Exhibit 99.3
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") OR STATE SECURITIES LAWS AND NO TRANSFER
OF SUCH SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND THE RULES AND REGULATIONS THEREUNDER AND OF ALL
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, OR (B) PURSUANT TO AN EXEMPTION
THEREFROM UNDER SAID ACT AND ALL APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS
WITH RESPECT TO WHICH THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY
OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE
REQUIREMENTS OF THE ACT.
WARRANT TO PURCHASE STOCK
Corporation: Novatel Wireless, Inc.
Number of Shares: [_______] (subject to increase as provided below)
Class of Stock: Common Stock, par value $0.001 per share
Initial Exercise Price: $0.70 (subject to adjustment as provided below)
Issue Date: [March 12, 2003][or][INSERT ISSUE DATE FOR WARRANTS
ISSUED AFTER FIRST CLOSING]
Expiration Date: [September 12, 2008][or][INSERT ISSUE DATE PLUS 5.5
YEARS FOR WARRANTS ISSUED AFTER FIRST CLOSING]
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for
other good and valuable consideration, [________________] ("Holder"), is
entitled to purchase the number of fully paid and nonassessable shares of Common
Stock (the "Shares") of the corporation (the "Company") at the initial exercise
price per Share (the "Warrant Price") all as set forth above and as adjusted
pursuant to ARTICLE 2 of this Warrant, subject to the provisions and upon the
terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Commencing [SEPTEMBER 12, 2003][OR][INSERT ISSUE
DATE PLUS 6 MONTHS FOR WARRANTS ISSUED AFTER FIRST CLOSING], Holder
may exercise this Warrant in whole or in part from time to time by
delivering a duly executed Notice of Exercise in substantially the
form attached as Appendix 1 to the principal office of the Company.
Unless Holder is exercising the conversion right set forth in
Section 1.2, Holder shall also deliver to the Company a check for
the aggregate Warrant Price for the Shares being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this Warrant, in
whole or in part, into a number of Shares determined by dividing (a)
the aggregate fair market value of the Shares or other securities
otherwise issuable upon exercise of this Warrant or portion thereof
minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share; provided, however, the Holder shall not
be entitled to exercise this Warrant pursuant to this Section 1.2
prior to the first anniversary of the Issue Date of this Warrant.
The fair market value of the Shares shall be determined pursuant to
Section 1.2.1.
1.2.1 Fair Market Value. If the Shares are traded in a public
market, the fair market value of the Shares shall be the
closing price of the Shares (or the closing price of the
Company's stock into which the Shares are convertible)
reported for the business day immediately before Holder
delivers its Notice of Exercise to the Company. If the Shares
are not traded in a public market, the Board of Directors of
the Company shall initially determine fair market value in its
reasonable good faith judgment. The Company shall provide the
Holder with written notice (within 10 days after delivery of
the Notice of Exercise) of its fair market value
determination. If the Holder objects to the determination
within 10 days after delivery by the Company of its fair
market value determination, the Holder may either (i) rescind
its Notice of Exercise in which case no exercise shall be
deemed to have occurred, or (ii) request that the fair market
value be determined pursuant to the Appraisal Procedure (as
defined below), which determination shall be binding on the
Holder and the Company.
1.3 Delivery of Certificate and New Warrant. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to
Holder certificates for the Shares acquired and, if this Warrant has
not been fully exercised or converted and has not expired, a new
Warrant representing the Shares not so acquired.
1.4 Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of
mutilation, or surrender and cancellation of this Warrant, the
Company shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor.
1.5 Assumption on Sale, Merger, or Consolidation of the Company.
1.5.1 "Acquisition". For the purpose of this Warrant, "Acquisition"
means any sale, license, or other disposition of all or
substantially all of the
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assets of the Company, or any reorganization, consolidation,
or merger of the Company in which the Company shall not be the
continuing or surviving entity of such consolidation or
merger.
