EXHIBIT 4.3
WARRANT
TO PURCHASE SHARES OF SERIES C PREFERRED STOCK
OF
PC-TEL, INC.
A Delaware Corporation
THIS WARRANT HAS BEEN, AND THE SHARES OF SERIES C PREFERRED STOCK WHICH MAY BE
PURCHASED PURSUANT TO THE EXERCISE OF THIS WARRANT (THE "WARRANT SHARES") WILL
BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN
CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT OR THE WARRANT
SHARES (TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF ANY APPLICABLE
STATE SECURITIES LAWS.
Warrant No.: C-2 Issuance Date: December 31, 1998
THIS CERTIFIES THAT, for value received, PFF Bank and Trust, Inc., a California
corporation (the "Holder") is entitled to subscribe for a purchase from PC-Tel,
Inc., a Delaware Corporation (the "Company"), 10,000 fully paid and
nonassessable shares (as adjusted pursuant to Section 2 hereof) (the "Warrant
Shares") of Series C Preferred Stock of the Company ("Series C Preferred Stock")
at the purchase price of $8.00 per share (as adjusted pursuant to Section 2
hereof) (the "Exercise Price"), upon the terms and subject to the conditions
hereinafter set forth:
1. EXERCISE RIGHTS.
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(a) Cash Exercise. The purchase rights represented by this Warrant
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may be exercised by the Holder at any time and from time to time during the term
hereof, in whole or in part, by delivery to the principal offices of the Company
of this Warrant and a completed and duly executed Notice of Cash Exercise, in
the form attached as Exhibit A hereto, accompanied by payment to the Company of
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an amount equal to the Exercise Price then in effect multiplied by the number of
Warrant Shares to be purchased by the Holder in connection with such cash
exercise of this Warrant, which amount may be paid, at the election of the
Holder, by wire transfer or delivery of a certified check payable to the order
of the Company.
(b) Net Issue Exercise.
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(i) In lieu of exercising the purchase rights represented by
this Warrant on a cash basis pursuant to Section 1(a) hereof, the Holder may
elect to exercise such rights represented
by this Warrant at any time and from time to time during the term hereof, in
whole or in part, on a net-issue basis by electing to receive the number of
Warrant Shares which are equal in value to the value of this Warrant (or any
portion thereof to be canceled in connection with such net-issue exercise) at
the time of any such net-issue exercise, by delivery to the principal offices of
the Company of this Warrant and a completed and duly executed Notice of Net-
Issue Exercise, in the form attached as Exhibit B hereto, properly marked to
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indicate (A) the number of Warrant Shares to be delivered to the Holder in
connection with such net-issue exercise, (B) the number of Warrant Shares with
respect to which the Warrant is being surrendered in payment of the aggregate
Exercise Price for the Warrant Shares to be delivered to the Holder in
connection with such net-issue exercise, and (C) the number of Warrant Shares
which remain subject to the Warrant after such net-issue exercise, if any (each
as determined in accordance with Section 1(b)(ii) hereof).
(ii) In the event that the Holder shall elect to exercise the
rights represented by this Warrant in whole or in part on a net-issue basis
pursuant to this Section 1(b) the Company shall issue to the Holder the number
of Warrant Shares determined in accordance with the following formula:
X = Y (A-B)
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A
X = the number of Warrant Shares to be issued to the Holder in
connection with such net-issue exercise.
Y = the number of Warrant Shares subject to this Warrant.
A = the Fair Market Value of one share of Series C Preferred
Stock.
B = the Exercise Price in effect as of the date of such net-issue
exercise (as adjusted pursuant to Section 2 hereof)
(c) Fair Market Value. For purposes of this Section 1, the "Fair
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Market Value" of the Series C Preferred Stock shall have the following meanings:
(i) If the Series C Preferred Stock is not listed for trading
on a national securities exchange or admitted for trading on a national market
system, then the Fair Market Value of Series C Preferred Stock shall be deemed
to be the fair market value of Series C Preferred Stock as determined in good
faith from time to time by the Board of Directors of the Company (the "Board of
Directors"), and receipt and acknowledgement of this Warrant by the Holder shall
be deemed to be an acknowledgement and acceptance of any such determination of
the fair market value of Series C Preferred Stock by the Board of Directors as
the final and binding determination of such fair market value of purposes of
this Warrant.
