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EXHIBIT 3.4
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAS BEEN
REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND NEITHER
THIS WARRANT NOR SUCH SECURITIES MAY BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND LAWS UNLESS
RF MICRO DEVICES, INC. RECEIVES AN OPINION OF COUNSEL, WHICH MAY BE HOLDER'S
IN-HOUSE COUNSEL, REASONABLY ACCEPTABLE TO
IT THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT NO. 4
RF MICRO DEVICES, INC.
A North Carolina Corporation
(Void after 5:00 p.m.,
Washington D.C. Time, at the Expiration Date (as hereinafter defined))
THIS CERTIFIES THAT, for value received, TRW Inc. (the "Holder") is
entitled at any time before 5:00 p.m. Washington D.C. time on the Expiration
Date (as hereinafter defined) (such time on the Expiration Date being referred
to herein as the "Expiration Time") to purchase up to 1,000,000 (one million)
shares (the "Shares") of the Common Stock, no par value, of RF MICRO DEVICES,
INC. (the "Company"), a North Carolina corporation, at the price of $10.00 per
Share, subject to adjustment as provided in paragraph 5 of this Warrant (that
price, as it may be adjusted from time to time, being referred to as the
"Warrant Price").
1. This Warrant may only be exercised if the Technology
Transfer Date (as hereinafter defined) has occurred and prior to the first to
occur of: (i) the second anniversary of the Technology Transfer Date; or (ii)
90 days after the Company has provided notice to the Holder that the current
market price of the Company's Common Stock (as determined pursuant to this
paragraph) is, and has been for at least 20 (twenty) consecutive trading days
(as defined below), at least $12.00 per share (subject to adjustment to reflect
stock splits, subdivisions, combinations, or dividends paid in common stock of
the Company) (the first to occur of subparagraph (i) or (ii) of this paragraph
1 being the "Expiration Date"); provided, however, that if the Holder has
complied with the filing provisions of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act") at least thirty days prior
to the Expiration Date, but the waiting period imposed by the HSR Act has not
terminated or lapsed, then the Expiration Date will be extended until ten days
after such termination or lapse; and further provided, that if the Technology
Transfer Date (defined below) does not occur by December 31, 1998 (or such
other date as to which the parties mutually agree pursuant to Section 8.2.2 of
the License), this Warrant will be void and of no further force or effect.
As used herein, the term "Technology Transfer Date" will mean the
date when a "Foundry" is considered an "Operational Foundry" under the terms of
that certain License and Technical Assistance Agreement of even date herewith
between the Company and the Holder (the "License Agreement"), and the terms
"Foundry and "Operational Foundry" will have the meanings given them in the
License Agreement. A "trading day" will mean any day upon which the New York
Stock Exchange is open for trading.
The current market price per share of Common Stock on any day will be
deemed to be the closing price of the Common Stock on the day before the day in
question. The closing price of the Common Stock on a day will be the last
reported sale price regular way or, in case no reported sale takes place on
that day, the average of the reported bid and asked prices regular way, in
either case on the principal trading market on which the Common Stock is listed
or authorized for trading, or if not listed or authorized for trading on any
trading market in which actual transactions are reported, the average of the
highest reported bid and lowest reported asked prices as furnished by the
National Association of Securities Dealers Inc.'s Automated Quotation System
Level I, or the nearest comparable system.
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2. To exercise this Warrant, this Warrant must be surrendered
prior to the Expiration Time at the office of the Company at 0000-X Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or such other address as
the Company may specify in writing to the Holder of this Warrant at least ten
days before this Warrant is exercised) with the attached Notice of Exercise
duly completed and executed, accompanied by evidence of a wire transfer of
immediately available funds to the Company's money market account #________
with Silicon Valley Bank, Santa Clara, California, ABA Routing #________ (or
such other account as the Company may specify in writing to the Holder of this
Warrant at least ten days before this Warrant is exercised) in full payment of
the purchase price of the Shares with respect to which this Warrant is
exercised. This Warrant may be exercised in whole or in part as to any whole
number of Shares. If this Warrant is exercised in part, upon surrender of this
Warrant for exercise, the Company will issue to the Holder a new Warrant to
purchase the remaining number of Shares which may be purchased upon exercise of
this Warrant (before taking account of adjustments by reason of paragraphs 5, 6
and 7). The new Warrant will bear the same date as this Warrant and will be
identical to this Warrant in all respects, except as to the number of Shares as
to which it may be exercised.
3. The Shares as to which this Warrant is exercised will be
deemed to be issued when this Warrant is exercised. Holder agrees that, prior
to the exercise of this Warrant, it will comply with the provisions of the HSR
Act as in effect from time to time. If action is taken by the Federal Trade
Commission or the United States Department of Justice to enjoin Holder's
exercise of the Warrant, the Company agrees to reasonably cooperate with Holder
to contest such enjoinment at the expense of this Holder. A certificate
representing those Shares will be issued to the Holder of this Warrant promptly
after it is exercised. The certificate may bear a legend to the effect that
the Shares it represents have not been registered under the Securities Act of
1933, as amended (the "Act"), or any applicable state securities laws, and may
only be transferred in a transaction registered under that Act or such laws or
exempt from the registration requirements of that Act or such laws. In
addition, any other legend required by any other agreement between the Company
and Holder may be included on the certificate or certificates for such Shares.
