EXHIBIT 10.43
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") OR ANY STATE SECURITIES
LAWS AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, BY THE HOLDER
EXCEPT UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF ITS
COUNSEL OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY
BE SATISFACTORY TO COUNSEL FOR THE COMPANY, IN EITHER CASE, TO THE
EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT
AND APPLICABLE STATE SECURITIES LAWS.
TOWER TECH, INC.
Common Stock Purchase Warrant
to
Purchase 100,000 Shares
of
Common Stock
This Common Stock Purchase Warrant is issued to:
Taglich Brothers, Inc.
1370 Avenue of the Americas
New York, NY 10019
by TOWER TECH, INC., an Oklahoma corporation (hereinafter called the "Company,"
which term shall include its successors and assigns).
FOR VALUE RECEIVED and subject to the terms and conditions hereinafter
set out, the registered holder of this Warrant as set forth on the books and
records of the Company (the "Holder") is entitled upon surrender of this Warrant
to purchase from the Company 100,000 fully paid and nonassessable shares (the
"Warrant Shares") of Common Stock, par value $.001 per share (the "Common
Stock"), at the Exercise Price (as defined below) per share.
This Warrant shall expire at the close of business on September 14,
2003.
1. (a) The right to purchase shares of Common Stock represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (properly endorsed if required) at the principal office of the
Company at 11935 South I-44 Service, Oklahoma City, Oklahoma 73173 (or such
other office or agency of the Company as it may designate by notice in writing
to the Holder at the address of the Holder appearing on the books of the
Company), and upon payment to the Company, by cash or by certified check or bank
draft, of the Exercise Price for such shares. The Company agrees that the shares
of Common Stock so purchased shall be deemed to be issued to the Holder as the
record owner of such shares of Common Stock as of the close of business on the
date on which this Warrant shall have been surrendered and payment
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made for such shares of Common Stock as aforesaid. Certificates for the shares
of Common Stock so purchased (together with a cash adjustment in lieu of any
fraction of a share) shall be delivered to the Holder within a reasonable time,
not exceeding ten (10) business days, after the rights represented by this
Warrant shall have been so exercised, and, unless this Warrant has expired, a
new Warrant representing the number of shares of Common Stock, if any, with
respect to which this Warrant shall not then have been exercised, in all other
respects identical with this Warrant, shall also be issued and delivered to the
Holder within such time, or, at the request of the Holder, appropriate notation
may be made on this Warrant and the same returned to the Holder.
(b) This Warrant may be exercised to acquire, from and after the
date hereof, the number of shares of Common Stock set forth on the first page
hereof; provided, however, the right hereunder to purchase such shares of Common
Stock shall expire at the close of business on September 14, 2003.
2. This Warrant is being issued by the Company to Taglich Brothers, Inc.
("Taglich Brothers"), or its designee, pursuant to an agreement between the
Company and Taglich Brothers, whereby Taglich Brothers is acting as the
placement agent for the Company's bridge financing in exchange for this issuance
of a three (3) year warrant, exercisable at the Exercise Price per share to
Taglich Brothers or its designee, to purchase the Warrant Shares.
3. In the event that the Company does not deliver an original stock
certificate for the applicable number of Warrant Shares to Taglich Brothers, or
its designee, within ten (10) days after Taglich Brothers exercises this
Warrant, the Company shall issue additional shares of Common Stock (the
"Additional Shares") to Taglich Brothers, or its designee, equal to the product
of ten (10%) percent of the number of Warrant Shares to be issued upon exercise
of this Warrant and the number of seven (7) day periods, or a part thereof,
beyond said ten (10) day period until the certificate representing the Warrant
Shares are delivered to Taglich Brothers, or its designee.
4. The Company covenants and agrees that all Common Stock upon issuance
against payment in full of the Exercise Price by the Holder pursuant to this
Warrant will be validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the rights represented
by this Warrant may be exercised, the Company will have at all times authorized,
and reserved for the purpose of issue or transfer upon exercise of the rights
evidenced by this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant, and will
procure at its sole expense upon each such reservation of shares the listing
thereof (subject to issuance or notice of issuance) on all stock exchanges on
which the Common Stock is then listed or inter-dealer trading systems on which
the Common Stock is then traded. The Company will take all such action as may be
necessary to assure that such shares of Common Stock may be so issued without
violation of any applicable law or regulation, or of any requirements of any
national securities exchange upon which the Common Stock may be listed or
inter-dealer trading system on which the Common Stock is then traded. The
Company will not take any action which would result in any adjustment in the
number of shares of Common Stock purchasable hereunder if the total number of
shares of
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Common Stock issuable pursuant to the terms of this Warrant after such action
upon full exercise of this Warrant and, together with all shares of Common Stock
then outstanding and all shares of Common Stock then issuable upon exercise of
all options and other rights to purchase shares of Common Stock then
outstanding, would exceed the total number of shares of Common Stock then
authorized by the Company's Amended and Restated Articles of Incorporation, as
then amended.