(ii) If the Series C Preferred Stock is listed for trading on a
national securities exchange or admitted for trading on a national market
system, then the Fair Market Value of Series C Preferred Stock shall be deemed
to be the closing price quoted on the principal securities
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exchange on which the Series C Preferred Stock is listed for trading, or if not
so listed, the average of the closing bid and asked prices for Series C
Preferred Stock quoted on the national market system on which Series C Preferred
Stock is admitted for trading, each as published in the Western Edition of The
Wall Street Journal, in each case for the ten (10) trading days prior to the
date of determination of Fair Market Value for Series C Preferred Stock in
accordance herewith.
(d) Additional Conditions to Exercise of Warrant. Unless there is a
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registration statement declared or ordered effective by the Securities and
Exchange Commission (the "Commission") under the Securities Act which includes
the Warrant Shares to be issued upon the exercise of the rights represented by
this Warrant, such rights may not be exercised unless and until:
(i) the Company shall have received an Investment
Representation Statement in the form attached as Exhibit C hereto, certifying
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that, among other things, the Warrant Shares to be issued upon the exercise of
the rights represented by this Warrant are being acquired for investment and not
with a view to any sale or distribution thereof;
(ii) each certificate evidencing the Warrant Shares to be issued
upon the exercise of the rights represented by this Warrant shall be stamped or
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED
UNDER THE SECURITIES ACT. SUCH SECURITIES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISTRIBUTED EXCEPT (i)
PURSUANT TO A REGISTRATION STATEMENT DECLARED OR ORDERED EFFECTIVE BY
THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT
COVERING SUCH SECURITIES, OR (ii) IN COMPLIANCE WITH RULE 144, OR
(iii) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF
SUCH SECURITIES THAT SUCH REGISTRATION OR RULE 144 COMPLIANCE IS NOT
REQUIRED UNDER THE SECURITIES ACT AS TO SUCH SALE, OFFER OF SALE,
PLEDGE, HYPOTHECATION OR OTHER DISTRIBUTION. THIS CERTIFICATE MUST BE
SURRENDERED TO THE ISSUER HEREOF OR ITS TRANSFER AGENT AS A CONDITION
PRECEDENT TO THE TRANSFER OF ANY INTEREST IN THE SECURITIES
REPRESENTED HEREBY.
(e) Fractional Shares. Upon the exercise of the rights represented by
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this Warrant, the Company shall not be obligated to issue fractional shares of
Series C Preferred Stock, and in lieu thereof, the Company shall pay to the
Holder an amount in cash equal to the Fair Market
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Value per share of Series C Preferred Stock immediately prior to such exercise
multiplied by such fraction (rounded to the nearest cent).
(f) Record Ownership of Warrant Shares. The Warrant Shares shall be
----------------------------------
deemed to have been issued, and the person in whose name any certificate
representing Warrant Shares shall be issuable upon the exercise of the rights
represented by this Warrant (as indicated in the appropriate Notice of Exercise)
shall be deemed to have become the holder of record of (and shall be treated for
all purposes as the record holder of) the Warrant Shares represented thereby,
immediately prior to the close of business on the date or dates upon which the
rights represented by this Warrant are exercised in accordance with the terms
hereof.
(g) Stock Certificates. In the event of any exercise of the rights
------------------
represented by this Warrant, certificates for the Warrant Shares so purchased
pursuant hereto shall be delivered to the Holder within a reasonable time and,
unless this Warrant has been fully exercised or has expired, a new Warrant
representing the Warrant Shares with respect to which this Warrant shall not
have been exercised shall also be issued to the Holder within such time.
(h) Issue Taxes. The issuance of certificates for shares of Series C
-----------
Preferred Stock upon the exercise of the rights represented by this Warrant
shall be made without charge to the Holder for any issuance tax in respect
thereof, provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the Holder of the
Warrant.
2. ADJUSTMENT RIGHTS.
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(a) Right to Adjustment. The number of Warrant Shares purchasable
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upon the exercise of the rights represented by this Warrant, and the Exercise
Price therefor, shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(i) Reclassifications. In the event of a reclassification of
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the Series C Preferred Stock other than by stock split, subdivision,
consolidation or combination thereof, the Company shall execute a new Warrant,
the terms of which provide that the holder of this Warrant shall have the right
to exercise the rights represented by such new Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification by a holder of an equivalent number of shares of Series C
Preferred Stock. Such new Warrant shall provide for adjustments which are as
equivalent as practicable to the adjustments provided for in this Section 2. The
provisions of this Section 2(a)(i) shall apply with equal force and effect to
all successive reclassifications of the Series C Preferred Stock.