1.5.2 Assumption of Warrant. Upon the closing of any Acquisition,
the successor entity shall assume the obligations of this
Warrant, and this Warrant shall be exercisable for the same
securities, cash, and property as would be payable for the
Shares issuable upon exercise of the unexercised portion of
this Warrant as if such Shares were outstanding on the record
date for the Acquisition and subsequent closing.
ARTICLE 2. ADJUSTMENTS TO THE WARRANT PRICE AND NUMBER OF SHARES.
2.1 Definitions. As used in this ARTICLE 2, the following terms have the
following respective meanings:
2.1.1 "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company (including those deemed
issued pursuant to Section 2.3) after March 12, 2003 for any
reason, including without limitation as a result of sales of
Common Stock or Options, the issuance of Options, stock
dividends, distributions payable in common stock, stock
splits, reverse stock splits, recapitalizations,
reclassifications, combinations or exchanges of shares,
separations, reorganizations, liquidations or other similar
event, other than:
(i) securities issued or issuable as a dividend or
distribution on the Series B Preferred Stock;
(ii) not more than ten (10) shares of capital stock of the
Company on an "as converted to common stock" basis, the
issuance of which resulted from mathematical or other
error or inadvertence, provided that the transaction in
which such shares were issued was approved at the time
by vote of a majority of the Board of Directors of the
Company;
(iii) the first 500,000 shares of Common Stock issued or
issuable pursuant to Employee Equity Issuances after
Xxxxx 00, 0000 (xx being understood that the first such
500,000 shares shall not be subject to Section 2.2.2,
and any subsequent Employee Equity Issuances shall be
subject to Section 2.2.2; provided, further, such
500,000 share figure shall be appropriately adjusted to
reflect transactions described in Sections 2.4 and 2.5);
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(iv) securities issued or issuable as a dividend or
distribution on the Series A Preferred Stock upon the
conversion of the Series A Preferred Stock to Common
Stock; and
(v) any securities issued or issuable as a result of an
adjustment of the Warrant Price made pursuant to Section
2.2.
2.1.2 "Convertible Securities" means any evidences of indebtedness,
shares of stock, or other securities directly or indirectly
convertible into or exchangeable for common stock or the value
of which is otherwise derived from or based upon the value of
the Common Stock.
2.1.3 "Employee Equity Issuances" means the issuance of shares of
Common Stock or Options to officers, directors or employees
of, or consultants to, the Company pursuant to stock option or
stock purchase plans or agreements on terms approved by the
Board of Directors.
2.1.4 "Option" means any right, option, or warrant to subscribe for,
purchase, or otherwise acquire common stock or Convertible
Securities.
2.2 Adjustments for Dilutive Issuances.
2.2.1 Issuances Other than Employee Equity Issuances. If the Company
shall issue, after March 12, 2003, any Additional Shares of
Common Stock (other than issuances pursuant to transactions
described in Section 2.4 and Section 2.5 but expressly
excluding any new issuances concurrent with such transactions)
without consideration or for a consideration per share less
than the Warrant Price in effect immediately prior to the
issuance of such Additional Shares of Common Stock, the
Warrant Price in effect immediately prior to each such
issuance shall forthwith be adjusted to be equal to the amount
of consideration per share received in connection with such
issuance, as determined pursuant to Section 2.6.
Notwithstanding the foregoing, the provisions of this Section
2.2.1 shall not apply to Additional Shares of Common Stock
issued through an Employee Equity Issuance.
2.2.2 Dilutive Issuances due to Employee Equity Issuances. If the
Company shall issue, after March 12, 2003, any Additional
Shares of Common Stock through an Employee Equity Issuance
without consideration or for a consideration per share less
than the Warrant Price in effect immediately prior to the
issuance of such Additional Shares of Common Stock, the
Warrant Price in effect immediately prior to each such
issuance shall forthwith be adjusted to be equal to a price
determined by multiplying the Warrant Price then in effect by
a fraction (which shall in no event be greater than one), the
numerator
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of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number
of shares of Common Stock that the aggregate consideration
received by the Company for such issuance would purchase at
the Warrant Price; and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior
to such issuance plus the number of shares of such Additional
Shares of Common Stock. For purposes of the foregoing
computation, the number of shares of Common Stock outstanding
shall be deemed to include all shares of Common Stock actually
outstanding and all shares of Common Stock deemed to be
outstanding as a result of the application of the rules set
forth in Section 2.3.
