EXHIBIT 4.2
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES, INCLUDING THE SHARES OF COMMON STOCK TO BE
ISSUED UPON EXERCISE, MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN EXEMPTION THEREFROM
UNDER SAID ACT, AND ANY APPLICABLE STATE SECURITIES LAWS, AND AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OR RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THESE
SECURITIES TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION.
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Date of Issuance: December ___, 2001
WARRANT TO PURCHASE
__________ SHARES OF COMMON STOCK OF
TRIMBLE NAVIGATION LIMITED
No. W2001-___
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, this warrant has been issued by Trimble Navigation Limited, a
California corporation (the "Company") to ______________ (the "Purchaser")
pursuant to the terms and conditions of that certain Stock and Warrant Purchase
Agreement dated as of the date hereof (the "Purchase Agreement"). This warrant
certifies that Purchaser and its nominees or assigns hereunder (the "Holder") is
entitled to purchase from the Company up to ______________ (________) fully paid
and nonassessable shares of the Company's common stock ("Common Stock"), at a
price of $19.475 per share (which is 125% of the "Fair Market Value" of a share
of Common Stock, as defined in the Purchase Agreement, hereinafter the "Exercise
Price"), at any time or from time to time up to and including 5:00 p.m.
(California time) on the Expiration Date (as hereinafter defined), upon
surrender to the Company at its principal office at 645 North Mary Avenue,
Sunnyvale, California 94088 (or at such other location as the Company may advise
the Holder in writing) of this Warrant properly endorsed with the Form of
Subscription attached as Exhibit A hereto duly filled in and signed and upon
payment, in any manner set forth herein, of the aggregate Exercise Price for the
number of shares for which this Warrant is being exercised determined in
accordance with the provisions hereof. The Exercise Price and the number of
shares purchasable hereunder are subject to additional adjustments and
limitations as provided in Section 4 of this Warrant.
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This Warrant is subject to the following terms and conditions:
1. Exercise.
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1.1 Issuance of Certificates; Payment for Shares. This Warrant is
exercisable only by the Holder of record hereof, at any time or from time to
time, in whole or in part, until 5:00 p.m., California time, on December 19,
2006 (the "Expiration Date"). The Company agrees that the shares of Common Stock
purchased under this Warrant shall be deemed to be issued to the Holder hereof
as the record owner of such shares as of the close of business on the date on
which this Warrant shall have been properly surrendered for exercise.
Certificates for the shares of Common Stock so purchased, together with any
other securities or property to which the Holder hereof is entitled upon such
exercise, shall be delivered, free of any legends except as provided in the
Purchase Agreement, to the Holder hereof by the Company at the Company's expense
as soon as practicable but, in any event, within three (3) trading days, after
the rights represented by this Warrant have been so exercised. In case of the
purchase of less than all the shares which may be purchased under this Warrant,
the Company shall cancel this Warrant upon its surrender and execute and deliver
a new Warrant or Warrants of like tenor for the balance of the shares
purchasable under the Warrant surrendered upon such purchase to the Holder
hereof as soon as practicable but within said three (3) day period. Each stock
certificate so delivered shall be in such denominations of Common Stock as may
be requested by the Holder hereof and shall be registered in the name of such
Holder or such other name as shall be designated by such Holder, subject to the
limitations contained in Section 10.
1.2 Buy-In. In addition to any other rights available to the Holder, if the
Company fails to deliver to the Holder a certificate or certificates
representing the shares of Common Stock issuable upon exercise of the Warrant
(the "Warrant Stock") pursuant to an exercise by the third trading day after the
date of exercise, and if after such third trading day the Holder purchases (in
an open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Stock which the Holder
anticipated receiving upon such exercise (a "Buy-In"), then the Company shall
(i) pay in cash to the Holder the amount by which (x) the Holder's total
purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Warrant Stock that the Company was required to deliver to the Holder
in connection with the exercise at issue by (B) the closing bid price of the
Common Stock at the time of the obligation giving rise to such purchase
obligation and (ii) at the option of the Holder, reinstate the portion of the
Warrant and equivalent number of Warrant Stock for which such exercise was not
honored or deliver to the Holder the number of shares of Common Stock that would
have been issued had the Company timely complied with its exercise and delivery
obligations hereunder. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In.
