THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
SECURITIES LAWS. THIS WARRANT AND THE WARRANT SHARES ISSUABLE UPON EXERCISE OF
THIS WARRANT MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR PURSUANT TO AN EXEMPTION THEREFROM UNDER THE ACT AND SUCH
LAWS, SUPPORTED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY
AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. THIS WARRANT AND THE
COMPANY'S SUBSCRIPTION AGREEMENT WITH THE HOLDER SET FORTH THE COMPANY'S
OBLIGATIONS TO REGISTER FOR RESALE THIS WARRANT AND THE WARRANT SHARES. A COPY
OF SUCH SUBSCRIPTION AGREEMENT IS AVAILABLE FOR INSPECTION AT THE COMPANY'S
OFFICE.
THIS WARRANT MAY NOT, IN ANY EVENT, BE TRANSFERRED TO ANY PERSON OR ENTITY THAT
IS NOT AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501, PROMULGATED UNDER
THE ACT.
For the Purchase of
shares
No. -
REDEEMABLE COMMON STOCK PURCHASE WARRANT
FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
TII INDUSTRIES, INC.
TII Industries, Inc., a Delaware corporation ("Company"),
hereby certifies that, for value received,, or his, her or its registered
assigns ("Registered Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, at any time or from time to time during the
period commencing on December 9, 2000 ( "Commencement Date") and ending on
December 8, 2004, ("Initial Number") shares of common stock, $.01 par value, of
the Company ("Common Stock"), at an initial exercise price of $2.79. This
Warrant is one of a series of Warrants of even date herewith. The number of
shares of Common Stock purchasable upon exercise of this Warrant, and the
exercise price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Exercise Price," respectively.
1. Exercise.
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(a) This Warrant may be exercised by the Registered Holder, in
whole or in part, by the surrender of this Warrant (with the Notice of Exercise
Form attached hereto duly executed by such Registered Holder) at the principal
office of the Company, or at such other office or agency as the Company may
designate, accompanied by payment in full, in lawful money of the United States,
of an amount equal to the then applicable Exercise Price multiplied by the
number of Warrant Shares then being purchased upon such exercise.
<PAGE>
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above. At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(c) below shall be deemed to have become the holder or holders of
record of the Warrant Shares represented by such certificates.
(1) Within three (3) business days after the exercise of the
purchase right represented by this Warrant, the Company at its expense will use
its best efforts to cause to be issued in the name of, and delivered to, the
Registered Holder, or, subject to the terms and conditions hereof, to such other
individual or entity as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(1) a certificate or certificates for the number of full
shares of Warrant Shares to which such Registered Holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such Registered
Holder would otherwise be entitled, cash in an amount determined pursuant to
Section 3 hereof, and
(2) in case such exercise is in part only, a new Warrant or
Warrants (dated the date hereof) of like tenor, stating on the face or faces
thereof the number of shares currently stated on the face of this Warrant minus
the number of such shares purchased by the Registered Holder upon such exercise
as provided in subsection 1(a) above (prior to any adjustments made thereto
pursuant to the provisions of this Warrant).
2. Adjustments.
-----------
(1) Split, Subdivision or Combination of Shares. At any time
after June 8, 2000 and until this Warrant is exercised or redeemed or expires by
its terms, if the outstanding shares of the Company's Common Stock shall be
subdivided or split into a greater number of shares or a dividend in Common
Stock shall be paid in respect of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall, simultaneously with the effectiveness of such subdivision or split or
immediately after the record date of such dividend (as the case may be), be
proportionately decreased. If the outstanding shares of Common Stock shall be
combined or reverse-split into a smaller number of shares, the Exercise Price in
effect immediately prior to such combination or reverse split shall,
simultaneously with the effectiveness of such combination or reverse split, be
proportionately increased. When any adjustment is required to be made in the
Exercise Price, the number of Warrant Shares purchasable upon the exercise of
this Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Exercise Price in effect
immediately prior to such adjustment, by (ii) the Exercise Price in effect
immediately after such adjustment.
(2) Reclassification, Reorganization, Consolidation or Merger.