(ii) Stock Splits, Dividends, Combinations and Consolidations.
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In the event of a stock split, stock dividend or subdivision of or in respect of
the outstanding shares of Series C Preferred Stock, the number of Warrant Shares
issuable upon the exercise of the rights represented by this Warrant immediately
prior to such stock split, stock dividend or subdivision shall be
proportionately increased and the Exercise Price then in effect shall be
proportionately decreased, effective at the close of business on the date of
such stock split, stock dividend or subdivision, as the
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case may be. In the event of a reverse stock split, consolidation, combination
or other similar event of or in respect of the outstanding shares of Series C
Preferred Stock, the number of Warrant Shares issuable upon the exercise of the
rights represented by this Warrant immediately prior to such reverse stock
split, consolidation, combination or other similar event shall be
proportionately decreased and the Exercise Price shall be proportionately
increased, effective at the close of business on the date of such reverse stock
split, consolidation, combination or other similar event, as the case may be.
(iii) Mergers and Consolidations; Sales of Assets or Stock. In
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the event of a merger or consolidation of the Company with or into another
corporation, limited liability company, general or limited partnership, joint
venture, association or other legal entity (other than (A) a merger or
consolidation pursuant to which the Company is the surviving corporation and the
shareholders of the Company immediately preceding such merger or consolidation
continue to own at least fifty percent (50%) of the capital stock of the Company
entitled to vote following the closing of such merger or consolidation and which
does not result in any reclassification of the Warrant Shares issuable upon the
exercise of the rights represented by this Warrant, or (B) the sale of all or
substantially all of the assets or capital stock of the Company, the Company, or
any successor corporation or other legal entity, as the case may be, shall
execute a new Warrant, the terms of which provide that the holder of this
Warrant shall have the right to exercise the rights represented by such new
Warrant, and procure upon such exercise and payment of the same aggregate
Exercise Price then in effect, in lieu of the shares of Series C Preferred Stock
theretofore issuable upon exercise of the rights represented by this Warrant,
the kind and amount of shares of stock, other securities, money and property
receivable upon such merger, consolidation or sale of assets or capital stock by
a holder of an equivalent number of shares of Series C Preferred Stock. Such new
Warrant shall provide for adjustments which are as equivalent as practicable to
the adjustments provided for in this Section 2. The provisions of this Section
2(a)(iii) shall apply with equal force and effect to all successive mergers,
consolidations and sales of assets and capital stock of the Series C Preferred
Stock.
(b) Adjustment Notices. Upon any adjustment of the Exercise Price,
------------------
and any increase or decrease in the number of Warrant Shares subject to this
Warrant, in accordance with this Section 2, the Company, within sixty (60) days
thereafter, shall give written notice thereof to the Holder at the address of
such Holder as shown on the books of the Company, which notice shall state the
Exercise price as adjusted and, if applicable, the increased or decreased number
of Warrant Shares subject to this Warrant, setting forth in reasonable detail
the method of calculation of each such adjustment.
3. TRANSFER OF WARRANT.
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(a) This Warrant and the rights represented hereby are not
transferable, except accordance with the conditions set forth in Section 3. In
order to effect any transfer of all or a portion of this Warrant or the Warrant
Shares, the Holder hereof shall deliver to the Company a completed and duly
executed Notice of Transfer, in the form attached as Exhibit D hereto.
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(b) Additional Conditions to Transfer of Warrant. Unless there is a
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registration statement declared or ordered effective by the commission under the
Securities Act which includes this Warrant, the Warrant may not be transferred
unless and until:
(i) the Company shall have received an Investment
Representation Statement, in the form attached as Exhibit E hereto, certifying
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that, among other things, this Warrant is being acquired for investment and not
with a view to any sale or distribution thereof, and
(ii) the Company shall have received a written notice from the
Holder which describes the manner and circumstances of the proposed transfer
accompanied by a written opinion of Holder's legal counsel, in form and
substance reasonably satisfactory to the Company, stating that such transfer is
exempt from the registration and prospectus delivery requirements of the
Securities Act and all applicable state securities laws.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
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represents and warrants to the Holder as follows:
(a) This Warrant has been duly authorized and validly executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its terms.