2. Shares to be Fully Paid; Reservation of Shares. The Company covenants
and agrees that all shares of Common Stock which may be issued upon the exercise
of the rights represented by this Warrant shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees that
during the period
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within which the rights represented by this Warrant may be exercised, the
Company shall at all times have 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 authorized but unissued Common Stock, or other
securities and property, when and as required to provide for the exercise of the
rights represented by this Warrant. The Company shall take all such action as
may be necessary to assure that such shares of Common Stock may be issued as
provided herein without violation of any applicable law or regulation, or of any
requirements of any domestic securities exchange upon which the Common Stock may
be listed. The Company shall not take any action which would result in any
adjustment (pursuant to Section 4 hereof) of the Exercise Price if the total
number of shares of Common Stock issuable after such action, together with all
shares of Common Stock then outstanding and then issuable upon exercise of all
options and all similar rights and upon the conversion of all convertible
securities then outstanding would exceed the total number of shares of Common
Stock then authorized by the Company's articles of incorporation.
3. Exercise.
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3.1 Payment of Exercise Price. Payment of the Exercise Price may be made,
at the option of the Holder, (i) in cash or by check, (ii) by canceling all or a
portion of any indebtedness of the Company to the Holder, in an amount equal to
the aggregate Exercise Price of the shares of Common Stock then being acquired
by the Holder upon exercise of this Warrant, (iii) by a combination of cash and
cancellation of such indebtedness, or (iv) by electing a net issue exercise in
the manner described in Section 3.2 below.
3.2 Net Issue Exercise. In lieu of exercising this Warrant by payment of
the Exercise Price pursuant to Section 3.1 above, the Holder may elect to
convert this Warrant (the "Conversion Right"), in whole or in part, into the
number of shares of Common Stock calculated pursuant to the following formula,
by surrendering this Warrant and specifying the number of shares of Common Stock
which the Holder desires to convert:
X = Y (A - B)
---------
A
where: X = the number of shares of Common Stock to be
issued to the Holder;
Y = the number of shares of Common Stock
subject to this Warrant for which the
Conversion Right is being exercised;
A = the fair market value of one share of Common
Stock; and
B = the Exercise Price, as adjusted.
As used herein, the fair market value of one share of Common Stock shall
mean the closing price per share of the Company's Common Stock on the principal
securities exchange on which the Common Stock is then listed or admitted to
trading or, if not then listed or admitted to trading on any such exchange, on
the NASDAQ National Market System, or if not then listed or traded on the NASDAQ
National Market System, the average of the bid and offer price per share on
NASDAQ, in
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each case averaged over the ten (10) trading days consisting of the day
preceding the date upon which the Warrant is exercised and the nine (9)
consecutive trading days prior to such day. If at any time the Common Stock is
not listed or traded on any exchange or system, the current fair market value of
a share of Common Stock shall be the price per share which the Company could
obtain from a willing buyer (not a current employee, consultant or director) for
shares of Common Stock sold by the Company, as determined in good faith by the
Company's board of directors. Notwithstanding the preceding sentence, if the
Company shall become a party to a merger, acquisition or other consolidation
pursuant to which the Company is not the surviving entity, the current fair
market value of a share of Common Stock shall be deemed to be the value received
by the holders of the Company's Common Stock pursuant to such transaction.
In the event of any conversion of this Warrant, certificates for the shares
of stock so converted shall be delivered to the Holder as soon as practicable
but, in any event, within three (3) days thereafter and, unless this Warrant has
been fully converted or has expired, a new Warrant representing the portion of
the shares, if any, with respect to which this Warrant shall not have been
converted, shall also be issued to the Holder as soon as practicable but within
such three (3) day period.
4. Adjustment of Exercise Price and Number of Shares. The Exercise Price
and/or the number and kind of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 4.
4.1 Subdivision or Combination of Stock. In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a greater number of
shares, the number of shares purchasable hereunder shall be proportionately
increased and the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced and, conversely, in case the outstanding shares
of Common Stock of the Company shall be combined into a smaller number of
shares, the number of shares purchasable hereunder shall be proportionately
reduced and the Exercise Price in effect immediately prior to such combination
shall be proportionately increased.
