. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, Holder further agrees not to make any
disposition of all or any portion of the Securities unless and until there is
then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement, or (i) Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, (ii) the transferee
Holder shall have agreed in writing to become bound by the restrictions
applicable to the transferor Holder, including without limitation, the
provisions of this Section 9 and Section 17 hereof, and shall make the
representations and warranties set forth in Section 8 hereof in favor of the
Company and (iii) if requested by the Company, Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act.
10. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the fair market value of the Company's Common
Stock as determined in good faith by the Company's Board of Directors.
11. NO SHAREHOLDER RIGHTS. Prior to exercise of this Warrant, Holder shall
not be entitled to any rights of a shareholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
shareholder meetings, and Holder, as such, shall not
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be entitled to any notice or other communication concerning the business or
affairs of the Company, except as set forth in Section 7(d) above.
12. REPLACEMENT OF WARRANT. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and substance to the Company or, in
the case of mutilation, on surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
13. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed given when (i) personally delivered, (ii) three
business days after being sent by prepaid certified or registered U.S. mail, or
one business day after being sent, if sent by nationally recognized overnight
courier via overnight delivery, to the address of the party to be noticed as set
forth herein or such other address as such party last provided to the other by
written notice, or (iii) one business day following receipt of electronic
confirmation, if by facsimile. All notices shall be sent to the addresses and
facsimile numbers set forth below or such other address as may be given from
time to time under the terms of this notice provision with at least ten (10)
days prior written notice:
If to the Company:
Wireless, Inc.
5452 Betsy Ross Drive
Santa Clara, CA 95054
Attention: Chief Financial Officer
If to Holder:
At the address and facsimile number indicated on the signature page
hereof.
14. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall
inure to the benefit of, and be binding upon, the Company, its successors and
assigns and shall inure to the benefit of the Holder's successor's, legal
representatives and permitted assigns; PROVIDED, that nothing in this Section 14
shall be deemed a waiver of any restrictions on assignment or transfer as
provided in Section 9 above.
15. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of each of the parties hereto. Any waiver or amendment effected in
accordance with this section shall be binding upon Holder and the Company.
16. GOVERNING LAW. This Warrant shall be governed by the laws of the State
of California as applied to agreements among California residents made and to be
performed entirely within the State of California.
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17. MARKET STAND-OFF PROVISION. Holder hereby agrees that, for a period of
180 days after the date of the final prospectus relating to any registered
underwritten public offering, it shall not, to the extent requested by the
Company and such underwriter, offer, sell, contract to sell, pledge or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether actual disposition
due to cash settlement or otherwise), directly or indirectly, establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any shares of capital stock
of the Company now owned or hereafter acquired by the Holder or any securities
convertible into, or exercisable for such capital stock.
To enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Company's securities held by Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
18. ENTIRE AGREEMENT. This Warrant and the other documents delivered
pursuant hereto or referred to herein, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof.
19. SEVERABILITY. In case any provision of this Warrant shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
20. COUNTERPARTS. This Warrant may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
21. SURVIVAL. Except as expressly set forth herein, the representations,
warranties, covenants and agreements made herein shall survive the closing of
the transactions contemplated hereby.
22. CONFIDENTIALITY. Holder agrees that, except with the prior written
consent of the Company, Holder shall at all times keep confidential and not
divulge, furnish or make accessible to anyone any confidential information,
knowledge or data concerning or relating to the business or financial affairs of
the Company to which Holder has been or shall become privy. The provisions of
this Section 22 shall be in addition to, and not in substitution for, the
provisions of any separate nondisclosure agreement executed by the parties
hereto.
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IN WITNESS WHEREOF, this Warrant is executed as of the 14th day of February,
2000.
COMPANY:
WIRELESS, INC.
By:------------------------------------------
Name:----------------------------------------
Title:---------------------------------------
HOLDER:
---------------------------------------------
(Print Name of Holder)
---------------------------------------------
(Signature)
Name:----------------------------------------
Title:---------------------------------------
Address:-------------------------------------
---------------------------------------------
Facsimile Number:----------------------------
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EXERCISE NOTICE
Wireless, Inc.
Attention: Chief Financial Officer
1. The undersigned hereby elects to purchase, pursuant
to the provisions of the Warrant to Purchase Shares of Common Stock issued by
Wireless, Inc. and held by the undersigned, the original of which is attached
hereto, _______________ shares of Common Stock of Wireless, Inc. Payment of the
exercise price per share required under such Warrant accompanies this Exercise
Notice.
2. The undersigned hereby represents and warrants that
the undersigned is acquiring such shares for its own account for investment
purposes only, and not for resale or with a view to distribution of such shares
or any part thereof.
HOLDER:
Name:----------------------------------------
Title:---------------------------------------
Date:---------------------------------, 20---
Address:-------------------------------------
---------------------------------------------
Name in which shares should be registered:
---------------------------------------------
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