5. The initial exercise price is $0.001 per share of Common Stock (the
"Initial Exercise Price").
The Initial Exercise Price shall be adjusted as provided for below in this
Section 5 (the Initial Exercise Price, and the Initial Exercise Price as
thereafter then adjusted, shall be referred to as the "Exercise Price") and the
Exercise Price from time to time shall be further adjusted as provided for below
in this Section 5. Upon each adjustment of the Exercise Price, the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, at the Exercise
Price resulting from such adjustment, the number of shares of Common Stock
obtained by (i) multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of shares of Common Stock purchasable hereunder
immediately prior to such adjustment, and (ii) dividing the product thereof by
the Exercise Price resulting from such adjustment. The Exercise Price shall be
adjusted as follows:
(i) In the case of any amendment to the Amended and
Restated Articles of Incorporation of the Company to change
the rights, privileges, restrictions or conditions in respect
to the Common Stock or division of the Common Stock, this
Warrant shall be adjusted so as to provide that upon exercise
thereof, the Holder shall receive, in lieu of each Common
Stock theretofore issuable upon such exercise, the kind and
amount of shares, other securities, money and property
receivable upon such, change or division by the Holder
issuable upon such exercise had the exercise occurred
immediately prior to such designation, change or division.
This Warrant shall be deemed thereafter to provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 5.
The provisions of this Subsection 5(i) shall apply in the same
manner to successive reclassifications, changes,
consolidations and mergers.
(ii) If the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of
shares of Common Stock, or declare a dividend or make any
other distribution upon the Common Stock payable in shares of
Common Stock, the Exercise Price in effect immediately prior
to such subdivision or dividend or other distribution shall be
proportionately reduced, and conversely, in case the
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Exercise Price
in effect immediately prior to such combination shall be
proportionately increased.
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(iii) If any capital reorganization or
reclassification of the capital stock of the Company, or any
consolidation or merger of the Company with another
corporation or entity, or the sale of all or substantially all
of the Company's assets to another corporation or other entity
shall be effected in such a way that holders of shares of
Common Stock shall be entitled to receive stocks, securities,
other evidence of equity ownership or assets with respect to
or in exchange for shares of Common Stock, then, as a
condition of such reorganization, reclassification,
consolidation, merger or sale (except as otherwise provided
below in this Section 5), lawful and adequate provisions shall
be made whereby the Holder shall thereafter have the right to
receive upon the basis and upon the terms and conditions
specified herein, such shares of stock, securities, other
evidence of equity ownership or assets as may be issued or
payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of
shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of this Warrant under this
Section 5 had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such
case appropriate provisions shall be made with respect to the
rights and interests of the Holder to the end that the
provisions hereof (including, without limitation, provisions
for adjustments of the Exercise Price and of the number of
shares of Common Stock receivable upon the exercise of this
Warrant) shall thereafter be applicable, as nearly as may be,
in relation to any shares of stock, securities, other evidence
of equity ownership or assets thereafter deliverable upon the
exercise hereof (including an immediate adjustment, by reason
of such consolidation or merger, of the Exercise Price to the
value for the Common Stock reflected by the terms of such
consolidation or merger if the value so reflected is less than
the Exercise Price in effect immediately prior to such
consolidation or merger). Subject to the terms of this
Warrant, in the event of a merger or consolidation of the
Company with or into another corporation or other entity as a
result of which the number of shares of common stock of the
surviving corporation or other entity issuable to holders of
Common Stock of the Company, is greater or lesser than the
number of shares of Common Stock of the Company outstanding
immediately prior to such merger or consolidation, then the
Exercise Price in effect immediately prior to such merger or
consolidation shall be adjusted in the same manner as though
there were a subdivision or combination of the outstanding
shares of Common Stock of the Company. The Company shall not
effect any such consolidation, merger or sale, unless, prior
to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed or delivered to the
Holder, the obligation to deliver to the Holder such shares of
stock, securities, other evidence of equity ownership or
assets as, in accordance with the foregoing provisions, the
Holder may be entitled to receive or otherwise acquire. If a
purchase, tender or exchange offer is made to and accepted by
the holders of more than fifty (50%) percent of the
outstanding shares of Common Stock of the Company, the Company
shall not
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effect any consolidation, merger or sale with the person
having made such offer or with any Affiliate of such person,
unless prior to the consummation of such consolidation, merger
or sale the Holder of this Warrant shall have been given a
reasonable opportunity to then elect to receive upon the
exercise of this Warrant the amount of stock, securities,
other evidence of equity ownership or assets then issuable
with respect to the number of shares of Common Stock of the
Corporation in accordance with such offer.