4.2 Dividends or Distributions in Common Stock, Other Stock, or Property.
If at any time or from time to time the holders of Common Stock (or any shares
of capital stock or other securities at the time receivable upon the exercise of
this Warrant) shall have received or become entitled to receive, without payment
therefore,
(a) Common Stock or any shares of stock or other securities which are at
any time directly or indirectly convertible into or exchangeable for Common
Stock, or any rights or options to subscribe for, purchase or otherwise acquire
any of the foregoing by way of dividend or other distribution,
(b) any cash paid or payable otherwise than as a regular periodic cash
dividend at a rate which is substantially consistent with past practice (or, in
the case of an initial dividend, at a rate which is substantially consistent
with industry practice), or
(c) Common Stock or other or additional capital stock or other securities
or property (including cash) by way of spin-off, split-up, or similar corporate
distribution (other than
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shares of Common Stock issued as a stock split, adjustments in respect of
which shall be covered by the terms of Section 4.1 above),
then and in each such case, the Holder hereof shall, upon the exercise of
this Warrant, be entitled to receive, in addition to the number of shares of
Common Stock receivable thereupon, and without payment of any additional
consideration thereof, the amount of stock and other securities and property
(including cash in the cases referred to in clauses (b) and (c) above) which
such Holder would hold on the date of such exercise had it been the holder of
record of such Common Stock as of the date on which holders of Common Stock
received or became entitled to receive such shares and/or all other additional
capital stock and other securities and property.
4.3 Reorganization, Reclassification, Consolidation or Merger. If, at any
time while this Warrant is outstanding, (i) the Company effects any merger or
consolidation of the Company with or into another entity, (ii) the Company
effects any sale of all or substantially all of its assets in one or a series of
related transactions, (iii) any tender offer or exchange offer (whether by the
Company or another entity) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (iv) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a "Fundamental Transaction"), then the Holder shall have the
right thereafter to receive, upon exercise of this Warrant, the same amount and
kind of securities, cash or property as it would have been entitled to receive
upon the occurrence of such Fundamental Transaction if it had been, immediately
prior to such Fundamental Transaction, the holder of the number of Warrant Stock
then issuable upon exercise in full of this Warrant (the "Alternate
Consideration"). The aggregate Exercise Price for this Warrant will not be
affected by any such Fundamental Transaction, but the Company shall apportion
such aggregate Exercise Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of the
Alternate Consideration. If holders of Common Stock are given any choice as to
the securities, cash or property to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder's request, any successor to the Company or surviving
entity in such Fundamental Transaction shall issue to the Holder a new warrant
consistent with the foregoing provisions and evidencing the Holder's right to
purchase the Alternate Consideration for the aggregate Exercise Price upon
exercise thereof. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor or
surviving entity to comply with the provisions of this paragraph (c) and
ensuring that the Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
If any Fundamental Transaction constitutes or results in a change of control of
the Company, then at the request of the Holder delivered before the 90th day
after such Fundamental Transaction, the Company (or any such successor or
surviving entity) will purchase the Warrant from the Holder for a purchase
price, payable in cash within five trading days after such request (or, if
later, on the effective date of the Fundamental Transaction), equal to the value
of the Warrant on the effective date of the Fundamental Transaction, determined
using a Black Scholes valuation model and assumptions reasonably mutually
acceptable to the Company and Holder, provided that for purposes of such
calculation, the market price of the Common Stock shall be the higher of the
closing price on trading day immediately preceeding or the
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closing price on the trading day immediately following the public
announcement of such Fundamental Transaction, and in no event will the
volatility factor be greater than fifty percent (50%). For purposes of this
Section 4.3, "change of control" means a sale of all or substantially all of the
assets of the Company or a consolidation or merger of the Company into or with
any entity or entities after which the holders of capital stock of the Company
hold less than fifty percent (50%) of the aggregate outstanding voting
securities of the surviving entity.
4.4 Additional Shares. The number of shares purchasable upon the exercise
of this Warrant shall be subject to increase from time to time in accordance
with the provisions of Section 6.3(b) of the Purchase Agreement upon the
occurrence of certain events as set forth in that section.
4.5 Sale or Issuance Below Warrant Price.
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(a) Adjustment to Warrant Price. The "Warrant Price" shall initially be
equal to the Fair Market Value, as defined in the Purchase Agreement, and shall
be subject to adjustment and readjustment from time to time, as required by this
Section 4.5. If the Company shall at any time or from time to time issue or sell
any of its Common Stock, convertible preferred stock, warrants, options, or any
other rights or securities convertible into or exchangeable for Common Stock for
a consideration per share less than the Warrant Price in effect immediately
prior to the time of such issue or sale (excluding certain securities as
described below), the Warrant Price shall be reduced concurrently with such
issue or sale to a price (calculated to the nearest tenth of a cent) determined
by dividing (A) the number of shares of Common Stock Outstanding immediately
prior to such issue or sale multiplied by the Warrant Price plus (B) the
aggregate consideration received for such issue or sale, by the number of shares
of Common Stock Outstanding immediately after such issue or sale.