(b) The Warrant Shares have been duly and validly authorized and
reserved for issuance by the Company upon the exercise of the rights represented
by this Warrant and, when issued upon the exercise of such rights in accordance
with the terms and conditions hereof, the Warrant Shares will be (A) duly
authorized and validly issued, fully paid and nonassessable shares of Series C
Preferred Stock, (B) free from all preemptive rights, rights of first refusal or
first offer, taxes, liens, charges or other encumbrances with respect to the
issuance thereof by the Company, and (C) free of any restrictions on the
transfer thereof other than restrictions on transfer under applicable federal
and state securities laws. At all times during the term hereof, the Company
shall have authorized and reserved for issuance a sufficient number of shares of
Series C Preferred Stock to provide for the exercise of the rights represented
by this Warrant.
(c) The due execution and delivery of this Warrant are not, and the
issuance of the Warrant Shares upon the exercise of the rights represented by
this Warrant in accordance with the terms hereof will not, conflict with the
Articles of Incorporation or Bylaws of the Company, each as amended to the date
of issuance hereof.
5. REPRESENTATION AND WARRANTIES OF THE HOLDER. The Holder hereby
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represents and warrants to the Company as follows:
(a) This Warrant is being acquired for such Holder's own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities
Act. Upon the exercise of the rights represented by this Warrant, the Holder
shall, if so requested by the Company, confirm in writing, in a form reasonably
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satisfactory to the Company, that the Warrant Shares issuable upon the exercise
of such rights are being acquired for investment and not with a view toward
distribution or resale thereof.
(b) The Holder understands that the Warrant and the Warrant Shares
have not been registered under the Securities Act by reason of their issuance in
a transaction exempt from the registration and prospectus delivery requirements
of the Securities Act pursuant to Section 4(2) thereof, and that such Warrant
and the Warrant Shares, as the case may be, must be held by the Holder
indefinitely, and therefore, that the Holder must bear the economic risk of such
investment, unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration requirements. The Holder
further understands that the Warrant Shares have not been qualified under the
California Securities Law of 1968 (the "California Law") by reason of their
issuance in a transaction exempt from the qualification requirements of the
California Law pursuant to Section 25102(f) thereof, which exemption depends
upon, among other things, the bona fide nature of such Holder's investment
intent expressed herein.
(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of this Warrant and the Warrant Shares and of protecting its interests
in connection therewith.
(d) The Holder is able to bear the economic risk of the purchase of
the Warrant Shares pursuant to the terms of this Warrant.
6. NO SHAREHOLDER RIGHTS. The Holder of this Warrant (and any transferee
---------------------
hereof) shall not be entitled to vote on matters submitted for the approval of
consent of the shareholders of the Company or to receive dividends declared on
or in respect of shares of Series C Preferred Stock, or otherwise be deemed to
be the holder of Series C Preferred Stock or any other capital stock or other
securities of the Company which may at any time be issuable upon the exercise of
the rights represented hereby for any purpose, nor shall anything contained
herein be construed to confer upon the Holder (or any transferee hereof) any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted for the approval or consent of the
shareholders, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, merger
or consolidation, conveyance, or otherwise) or to receive notice of meetings, or
to receive dividends or subscription rights or otherwise until this Warrant
shall have been exercised and the Warrant Shares issuable upon the exercise of
the rights represented hereby shall have become deliverable as provided herein.
7. INVESTOR RIGHTS. Subject to the requisite approval from the holders of
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Series B Preferred Stock and the Series C Preferred Stock, the Company agrees to
grant the Holder those rights as set forth in the Amended and Restated Rights
Agreement, dated December 31, 1997.
8. EXPIRATION OF WARRANT. This Warrant shall expire, and the rights
---------------------
represented hereby may no longer be exercised on the close of business on the
tenth anniversary of the date of issuance hereof.
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9. LOCK-UP AGREEMENT. The Holder hereby agrees that, upon request of the
-----------------
Company or the managing underwriter of a public offering of any securities of
the Company, such Holder shall not sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of all or any portion of the
Warrant Shares without the prior written consent of the Company or the managing
underwriter, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days from the date upon which the registration statement
relating to such public offering is declared or ordered effective by the
Securities and Exchange Commission) as may be requested by the Company or the
underwriters, as the case may be.
10. MISCELLANEOUS.
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(a) Governing Law. This Warrant is being delivered in the State of
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California, and shall be construed and enforced in accordance with and governed
by the laws of such State. The parties expressly stipulate that any litigation
under this Warrant shall be brought in the State courts of the County of Santa
Clara, California, and in the United States District Court for the Northern
District of California. The parties agree to submit to the jurisdiction and
venue of such courts.