Whenever the Exercise Price shall be adjusted pursuant to this
Section 5, the Company shall issue a certificate signed by its President or Vice
President and by its Chief Executive Officer, Chief Financial Officer, Assistant
Treasurer, Secretary or Assistant Secretary, setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated (including a description of the
basis on which the Board of Directors of the Company made any determination
hereunder), and the Exercise Price after giving effect to such adjustment, and
shall cause copies of such certificates to be mailed (by first-class mail,
postage prepaid) to the Holder of this Warrant.
No fractional shares of Common Stock shall be issued in
connection with any exercise of this Warrant, but in lieu of such fractional
shares, the Company shall make a cash payment therefor equal in amount to the
product of the applicable fraction multiplied by the Exercise Price then in
effect.
Notwithstanding anything herein to the contrary, in no event
shall the Exercise Price be less than the market or book value of the Common
Stock.
6. In the event the Company grants rights to all shareholders to
purchase Common Stock, the Holder shall have the same rights as if this Warrant
had been exercised immediately prior to such grant.
7. The Holder shall, with respect to the Warrant Shares and Additional
Shares have the "piggy back" registration rights set forth in the Piggy-Back
Registration Rights Agreement dated the date hereof. Such "piggy back"
registration rights are incorporated herein by this reference as if such
provisions had been set forth herein in full.
8. This Warrant need not be changed because of any change in the
Exercise Price or in the number of shares of Common Stock purchased hereunder.
9. The terms defined in this paragraph, whenever used in this Warrant,
shall, unless the context otherwise requires, have the respective meanings
hereinafter specified. The term "Common Stock" shall mean and include the
Company's Common Stock, par value $.001 per share, authorized on the date of the
original issue of this Warrant and shall also include in case of any
reorganization, reclassification, consolidation, merger or sale of assets of the
character referred to in paragraph 4 hereof, the stock, securities or assets
provided for in such paragraph. The term "Company" shall also include any
successor corporation to Tower Tech, Inc. by merger, consolidation or otherwise.
The term "outstanding" when used with reference to Common Stock shall mean at
any date as of which the number of shares thereof is to be
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determined, all issued shares of Common Stock, except shares then owned or held
by or for the account of the Company. The term "1933 Act" shall mean the
Securities Act of 1933, as amended, or any similar Federal statute, and the
rules and regulations of the Securities and Exchange Commission, or any other
Federal agency then administering such securities act, thereunder, all as the
same shall be in effect at the time.
10. This Warrant is exchangeable, upon the surrender hereby by the
Holder at the office or agency of the Company, for new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares of Common Stock as shall be designated by the Holder at
the time of such surrender. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant or any such new
Warrants and, in the case of any such loss, theft, or destruction, upon delivery
of a bond of indemnity, reasonably satisfactory to the Company, or, in the case
of any such mutilation, upon surrender or cancellation of this Warrant or such
new Warrants, the Company will issue to the Holder a new Warrant of like tenor,
in lieu of this Warrant or such new Warrants, representing the right to
subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder.
11. The Company agrees to use its best efforts to file timely all
reports required to be filed by it pursuant to Sections 13 or 15 of the
Securities Exchange Act of 1934, as amended, and to provide such information as
will permit the Holder to sell this Warrant or any shares of Common Stock
acquired upon exercise of this Warrant in accordance with Rule 144 under the
1933 Act.
12. The Company will at no time close its transfer books against the
transfer of this Warrant or of any shares of Common Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a stockholder of the Company. The rights and
obligations of the Company, of the Holder, and of any holder of shares of Common
Stock issuable hereunder, shall survive the exercise of this Warrant.
13. This Warrant sets forth the entire agreement of the Company and the
Holder, with respect to the rights of the Holder and the Common Stock issuable
upon the exercise of this Warrant, notwithstanding any other agreement or the
provisions of any agreement, whether or not known to the Holder, and the Company
represents that there are no agreements inconsistent with the terms hereof or
which purport in any way to bind the Holder of this Warrant or the Common Stock.
14. The validity, interpretation and performance of this Warrant and
each of its terms and provisions shall be governed by the laws of the State of
New York.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal and dated as of September
15, 2000.
TOWER TECH, INC.
By: /s/ Robert C. Brink
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Name: Robert C. Brink
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Title: President
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[CORPORATE SEAL]
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