The Exercise Price shall also be concurrently reduced to a price
(calculated to the nearest tenth of a cent) determined by multiplying 1.25 by
the reduced Warrant Price.
The number of shares of Common Stock "outstanding" as used in the foregoing
calculation shall mean the number of shares of Common Stock issued and
outstanding plus the number of shares of Common Stock issuable upon (x) the
exercise of all outstanding options and warrants to purchase Common Stock and
(y) the conversion of all outstanding convertible preferred stock, convertible
debentures, or any other rights or securities convertible into or exchangeable
for Common Stock.
(b) Exceptions to Adjustment of the Warrant Price. No adjustment to the
Warrant Price or the Exercise Price shall be made under this Section 4.5 as a
result of any grant or issuance by the Company of any rights or securities
approved by the Company's board of directors in good faith, as follows:
(i) Any grant or exercise of any shares of Common Stock issued to
employees, officers and directors of or consultants to the Company pursuant
to any stock option plan, employee stock purchase plan or similar plan or
incentive arrangement approved by the Company's board of directors;
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(ii) Any options, warrants or other convertible securities or rights
or agreements to purchase securities of the Company outstanding on the date
hereof; (iii) Any underwritten public offerings of the equity securities of
the Company (excluding any equity line of credit);
(iv) Any equity securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or other similar business
combination;
(v) Any equity securities issued in connection with any stock split,
stock dividend or recapitalization of the Company;
(vi) Any equity securities of the Company issued in connection with
strategic transactions involving the Company and other entities in a
similar or complementary business of the Company, such as, but not limited
to, joint ventures, manufacturing, marketing or distribution agreements,
technology transfer agreements, research and development agreements;
provided that, in each case, the primary purpose of such transaction is not
the raising of capital for the Company and the primary business purpose of
such other entity is not investing in securities;
(vii) Any equity securities of the Company issued pursuant to any
equipment leasing arrangement or debt financing from a bank or other
financial institution; provided that, in each case, the primary business
purpose of such other entity is not investing in securities; and
(viii) Any shares of Common Stock issued upon the exercise of this
Warrant or any similar warrant issued pursuant to the Purchase Agreement.
(c) Other Factors. No adjustment shall be made under this Section 4.5 upon
the issuance of any additional shares of Common Stock which are issued pursuant
to the exercise of any options or warrants or other rights or the conversion of
any convertible securities if any adjustment shall previously have been made
upon the issuance of any such options, warrants or rights or the conversion of
any convertible securities as provided above. If the maximum number of shares of
Common Stock otherwise issuable or deemed issued for purposes of this Section 4
upon the exercise of any options, warrants, convertible securities or other
rights or agreements is not in fact issued and the remaining portion of such
options, warrants, convertible securities or other rights or agreements expires
or otherwise terminates, then the Exercise Price of this Warrant, as previously
adjusted pursuant to this Section 4.5, shall be readjusted as if such expired or
terminated portions had not been considered issuable or deemed issued for
purposes of this Section 4.5. In the case of the issuance or deemed issuance of
shares of Common Stock for a consideration other than cash, the consideration
received by the Company therefor shall be deemed to be the fair value of such
consideration as determined in good faith by the Company's board of directors.
4.6 Limitations on Exercise.
------------------------
(a) Notwithstanding anything to the contrary contained herein, the number
of shares of Common Stock that may be acquired by the Holder upon any exercise
of this Warrant (or otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the total
number of shares of Common Stock then beneficially owned
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by such Holder and its Affiliates (as defined in Rule 501(b) of Regulation
D under the Securities Act) under Section 13(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), does not exceed 4.999% of the total
number of issued and outstanding shares of Common Stock (including for such
purposes the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation
by the Holder that it has evaluated the limitation set forth in this paragraph
and determined that the issuance of the full number of shares of Common Stock to
be issued as requested in such Exercise Notice is permitted under this
paragraph. The Company's obligation to issue shares of Common Stock in excess of
the limitation referred to in this Section shall be suspended (and shall not
terminate or expire notwithstanding any contrary provisions hereof) until such
time, if any, as such shares of Common Stock may be issued in compliance with
such limitation. By written notice to the Company, the Holder may waive the
provisions of this Section but (i) any such waiver, including such increase in
shares, will not be effective until the 61st day after such notice is delivered
to the Company, and (ii) any such waiver will apply only to the Holder and not
to any other holder of Warrants.