2.3 Deemed Issuance of Additional Shares of Common Stock. In the case of
the issuance of Options or Convertible Securities, the following
provisions shall apply for all purposes of this ARTICLE 2:
2.3.1 The aggregate maximum number of shares of Common Stock
deliverable upon exercise (assuming the satisfaction of any
conditions to exercisability, including without limitation,
the passage of time, but without taking into account potential
antidilution adjustments) of such Options (and, in the case of
Options to acquire Convertible Securities, the maximum number
of shares of Common Stock issuable upon conversion or exchange
of such Convertible Securities) shall be deemed to have been
issued at the time such Options were issued and for a
consideration equal to the consideration (determined in the
manner provided in Section 2.6), if any, received by the
Company upon the issuance of such Options plus the minimum
exercise price provided in such Options (without taking into
account potential antidilution adjustments) for the Common
Stock covered thereby (plus, in the case of Options to acquire
Convertible Securities, the minimum additional consideration,
if any, deliverable upon conversion or exchange of such
Convertible Securities).
2.3.2 The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (assuming the
satisfaction of any conditions to convertibility or
exchangeability, including, without limitation, the passage of
time, but without taking into account potential antidilution
adjustments) for such Convertible Securities or upon the
exercise of Options to purchase Convertible Securities and
subsequent conversion or exchange thereof shall be deemed to
have been issued at the time such Convertible Securities were
issued or such Options were issued and for a consideration
equal to the consideration, if any, received by the Company
for any such Convertible Securities and related Options
(excluding any cash received on account of accrued interest or
accrued dividends), plus the minimum additional consideration,
if any, to be received by the Company (without taking into
account potential antidilution
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adjustments) upon the conversion or exchange of such
Convertible Securities or the exercise of any related Options
(the consideration in each case to be determined in the manner
provided in Section 2.6).
2.3.3 If, following the issuance of Options or Convertible
Securities and the determination of the impact of such
issuance pursuant to Section 2.3.1 or 2.3.2 above, there is
any change in the maximum number of shares of Common Stock
deliverable or in the minimum consideration payable to the
Company upon exercise of such Options or upon conversion of or
in exchange for such Convertible Securities, including, but
not limited to, a change resulting from the antidilution
provisions thereof, the Warrant Price shall be recomputed to
reflect such change, but no further adjustment shall be made
for the actual issuance of Common Stock or any payment of such
consideration upon the exercise of any such Options or the
conversion or exchange of such Convertible Securities.
2.3.4 The number of shares of Common Stock deemed issued and the
consideration deemed paid therefor pursuant to sections 2.3.1
and 2.3.2 shall be appropriately adjusted to reflect any
change of the type described in subsection 2.3.3. No
readjustment of the Warrant Price pursuant to a change
described in the preceding sentence shall increase the Warrant
Price more than the amount of any decrease made in respect of
the corresponding issue of Options or Convertible Securities.
2.3.5 For purposes of this ARTICLE 2, Securities (including Options
or Convertible Securities) shall be deemed to be issued on the
earliest to occur of the grant, issuance, or sale of, or the
fixing of a record date with respect to the distribution or
issuance of, such securities.
2.4 Stock Dividends, Splits, Etc. If the Company declares or pays a
dividend on its Common Stock payable in Common Stock, or other
securities, subdivides the outstanding Common Stock into a greater
amount of Common Stock, then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without cost to Holder, the
total number and kind of securities to which Holder would have been
entitled had Holder owned the Shares of record as of the date the
dividend or subdivision occurred. If the outstanding shares are
combined or consolidated, by reclassification or otherwise, into a
lesser number of shares, the Warrant Price shall be proportionately
increased.