4. This Warrant will expire, and the right to purchase the Shares
by exercise of this Warrant will terminate, at the Expiration Time (as it may
be extended pursuant to paragraph 1: provided, however, that if Holder has
complied with the filing provisions of the HSR Act at least thirty days prior
to the Expiration Time, but the waiting period imposed by the HSR Act has not
terminated or lapsed, then the Expiration Time will be extended until ten days
after such termination or lapse. After that time this Warrant will be void.
5. The Warrant Price will be subject to adjustment from time to
time as follows: If the Company (i) pays a dividend on its Common Stock in
Common Stock, (ii) splits or subdivides its outstanding shares of Common Stock,
or (iii) combines its outstanding shares of Common Stock into a smaller number
of shares, the Warrant Price in effect immediately prior to each of those
events will be adjusted proportionately so that the adjusted Warrant Price will
bear the same relation to the Warrant Price in effect immediately prior to the
event as the total number of shares of Common Stock outstanding immediately
prior to the event will bear to the total number of shares of Common Stock
outstanding immediately after the event. An adjustment made pursuant to this
paragraph will become effective immediately after the corresponding record date
in the case of a dividend and immediately after the effective date in the case
of a subdivision or combination.
No adjustment of the Warrant Price will be made if the amount of such
adjustment would be less than 2% of the Warrant Price, but any such adjustment
that would otherwise be required to be made and has not previously been made
will be carried forward and be made at the time of and together with the next
subsequent adjustment which, together with all adjustments so carried forward,
amount in the aggregate to 2% or more of the Warrant Price. As used in this
paragraph, "Common Stock" includes any class of the Company's capital stock,
now or hereafter authorized, having the right to participate in the
distribution of either earnings or assets of the Company without limitation as
to amount or percentage. At no time will the Warrant Price be less than $.01
per share.
6. Upon each adjustment of the Warrant Price pursuant to
paragraph 5, the number of shares of Common Stock purchasable upon exercise of
this Warrant will be adjusted so that the number of shares of Common Stock
which would be issued if this Warrant were exercised in full (at such adjusted
Warrant Price) would be the number of shares obtained by multiplying the number
of shares of Common Stock purchasable by exercise of this
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Warrant in full immediately prior to the adjustment by the Warrant Price in
effect prior to the adjustment and dividing the product so obtained by the new
Warrant Price, but upon any exercise of this Warrant, the number of Shares to
be issued will be the nearest number of whole Shares.
7. In case of a distribution to all holders of the Company's
Common Stock of shares of its capital stock (other than Common Stock) or
evidences of its indebtedness or assets, or a capital reorganization of the
Company, a reclassification of the Common Stock, a consolidation of the Company
with or merger of the Company into another corporation or entity (other than a
consolidation or merger in which the Company is the continuing entity) or a
sale of the properties and assets of the Company as, or substantially as, an
entirety and distribution of the proceeds of sale, after such distribution,
capital reorganization, reclassification, consolidation, merger or sale, on
exercise of this Warrant the Holder will receive the number of shares of stock
or other securities or property which the Holder would have received if this
Warrant had been exercised immediately before the first such corporate event
and the Holder had retained what it would have received as a result of each
such corporate event. The split or subdivision or combination of shares of
Common Stock at any time outstanding into a greater or lesser number of shares
of Common Stock will not be deemed to be a reclassification of the Common Stock
of the Company for the purposes of this paragraph. The Company will not effect
any consolidation or merger unless prior to or simultaneously with its
consummation the successor entity (if other than the Company) resulting from
the consolidation agrees in writing to deliver to the Holder of this Warrant on
exercise of this Warrant the shares of stock or other securities or property to
which the Holder becomes entitled because of that exercise.
8. Whenever the Warrant Price is adjusted as provided in this
Agreement, the Company will compute the adjusted Warrant Price and the number
of Shares or other assets the Holder would receive on exercise of this Warrant
in full and will provide a notice to the Holder within thirty (30) days of the
date of such adjustment stating that the Warrant Price has been adjusted and
setting forth the adjusted Warrant Price and what the Holder would receive upon
exercise of this Warrant in full. The Company will also provide a notice to the
Holder describing any event that would trigger an adjustment in the Warrant
Price in the absence of the last paragraph of paragraph 5. Such notice will be
given within thirty (30) days of the effective date of such event.
9. The Company will at all times keep a sufficient number of
authorized but unissued shares of its Common Stock to permit exercise in full
of this Warrant. The Company represents and warrants that all the shares of
Common Stock which are delivered on exercise of this Warrant (and payment of
the Warrant Price therefor) will, upon delivery, be duly issued, fully paid and
non-assessable.
10. The Holder will not, by reason of holding this Warrant, have
any right to vote, to receive dividends or other distributions, or any other
rights of a shareholder, with regard to the Shares.
11. The Holder may not assign this Warrant or any of the Holder's
rights under it, except (i) to a corporation controlling, controlled by or
under common control with the Holder or by (ii) merger or other operation of
law, and any transfer or attempted transfer of this Warrant will be of no
force or effect.
12. Any notices or other communications to the holder of this
Warrant will be addressed to TRW Inc., Space & Electronics Group, Xxx Xxxxx
Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Vice President, Finance,
Electronic Systems & Technology Division, with a copy to TRW Inc., 0000
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Secretary, or to such other
address as the Holder may specify in writing to the Company.
13. This Warrant will be governed by, and construed under, the
laws of the State of North Carolina.
14. This Warrant may not be modified without the written consent
of the Company.
Dated: June 6, 1996 RF MICRO DEVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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President and CEO