(b) Notwithstanding anything to the contrary contained herein, the number
of shares of Common Stock that may be acquired by the Holder upon any exercise
of this Warrant (or otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the total
number of shares of Common Stock then beneficially owned by such Holder and its
Affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act)
under Section 13(d) of the Securities Exchange Act, does not exceed 9.999% of
the total number of issued and outstanding shares of Common Stock (including for
such purposes the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Each delivery of an Exercise Notice hereunder will constitute a representation
by the Holder that it has evaluated the limitation set forth in this paragraph
and determined that the issuance of the full number of shares of Common Stock to
be issued as requested in such Exercise Notice is permitted under this
paragraph. The Company's obligation to issue shares of Common Stock in excess of
the limitation referred to in this Section shall be suspended (and shall not
terminate or expire notwithstanding any contrary provisions hereof) until such
time, if any, as such shares of Common Stock may be issued in compliance with
such limitation. By written notice to the Company, the Holder may waive the
provisions of this Section but (i) any such waiver, including such increase in
shares, will not be effective until the 61st day after such notice is delivered
to the Company, and (ii) any such waiver will apply only to the Holder and not
to any other holder of Warrants.
4.7 Notice of Adjustment. Upon any adjustment of the Exercise Price, and/or
any increase or decrease in the number of shares purchasable upon the exercise
of this Warrant, the Company shall issue a certificate prepared by the Company's
chief financial officer, stating the Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, and setting forth
in reasonable detail the method of calculation and the facts upon which such
calculation is based. The Company shall send a copy of such certificate to the
Holder of this Warrant, by first class mail, postage
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prepaid, at the address of such Holder as shown on the books of the
Company, promptly after the occurrence of the event triggering an adjustment
under this Section 4.
4.8 Other Notices. If at any time:
(a) the Company shall declare any cash dividend or distribution upon
shares of its Common Stock;
(b) the Company shall declare any dividend upon its Common Stock
payable in stock or make any special dividend or other distribution to the
holders of its Common Stock;
(c) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other
rights, or shall offer any of its securities pursuant to a public offering;
(d) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with or into, or sale of all or substantially all of its assets to, another
corporation;
(e) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company; or
(f) the Company shall take or propose to take any other action, notice of
which is actually provided (or is required to be provided, pursuant to any
written agreement) to holders of Common Stock;
then, in any one or more of said cases, the Company shall give, by first
class mail, postage prepaid, addressed to the Holder of this Warrant at the
address of such Holder as shown on the books of the Company, written notice
setting forth the principal terms of such event (i) at least twenty (20) days
prior to the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution or subscription rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, or other action described in clause (f) above and (ii) in the case
of any such public offering, reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, or other action described
in clause (f) above at least twenty (20) days prior to the date when the same
shall take place. Any notice given in accordance with the foregoing clause (i)
shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock shall be
entitled thereto. Any notice given in accordance with the foregoing clause (ii)
shall also specify the approximate date after which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale dissolution, liquidation or winding-up, or other action described
in clause (f) above, as the case may be.
5. Cash Dividends. If the Company, at any time while this Warrant or any
portion hereof remains outstanding and unexpired, shall pay or elect to pay or
declare and set apart for
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payment a regular periodic cash dividend on any shares of Common Stock, the
Holder of this Warrant shall be entitled to receive such dividend as if this
Warrant had then been exercised.
6. Issue Tax. The issuance of certificates for shares of Common Stock upon
the exercise of this Warrant shall be made without charge to the Holder of this
Warrant for any issue 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 then Holder of the Warrant being exercised.
7. Closing of Books. 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 during normal business
hours which interferes with the timely exercise of this Warrant.
8. No Voting Rights; Limitation of Liability. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof the right to
vote or to consent as a shareholder in respect of meetings of shareholders for
the election of directors of the Company or any other matters or any rights
whatsoever as a shareholder of the Company. No provisions hereof, in the absence
of affirmative action by the Holder to purchase shares of Common Stock, and no
mere enumeration herein of the rights or privileges of the Holder hereof, shall
give rise to any liability of such holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by the Company or
by its creditors.
9. Registration Rights. The Holder hereof shall be entitled to the
registration rights set forth in the Purchase Agreement.