(b) Notice Procedures. Any written notice by the Company required
-----------------
hereunder shall be made by hand delivery or first class mail, postage prepaid,
address to the Holder at the address set forth on the books of the Company.
(c) Successors and Assigns. The terms of this Warrant shall be
----------------------
binding upon and shall inure to the benefit of any successors or assigns of the
Company and of the Holder or Holders of this Warrant and the Warrant Shares
issued or issuable upon the exercise of the rights represented by this Warrant.
(d) Entire Agreement. This Warrant constitutes the full and entire
----------------
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes in their entirety any prior or contemporaneous
agreements by and between the Company and the Holder with respect to such
matters.
(e) Further Assurances: No Impairment. The Company shall not, by
---------------------------------
amendment of its Articles of Incorporation or through any other means, directly
or indirectly, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant and shall at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against impairment. The Company shall at no time close its transfer
books against the transfer of this Warrant or of any Warrant Shares issued or
issuable upon the exercise of the rights represented by this Warrant in any
manner which interferes with a timely exercise of such rights. The Company shall
not, by any action, seek to avoid the observance or performance of any of the
terms of this Warrant, but shall at all times in good faith seek to carry out
all such terms and take all such actions as may be necessary or appropriate in
order to protect the rights of the Holder under this Warrant against impairment.
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(f) Lost Warrant. Upon receipt of evidence reasonably satisfactory to
------------
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company at the Holder's expense shall execute and deliver to the
Holder, in lieu thereof, a new Warrant of like date and tenor.
(g) Amendments. This Warrant and any provision hereof may be amended,
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waived or terminated (either generally or in a particular instance,
retroactively or prospectively and for a specified period of time or
indefinitely) only by a written instrument signed by the Company and the Holder,
or, in the event of any partial transfer of the rights represented by this
Warrant, the Holders of rights to purchase more than fifty percent (50%) of the
Warrant Shares issuable upon exercise of the rights represented by this Warrant,
and with the same consent the Company may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Warrant or the Warrants, as the case
may be, provided, however, that no such amendment, waiver, termination or
supplemental agreement shall reduce the aforesaid percentage which is required
for consent to any amendment, waiver, termination or supplemental agreement
without the consent of all of the Holders of the rights represented by this
Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
Issued this 31st day of December, 1998
PC-TEL, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: President & CEO
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By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Acknowledged and Accepted:
PFF BANK AND TRUST, INC.
A California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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Date: March 26, 1999
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EXHIBIT A
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NOTICE OF CASH EXERCISE
To: PC-TEL, Inc.
00 Xxx Xxxxxx
Xxx Xxxx, XX 00000
1. The undersigned hereby elects to purchase _______ shares of Series C
Preferred Stock of PC-TEL, Inc., a Delaware corporation (the "Company"),
pursuant to the terms of Warrant No. ____, issued on ________________, 199__, to
and in the name of PFF Bank and Trust, Inc., a copy of which is attached hereto
(the "Warrant"), and tenders herewith full payment of the aggregate Exercise
Price for such shares in accordance with the terms of the Warrant.
2. Please issue a certificate or certificates representing said shares of
Series C Preferred Stock in such name or names as specified below:
PFF Bank and Trust, Inc.
a California corporation
The undersigned hereby represents and warrants that the aforesaid shares of
Series C Preferred Stock are being acquired for the account of the undersigned
for investment and not with a view to, or for resale in connection with, the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares and all representations and warranties of
the undersigned set forth in attached Warrant are true and correct as of the
date hereof. In support thereof, the undersigned has executed an Investment
Representation Statement, in the form attached as Exhibit C to the Warrant,
concurrently herewith.
PFF Bank and Trust, Inc.,
a California corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Date:
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EXHIBIT B
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NOTICE OF NET-ISSUE EXERCISE
To: PC-TEL, Inc.
00 Xxx Xxxxxx
Xxx Xxxx, XX 00000
1. The undersigned hereby elects to purchase ____________ shares of
Series C Preferred Stock of PC-TEL, Inc., a Delaware corporation (the
"Company"), on a net-issue basis pursuant to the terms of Warrant No.
_______________, issued on _______________, 199__, to ______________________ and
in the name of PFF Bank and Trust, Inc., a copy of which is attached hereto (the
"Warrant").