At any time after June 8, 2000 and until this Warrant is exercised or redeemed
or expires by its terms, if there is any reclassification of the Common Stock
(other than a change in par value or a subdivision or combination as provided
for in subsection 2(a) above), or any reorganization, consolidation or merger of
the Company with or into another entity (other than a merger or reorganization
with respect to which the Company is the continuing corporation and that does
not result in any reclassification of the Common Stock), or a transfer of all or
substantially all of the assets of the Company, or the payment of a liquidating
distribution, then, as part of any such reorganization, reclassification,
consolidation, merger, sale or liquidating distribution, lawful
2
<PAGE>
provision shall be made so that the Registered Holder of this Warrant shall have
the right thereafter to receive upon the exercise hereof (to the extent, if any,
still exercisable) the kind and amount of shares of stock or other securities or
property that such Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification, consolidation,
merger, sale or liquidating distribution, as the case may be, such Registered
Holder had held the number of shares of Common Stock that were then purchasable
upon the exercise of this Warrant, provided, that, in the case of any such
liquidating distribution, the value of such property (as reasonably determined
by the Company's Board of Directors) exceeds the Exercise Price. In any such
case, appropriate adjustment (as reasonably determined by the Board of Directors
of the Company) shall be made in the application of the provisions set forth
herein with respect to the rights and interests thereafter of the Registered
Holder of this Warrant such that the provisions set forth in this Section 2
(including provisions with respect to the Exercise Price) shall thereafter be
applicable, as nearly as is reasonably practicable, in relation to any shares of
stock or other securities or property thereafter deliverable upon the exercise
of this Warrant.
(3) Price Adjustment. No adjustment in the per share Exercise
Price shall be required unless such adjustment would require an increase or
decrease in the Exercise Price by at least $0.01; provided, however, that any
adjustments that by reason of this subsection are not required to be made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 2 shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
(4) Price Reduction. Notwithstanding any other provision set
forth in this Warrant, at any time and from time to time during the period that
this Warrant is exercisable, the Company in it sole discretion may reduce the
Exercise Price or extend the period during which this Warrant is exercisable.
(5) No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 2 and in the taking of all such actions as may be necessary or
appropriate in order to protect against impairment of the rights of the
Registered Holder of this Warrant to adjustments in the Exercise Price.
(6) Notice of Adjustment. Upon the happening of any event
requiring an adjustment of the Exercise Price hereunder, the Company shall
forthwith give written notice thereof to the Registered Holder of this Warrant
stating the adjusted Exercise Price and the adjusted number of Warrant Shares
resulting from such event and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
3. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall make an
adjustment thereof in cash on the basis of the Closing Price (as defined in
Section 4) of the Company's Common Stock on the trading day immediately prior to
the date of exercise, applicable, or if there is no Closing Price, then on the
basis of the then fair market value of the Company's Common Stock as shall be
reasonably determined by the Board of Directors of the Company.
4. Redemption. Beginning on June 8, 2001 this Warrant may be redeemed
by the Company, upon not less than 20 days' prior written notice to the holder,
at the redemption price
3
<PAGE>
of $.01 per share for every share of Common Stock purchasable upon exercise
hereof at the time of such redemption (the "Redemption Price"), if the closing
bid price of the Common Stock has been equal to or greater than 200% of the then
Exercise Price on each of the 10 consecutive trading days ending on the third
day prior to the day on which notice of redemption is given to the Registered
Holder; provided, however, that this Warrant may be redeemed only if, on the
first day of the aforementioned 10 consecutive trading days and thereafter at
all times up to and including the date on which notice is given and the
subsequent date fixed for redemption, (i) this Warrant is exercisable into
shares of Common Stock registered for resale under the Securities Act pursuant
to an effective and current registration statement, and (ii) the Common Stock
subject to this Warrant is then listed on a national securities exchange, the
Nasdaq National Market or the Nasdaq SmallCap Market or quoted on the OTC
Bulletin Board or similar electronic trading facility. For purposes of this
Section 4, "closing bid price" shall mean the closing bid price of the Common
Stock as officially reported by the principal securities exchange on which the
Common Stock is listed or admitted to trading, or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or if any such
exchange on which the Common Stock is listed is not its principal trading
market, the closing bid price as furnished by the NASD through the Nasdaq
National Market or the Nasdaq SmallCap Market, or, if applicable, the OTC
Bulletin Board or similar electronic facility. This Warrant may not be redeemed
unless each and every condition set forth in this Section 4 is satisfied. On and
after the date of redemption the holder shall have only the right to receive
$.01 per share of Common Stock purchasable upon exercise hereof at the time of
such redemption.