2.5 Reclassification, Exchange, Combinations or Substitution. Upon any
reclassification, exchange, substitution, or other event that
results in a change of the number and/or class of the securities
issuable upon exercise or conversion of this Warrant, Holder shall
be entitled to receive, upon exercise or conversion of this Warrant,
the number and kind of securities and property that Holder would
have received for the Shares if this Warrant had been exercised
immediately before such reclassification, exchange, substitution, or
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other event. The Company or its successor shall promptly issue to
Holder a new Warrant for such new securities or other property. The
new Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this ARTICLE 2 including, without limitation, adjustments to the
Warrant Price and to the number of securities or property issuable
upon exercise of the new Warrant. The provisions of this Section 2.5
shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.6 Computation of Consideration. The consideration received by the
Company for the issuance of any Additional Common Shares shall be
computed as follows:
2.6.1 In the case of the issuance of Additional Shares of Common
Stock for cash, the consideration shall be deemed to be the
amount of cash paid therefore after deducting any reasonable
discounts, commissions or other expenses allowed, paid or
incurred by this Company for any underwriting or otherwise in
connection with the issuance and sale thereof.
2.6.2 In the case of the issuance of Additional Shares of Common
Stock for a consideration in whole or in part other than cash,
the consideration other than cash shall be deemed to be the
fair value thereof as determined in good faith by the Board of
Directors. The Company shall provide the Holder with written
notice of its fair market value determination pursuant to this
Section 2.6.2 within 30 days following such issuance. If the
holders of a majority of the outstanding warrants issued
pursuant to the Purchase Agreement ("Majority Holders")
deliver to the Company, within 30 days following delivery of
the Company's written notice, written notice of their
objection to such determination the fair market value shall be
determined pursuant to the Appraisal Procedure, which
determination shall be binding on the Holder and the company.
2.6.3 The consideration for Additional Shares of Common Stock issued
together with other property of the Company for consideration
that covers both shall be determined in good faith by the
Board of Directors. The Company shall provide the Holder with
written notice of its determination of the consideration
provided in connection with an issuance covered by Section
2.6.3 within 30 days following such issuance. If the Majority
Holders deliver to the Company, within 30 days following
delivery of the Company's written notice, objection to such
determination, the consideration provided shall be determined
pursuant to the Appraisal Procedure, which determination shall
be binding on the Holder and the Company.
2.7 No Impairment. The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer
of assets, consolidation,
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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 under
this Warrant by the Company, but shall at all times in good faith
assist in carrying out of all the provisions of this ARTICLE 2 and
in taking all such action as may be necessary or appropriate to
protect Holder's rights under this Article against impairment.
2.8 Fractional Shares. No fractional Shares shall be issuable upon
exercise or conversion of the Warrant and the number of Shares to be
issued shall be rounded down to the nearest whole Share. If a
fractional share interest arises upon any exercise or conversion of
the Warrant, the Company shall eliminate such fractional share
interest by paying Holder the amount computed by multiplying the
fractional interest by the fair market value of a full Share.
2.9 Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Warrant Price pursuant to this
ARTICLE 2, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and
furnish to the Holder a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such
adjustment is based; provided, however, that the Company shall not
be required to provide each holder with such a certificate more than
one time per calendar quarter. The Company shall, upon the written
request at any time of the Holder, furnish or cause to be furnished
to the Holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Warrant Price in effect at the time, and
(iii) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon exercise
of the Warrant.