10. Transferability of Securities.
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10.1 Transferability. The Warrant and Warrant Stock shall be transferable,
in whole or in part, without charge to the Holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed and upon delivery of
the Assignment in substantially the form attached hereto as Exhibit B, subject
to the conditions specified in this Section 10 and by any applicable
restrictions set forth in Section 6.3 of the Purchase Agreement, which
conditions and restrictions are intended to insure compliance with the
provisions of the Securities Act. Each Holder will cause any proposed transferee
of the Warrant or Warrant Stock to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 10
and by the restrictions set forth in the Purchase Agreement if and to the extent
that such securities continue to be restricted securities in the hands of the
transferee. Each taker and Holder of this Warrant, by taking or holding the
same, consents and agrees that this Warrant, when endorsed in blank, shall be
deemed negotiable, and that the Holder hereof, when this Warrant shall have been
so endorsed, may be treated by the Company and all other persons dealing with
this Warrant as the absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented by this Warrant; but until the
transfer hereof on the books of the Company, the Company may treat the
registered owner hereof as the owner for all purposes.
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10.2 Restrictive Legend and Restrictions on Transfer. The Warrant and
Warrant Stock shall be subject to the legend requirements and restrictions on
transfer as set forth in the Purchase Agreement.
10.3 Rights and Obligations Survive Exercise of Warrant. The rights and
obligations of the holder of the Warrant Stock contained in this Section 10 and
the Purchase Agreement shall survive the exercise of this Warrant.
11. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
12. Notices. Any notice, request or other document required or permitted to
be given or delivered to the Holder hereof or the Company shall be delivered or
shall be sent by certified or registered mail, postage prepaid, to each such
Holder at its address as shown on the books of the Company or to the Company at
the address indicated in the first paragraph of this Warrant or shall be sent by
facsimile transmission to any number provided by a Holder or the Company for the
purpose of this Section 12.
13. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets. All of the obligations of the
Company relating to the Warrant Stock shall survive the exercise and termination
of this Warrant. All of the covenants and agreements of the Company shall inure
to the benefit of the successors and assigns of the Holder hereof.
14. Descriptive Headings and Governing Law. The descriptive headings of the
several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant.
15. Governing Law and Forum. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law provisions thereof, and the federal law of the
United States of America. The parties hereto agree to submit to the exclusive
jurisdiction of the federal and state courts of the State of New York with
respect to the interpretation of this Warrant or for the purposes of any action
arising out of or related to this Warrant.
16. Lost Warrants or Stock Certificates. The Company represents and
warrants to the Holder hereof that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant or stock certificate and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company at its expense will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
17. Fractional Shares. No fractional shares shall be issued upon exercise
of this Warrant. The Company shall, in lieu of issuing any fractional share, pay
to the Holder entitled to such fraction
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a sum in cash equal to such fraction multiplied by the then fair market
value of a share of Common Stock, which shall be determined in accordance with
the provisions of Section 3 of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
and delivered by its officers, thereunto duly authorized as of December ___,
2001.
COMPANY:
TRIMBLE NAVIGATION LIMITED
By: __________________________________
Print Name: ___________________________
Title: ________________________________
ACKNOWLEDGED AND AGREED:
HOLDER:
____________________________________
By: ________________________________
Print Name: ________________________
Title: _____________________________
Address: ___________________________
___________________________
___________________________
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EXHIBIT A
FORM OF SUBSCRIPTION
(To be signed only upon exercise of warrant)
TO: Chief Financial Officer
Trimble Navigation Limited
645 North Mary Avenue
Sunnyvale, California 94088
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
thereunder:
(a) purchase _____________ shares of the Common Stock of Trimble Navigation
Limited and herewith tenders full payment of $________________,
representing the full purchase price for such shares at the Exercise Price
per share provided for in such Warrant;
(Leave blank if you choose the second alternative below.)
or
(b) effect Conversion Right provisions as provided for in Section 3 of the
Warrant with respect to _______________ shares otherwise exercisable
pursuant to the Warrant and receive that number of shares of Common Stock
of Trimble Navigation Limited as determined in accordance with terms of the
Conversion Right provided for in the Warrant, in lieu of exercising the
attached Warrant for cash, check or consideration as provided for in
Section 3 of the Warrant.
(Initial here if the undersigned elects this second alternative. _______)
The undersigned represents that it is acquiring such Common Stock for its
own account for investment and not with a view to or for sale in connection with
any distribution thereof (subject, however, to any requirement of law that the
disposition thereof shall at all times be within its control).
Dated: ___________________
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
_______________________________________
_______________________________________
_______________________________________
(Address)
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EXHIBIT B
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, the holder of the within Warrant,
hereby sells, assigns and transfers all of the rights of the undersigned under
the within Warrant, with respect to the number of shares of Common Stock covered
thereby set forth hereinbelow, unto:
Name of Assignee(s) Address No. of Shares
Dated: ___________________
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
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