5. Limitation on Sales. Each holder of this Warrant acknowledges that
this Warrant and the Warrant Shares have not been registered under the
Securities Act of 1933, as amended ("Act"), as of the date of issuance hereof
and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant, or any Warrant Shares issued upon its
exercise, in the absence of (i) an effective registration statement under the
Act as to this Warrant or such Warrant Shares, as the case may be, and
registration or qualification of this Warrant or such Warrant Shares, as the
case may be, under any applicable Blue Sky or state securities law then in
effect or (ii) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
In addition, this Warrant may only be transferred to a
transferee who certifies in writing to the Registered Holder and to the Company
that such transferee is an "accredited investor" within the meaning of Rule
501(a) promulgated by the Securities and Exchange Commission under the Act.
Without limiting the generality of the foregoing, unless the
offering and sale of the Warrant Shares to be issued upon the particular
exercise of the Warrant shall have been effectively registered under the Act,
the Company shall be under no obligation to issue the shares covered by such
exercise unless and until the Registered Holder shall have executed an
investment letter in form and substance satisfactory to the Company, including a
warranty at the time of such exercise that it is then an "accredited investor"
within the meaning of Rule 501(c) promulgated by the Securities and Exchange
Commission under the Act, is acquiring such shares for its own account, and will
not transfer the Warrant Shares unless pursuant to an effective and current
registration statement under the Act or an exemption from the registration
requirements of the Act and any other applicable restrictions, in which event
the Registered Holder shall be bound by the provisions of a legend or legends to
such effect that shall be endorsed upon the certificate(s) representing the
Warrant Shares issued pursuant to such exercise. In such event, the Warrant
Shares issued upon exercise hereof shall be imprinted with a legend in
substantially the following form:
4
<PAGE>
This security has been acquired for investment and has not
been registered under the Securities Act of 1933, as amended,
or applicable state securities laws. This security may not be
sold, pledged or otherwise transferred in the absence of such
registration or pursuant to an exemption therefrom under said
Act and such laws, supported by an opinion of counsel,
reasonably satisfactory to the Company and its counsel, that
such registration is not required.
6. Registration Rights of Warrant Holder. The Company has agreed to
register this Warrant and the Warrant Shares for resale in accordance with the
Subscription Agreement and Investor Information Statement entered into between
the Company and the Registered Holder.
7. Warrant Solicitation and Warrant Solicitation Fee.
(1) The Company has engaged M.H. Meyerson & Co., Inc.
("Meyerson"), on a non-exclusive basis, as its agent for the solicitation of the
exercise of the Warrants. The Company, at its cost, will (i) assist Meyerson
with respect to such solicitation, if requested by Meyerson and (ii) provide
Meyerson lists of the Registered Holders, and, to the extent known, beneficial
owners of the Company's Warrants. In addition to the conditions set forth in
Section 7(b) herein below, Meyerson shall accept payment of the warrant
solicitation fee provided in Section 7(b) only if it has provided bona fide
services in connection with the exercise of the Warrants. In addition to
soliciting, either orally or in writing, the exercise of Warrants by a Warrant
holder, such services may also include disseminating information, either orally
or in writing, to Warrant holders about the Company or the market for the
Company's securities, or assisting in the processing of the exercise of
Warrants.
(2) If, upon the exercise of any Warrant (other than Warrants
issued by the Company upon exercise of the Purchase Options issued by the
Company to Meyerson and/or its designees in connection with the original
offering), (i) the market price of the Common Stock is greater than the Exercise
Price, (ii) disclosure of compensation arrangements was made both at the time of
the original offering and at the time of exercise, (iii) the exercise of the
Warrant was solicited by Meyerson, (iv) the Warrant was not held in a
discretionary account, and (v) the solicitation of the exercise of the Warrant
was not in violation of Regulation M (as such rule or any successor rule may be
in effect as of such time of exercise) promulgated under the Securities Exchange
Act of 1934, as amended, then the Company shall pay from the proceeds received
upon exercise of the Warrant(s), a fee of 4% of the Exercise Price to Meyerson,
provided that Meyerson delivers to the Company a certificate that the conditions
set forth in the preceding clauses (ii), (iii), (iv) and (v) have been
satisfied.
8. Notices of Record Date. In case:
(1) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of any class or any other securities, or to receive
any other right, or
(2) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets of the Company, or
5
<PAGE>
(3) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company, then, and in each such case, the Company will mail
or cause to be mailed to the Registered Holder of this Warrant a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
fifteen (15) days prior to the record date or effective date for the event
specified in such notice, provided that the failure to mail such notice shall
not affect the legality or validity of any such action.
9. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such Warrant Shares and other stock, securities and property, as from time to
time shall be issuable upon the exercise of this Warrant.