2.10 Appraisal Procedure. In the event of a challenge to the fair market
value determinations of the board of directors pursuant to Section
1.2.1 or 2.6.2, or the amount of consideration determined pursuant
to Section 2.6.3, the Company and the Holder (or in case of Sections
2.6.2 and 2.6.3, the Majority Holders) shall attempt to select an
investment banking firm to resolve such dispute. In the event that
the Company and the Holder (or Majority Holders) are unable to agree
upon an investment banking firm, within 30 days following the
delivery of the Holder's (or Majority Holder's) written objections
("Objection Date"), the Company and the Holder (or Majority
Holders), within 45 days following the Objection Date, shall each
select an investment banking firm with a national reputation and the
two firms so selected shall agree upon a third investment banking
firm, which shall resolve such dispute. The findings of the
investment banking firm so selected shall be binding on the Company
and the Holder (or Majority Holders, as the case may be). The fees
and costs of the investment banking firm selected shall be borne
one-half by the Company and one-half by the Holder (or Majority
Holders, as the case may be).
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ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company represents and warrants
to the Holder that all Shares which may be issued upon the exercise
of the purchase right represented by this Warrant, shall, upon
issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and encumbrances except for
restrictions on transfer provided for herein or under applicable
federal and state securities laws.
3.2 Notice of Certain Events. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether
in cash, property, stock, or other securities and whether or not a
regular cash dividend; (b) to offer for subscription pro rata to the
holders of any class or series of its stock any additional shares of
stock of any class or series or other rights; (c) to effect any
reclassification or recapitalization of common stock; (d) to merge
or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up; or (e) offer holders of registration
rights the opportunity to participate in an underwritten public
offering of the company's securities for cash, then, in connection
with each such event, the Company shall give Holder (1) at least 10
days prior written notice of the date on which a record will be
taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be
entitled thereto) or for determining rights to vote, if any, in
respect of the matters referred to in (a), (b), (c) and (d) above;
(2) in the case of the matters referred to in (c) and (d) above at
least 10 days prior written notice of the date when the same will
take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities
or other property deliverable upon the occurrence of such event);
and (3) in the case of the matter referred to in (e) above, the same
notice as is given to the holders of such registration rights.
3.3 Registration Under Securities Act of 1933, as amended. The Company
agrees that the Shares or, if the Shares are convertible into common
stock of the Company, such common stock, shall be subject to the
registration rights set forth in the Registration Rights Agreement
between the Company, the Holder and certain other parties dated as
of March 12, 2003, as amended.
ARTICLE 4. MISCELLANEOUS.
4.1 Voting Rights. This Warrant shall not entitle the registered holder
to any voting rights or other rights as a stockholder of the Company
but upon presentation of this Warrant with the Notice of Exercise
duly executed and, if exercised pursuant to Section 1.1, the tender
of payment of the Warrant Price at the office of the Company
pursuant to the provisions of this Warrant, the registered holder
shall forthwith be deemed a stockholder of the Company in respect of
the Shares so subscribed for.
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4.2 No Change Necessary. The form of this Warrant need not be changed
because of any adjustment in the Warrant Price or in the number of
Shares issuable upon its exercise. A Warrant issued after any
adjustment on any partial exercise or upon replacement may continue
to express the same Warrant Price and the same number of Shares
(appropriately reduced in the case of partial exercise) as are
stated on this Warrant as initially issued, and that Warrant Price
and that number of shares shall be considered to have been so
changed as of the close of business on the date of adjustment.
4.3 Term. This Warrant is exercisable in whole or in part at any time
and from time to time beginning six months after the date hereof,
through and including the Expiration Date.
4.4 Legends. This Warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) shall
be imprinted with a legend in substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR STATE SECURITIES LAWS AND
NO TRANSFER OF SUCH SECURITIES MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND THE RULES AND
REGULATIONS THEREUNDER AND OF ALL APPLICABLE STATE SECURITIES OR "BLUE
SKY" LAWS, OR (B) PURSUANT TO AN EXEMPTION THEREFROM UNDER SAID ACT AND
ALL APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS WITH RESPECT TO WHICH
THE COMPANY MAY, UPON REQUEST, REQUIRE A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER THAT SUCH TRANSFER IS EXEMPT FROM THE REQUIREMENTS OF THE
ACT.