2. Net-Issue Information:
(a) Number of Shares of Series C Preferred Stock to be Delivered:
__________________
(b) Number of Shares of Series C Preferred Stock Surrendered:
____________________
(c) Number of Shares Remaining Subject to Warrant:
____________________________
3. Please issue a certificate or certificates representing said
shares of Series C Preferred Stock in such name or names as specified below:
PFF Bank and Trust, Inc.
4. The undersigned hereby represents and warrants that the aforesaid
shares of Series C Preferred Stock are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection
with, the distribution thereof, and that the undersigned has no present
intention of distributing or reselling such shares and all representations and
warranties of the undersigned set forth in attached Warrant are true and correct
as of the date hereof. In support thereof, the undersigned has executed an
Investment Representation Statement, in the form attached as Exhibit C to the
Warrant, concurrently herewith.
PFF Bank and Trust, Inc.,
a California corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
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Date:
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EXHIBIT C
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INVESTMENT REPRESENTATION STATEMENT
PURCHASER: PFF Bank and Trust, Inc.
SELLER: PC-TEL, Inc.
COMPANY: PC-TEL, Inc.
SECURITY: Series C Preferred Stock Issued Upon The Exercise Of Warrant No.
_____________ Issued On _____________________, 199__.
AMOUNT: _______________ SHARES
DATE: __________________
The undersigned hereby represent and warrants to PC-TEL, Inc., a Delaware
corporation (the "Company"), as follows:
1. I am aware of the business affairs, financial condition and results of
operations of the Company and have acquired sufficient information about the
Company to reach an informed and knowledgeable investment decision to acquire
the Securities. I am purchasing the Securities for my own account for
investment purposes only and not with a view to, or for the resale in connection
with, any "distribution" thereof for purposes of the Securities Act of 1933, as
amended (the "Securities Act").
2. I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein. I understand that, in the view of the Securities and
Exchange Commission (the "Commission"), the statutory basis for such exemption
may be unavailable if my representation was predicated solely upon a present
intention to hold the Securities for the minimum capital gains period specified
under tax statutes, for a deferred sale, for or until an increase or decrease in
the market price of the Securities, or for a period of one year or any other
fixed period in the future.
3. I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. In addition, I understand that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
4. I am familiar with the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions.
5. I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the Commission has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
PFF Bank and Trust, Inc.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
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EXHIBIT D
---------
NOTICE OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________________ the right represented by Warrant No.
_______________, issued on _________________, 199__, to and in the name of
____________________________, to purchase ______________ shares of Series C
Preferred Stock of PC-TEL, Inc., a Delaware corporation (the "Company"), a copy
of which is attached hereto (the "Warrant"), and appoints
________________________________ as attorney-in-fact to transfer such right on
the books of the Company with full power of substitution in the premises.
Dated: _________________________ PFF Bank and Trust, Inc.,
a California corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
(Signature must conform in all respects to
name of the Holder as set forth on the face
of the Warrant)
Address:
Signed in the presence of:
-----------------------------------
EXHIBIT E
---------
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: PFF Bank and Trust, Inc.
TRANSFEROR:
---------------------------------
COMPANY: PC-TEL, Inc.
SECURITY: WARRANT NO. ___________, ISSUED ON ______________, 199 .
AMOUNT: _____________________SHARES
DATE:
---------------------------------
The undersigned hereby represent and warrants to PC-TEL, Inc., a Delaware
corporation (the "Company"), as follows:
1. I am aware of the business affairs, financial condition and results of
operations of the Company and have acquired sufficient information about the
Company to reach an informed and knowledgeable investment decision to acquire
the Securities. I am purchasing the Securities for my own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Securities Act").
2. I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein. I understand that, in the view of the Securities and
Exchange Commission (the "Commission"), the statutory basis for such exemption
may be unavailable if my representation was predicated solely upon a present
intention to hold the Securities for the minimum capital gains period specified
under tax statutes, for a deferred sale, for or until an increase or decrease in
the market price of the Securities, or for a period of one year or any other
fixed period in the future.
3. I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. In addition, I understand that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
4. I am familiar with the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions.
5. I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other
registration exemption will be required; and that, notwithstanding the fact that
Rule 144 is not exclusive, the Staff of the Commission has expressed its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Date: PFF Bank and Trust, Inc.,
------------------------------ a California corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
-2-