10. Replacement of Warrants. Upon 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) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
11. Transfers, etc.
(1) The Company (or an agent of the Company) will maintain a
register containing the names and addresses of the Registered Holders of this
Warrant. Any Registered Holder may change its, his or her address as shown on
the warrant register by written notice to the Company requesting such change.
(2) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
12. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
13. Successors. The rights and obligations of the parties to this
Warrant will inure to the benefit of and be binding upon the parties hereto and
their respective heirs, successors, assigns, pledgees, transferees and
purchasers. Without limiting the foregoing, the registration rights referred to
in Section 6 of this Warrant shall inure to the benefit of the Registered Holder
and all the Registered Holder's successors, heirs, pledgees, assignees,
transferees and purchasers of this Warrant and the Warrant Shares.
6
<PAGE>
14. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against whom enforcement of
the change or waiver is sought.
15. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
16. Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York as such laws are applied to
contracts made and to be fully performed entirely within that state between
residents of that state except to the extent the laws of the State of Delaware
mandatorily apply because the Company is incorporated in the State of Delaware.
17. Jurisdiction and Venue. The Company (i) agrees that any legal suit,
action or proceeding arising out of or relating to this Warrant shall be
instituted exclusively in New York State Supreme Court, County of New York or in
the United States District Court for the Southern District of New York, (ii)
waives any objection to the venue of any such suit, action or proceeding and the
right to assert that such forum is not a convenient forum, and (iii) irrevocably
consents to the jurisdiction of the New York State Supreme Court, County of New
York, and the United States District Court for the Southern District of New York
in any such suit, action or proceeding, and the Company further agrees to accept
and acknowledge service or any and all process that may be served in any such
suit, action or proceeding in New York State Supreme Court, County of New York
or in the United States District Court for the Southern District of New York in
person or by certified mail addressed as provided in the following Section.
18. Mailing of Notices, etc. All notices and other communications under
this Warrant (except payment) shall be in writing and shall be sufficiently
given if delivered to the addressees in person, by Federal Express or similar
overnight courier service, or if mailed, postage prepaid, by certified mail,
return receipt requested, as follows:
Registered Holder: To his or her last known address as indicated
on the Company's books and records.
The Company TII Industries, Inc.
1385 Akron Street
Copiague, NY 11726
Attn: Chief Financial Officer
Fax: (631) 789-2228
In either case, with a copy to: Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
Attn: David Alan Miller, Esq.
Fax: (212) 818-8881
7
<PAGE>
or to such other address as any of them, by notice to the others, may designate
from time to time. Notice shall be deemed given (a) when personally delivered,
(b) the scheduled delivery date if sent by Federal Express or other overnight
courier service or (c) the fifth day after sent by certified mail.
TII INDUSTRIES, INC.
By:
------------------------------------
Paul G. Sebetic
Vice President - Finance
8
<PAGE>
NOTICE OF EXERCISE
To Be Executed by the Registered Holder
In Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to exercise
______ Warrants represented by this Warrant, and to purchase the shares of
Common Stock issuable upon the exercise of such Warrants, and requests that
certificates for such shares of Common Stock shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
[ ]
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(please print or type name and address)
and be delivered to
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(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced b this
Warrant Certificate, that a new Warrant Certificate for the balance of such
Warrants be registered in the name of, and delivered to, the Registered Holder
at the address stated below.
Dated:_____________
(Signature of Registered Holder)
--------------------------------------
(Address)
(Taxpayer Identification Number)
--------------------------------------
Signature Guaranteed
9
<PAGE>
ASSIGNMENT FORM
To be executed by the Registered Holder
In order to Assign Warrants
FOR VALUE RECEIVED,____________________________________ hereby sell, assigns and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
[ ]
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(please print or type name and address)
______________________ of the Warrants represented by this Warrant, and hereby
irrevocably constitutes and appoints ________________________ Attorney to
transfer this Warrant on the books of the Company, with full power of
substitution in the premises.
Dated:________________ X__________________________________
(Signature of Registered Holder)
-----------------------------------
(Signature Guaranteed)
THE SIGNATURE ON THE ASSIGNMENT OR THE PURCHASE FORM MUST CORRESPOND TO THE NAME
AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR
MIDWEST STOCK EXCHANGE.
CERTIFICATION OF STATUS OF TRANSFEREE
TO BE EXECUTED BY THE TRANSFEREE OF THIS WARRANT
The undersigned transferee hereby certifies to the registered Holder and
to TII Industries, Inc. that the transferee is an "accredited investor" within
the meaning of Rule 501 of Regulation D promulgated under the Securities Act of
1933, as amended.
Dated:________________ X__________________________________
(Signature of Transferee)