4.5 Compliance with Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise of this Warrant (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if
any) may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the
transferor and the transferee (including, without limitation, the
delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company, as reasonably requested by
the Company). The Company shall not require Holder to provide an
opinion of counsel if the transfer is to an affiliate of Holder or
if there is no material question as to the availability of current
information as referenced in Rule 144(c), Holder represents that it
has complied with Rule 144(d) and (e) in reasonable detail, the
selling broker represents that it has complied with Rule 144(f), and
the Company is provided with a copy of Holder's notice of proposed
sale.
4.6 Transfer Procedure. Subject to the provisions of Section 4.5, Holder
may transfer all or part of this Warrant or the Shares issuable upon
exercise of this
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Warrant (or the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) to any affiliate of Holder at any
time without prior notice to Company; provided, however, if Holder
transfers this Warrant, Holder will give the Company notice of the
portion of the Warrant being transferred with the name, address and
taxpayer identification number of the transferee and surrendering
this Warrant to the Company for reissuance to the transferee(s) (and
Holder if applicable).
4.7 Notices. All notices and other communications from the Company to
the Holder, or vice versa, shall be deemed delivered and effective
when given personally or mailed by first-class registered or
certified mail, postage prepaid, at such address as may have been
furnished to the Company or the Holder, as the case may be, in
writing by the Company or such holder from time to time. Notices
shall be addressed as follows:
If to Holder, to the address set forth on the signature page hereto.
With a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
If to Company:
Novatel Wireless, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx
Attn: Xxxxx Xxxxxxxx, Chief Executive Officer
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxxx, Esq.
4.8 Waiver. This Warrant and any term hereof may be amended, changed,
waived, discharged or terminated only by an instrument in writing
signed by the Company and the Majority Holders.
4.9 Remedies. The Company stipulates that the remedies at law of the
Holder in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of
this Warrant are not and will not be adequate, and that such terms
may be specifically enforced by
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a decree for the specific performance of any agreement contained
herein or by an injunction against a violation of any of the terms
hereof or otherwise.
4.10 Taxes. The Company shall pay any issue or transfer taxes payable in
connection with the exercise of the Warrant, provided, however, that
the Company shall not be required to pay any tax which may be
payable in respect of any transfer to a name other than that of the
Holder.
4.11 Attorney's Fees. In the event of any legal or equitable action
between the parties concerning the terms and provisions of this
Warrant, the party prevailing in such legal or equitable action
shall be entitled to collect from the other party all costs incurred
in such dispute, including reasonable attorneys' fees.
4.12 Automatic Conversion upon Expiration. In the event that, upon the
Expiration Date, the fair market value of one Share (or other
security issuable upon the exercise hereof) as determined in
accordance with Section 1.2.1 above is greater than the Exercise
Price in effect on such date, then this Warrant shall automatically
be deemed on and as of such date to be converted pursuant to Section
1.2 above as to all Shares (or such other securities) for which it
shall not previously have been exercised or converted, and the
Company shall deliver a certificate representing the Shares (or such
other securities) issued upon such conversion to the Holder.
4.13 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving
effect to its principles regarding conflicts of law.
"COMPANY"
Novatel Wireless, Inc.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
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HOLDER'S ADDRESS
[-------------------------------]
[-------------------------------]
[-------------------------------]
[-------------------------------]
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NOTICE OF EXERCISE
To: Novatel Wireless, Inc.
(1) The undersigned hereby (A) elects to purchase ________ shares of
common stock of Novatel Wireless, Inc., pursuant to the provisions of Section
1.1 of the attached Warrant, and tenders herewith payment of the purchase price
for such shares in full, or (B) elects to exercise this Warrant with respect to
______ shares of common stock issuable upon exercise of the Warrant, pursuant to
the provisions of Section 1.2 of the attached Warrant.
(2) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
--------------------------------------
(Name)
--------------------------------------
(Name)
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is specified
below:
--------------------------------------
(Name)
------------------------------- --------------------------------------
(Date) (Signature)
Address of Holder:
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