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EXHIBIT 10.13
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ("WARRANTS") AND THE UNDERLYING
WARRANT SHARES ("WARRANT SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE WARRANTS MAY NOT BE
EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON, THE WARRANTS AND WARRANT SHARES
MAY NOT BE OFFERED OR SOLD TO ANY U.S. PERSON, THE WARRANTS MAY NOT BE EXERCISED
IN THE UNITED STATES (EXCEPT AS PERMITTED BY REGULATION S), AND THE WARRANT
SHARES MAY NOT BE DELIVERED IN THE UNITED STATES, UNLESS, IN EACH CASE, THE
WARRANTS AND WARRANT SHARES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE, AS EVIDENCED BY AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
PLEDGED, HYPOTHECATED OR ENCUMBERED EXCEPT UNDER THE LAWS OF DESCENT AND
DISTRIBUTION OR BY OPERATION OF LAW.
WARRANTS TO PURCHASE COMMON STOCK
MICROTEL INTERNATIONAL, INC., a Delaware corporation (the "Company")
hereby grants to __________________________________________ (the "Holder")
_____________________ (____) non-transferable warrants (the "Warrants") for the
purchase of common stock of the Company (the "Common Stock"), with each whole
Warrant entitling the Holder to purchase one share of Common Stock (each a
"Warrant Share" and collectively the "Warrant Shares") on the terms and subject
to the conditions set forth herein. The Warrants have been issued pursuant to a
Subscription Agreement dated for reference purposes as of March 21, 1997 entered
into between the Holder and the Company (the "Subscription Agreement") and as
part of a larger private offering by the Company described in that certain
Confidential Offering Memorandum of the Company dated March 21, 1997.
1. TERM. The Warrants may be exercised, in whole or in part, at any
time and from time to time from the date hereof until 5:00 Pacific Time on April
__, 2000 (the "Exercise Period").
2. EXERCISE PRICE. The initial exercise price of each whole Warrant
shall be $3.45 (the "Exercise Price"). The Exercise Price shall be subject to
adjustment as provided in Section 10.
3. EXERCISE OF WARRANTS. The Warrants are exercisable on the terms
provided herein at any time during the Exercise Period by the surrender of this
certificate to the Company at its principal office together with the Notice of
Exercise annexed hereto duly completed and executed on behalf of the Holder,
accompanied by payment in full, in immediately available funds, of the amount of
the aggregate Exercise Price of the Warrant Shares being purchased upon such
exercise. The Holder shall be deemed the record owner of such Warrant Shares as
of and from the close of business on the date on which this certificate is
surrendered together with the completed Notice of Exercise and payment in full
as required above (the "Exercise Date"). The Company agrees that the Warrant
Shares so purchased shall be issued as soon as practicable
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thereafter. It shall be a condition to the exercise of the Warrants that the
Holder or any transferee hereof certify to the Company, at the time of exercise,
either that the Holder is not a U.S. person (as defined in Regulation S under
the Securities Act of 1933, as amended (the "Securities Act")) and that the
Warrants are not being exercised on behalf of a U.S. person, or to provide an
opinion of counsel reasonably satisfactory to the Company that the Warrants and
the Warrant Shares to be delivered upon exercise thereof have been registered
under the Securities Act or that an exemption from the registration requirements
of the Securities Act is available. It shall be a further condition to the
exercise of the Warrants that the Warrants may not be exercised in the United
States and the Warrant Shares may not be delivered in the United States absent
registration under the Securities Act or an available exemption from
registration, unless otherwise permitted by Regulation S.
4. FRACTIONAL INTEREST. In lieu of issuing fractional shares of Common
Stock upon exercise of the Warrants, the Company may pay the Holder a cash
amount determined by multiplying the fraction of a share otherwise issuable by
the Fair Market Value of one share of Common Stock. For this purpose, "Fair
Market Value" means the average closing sale price for the ten trading days
immediately preceding the Exercise Date or, if there is no last-sale reporting
for the Common Stock at such time, then the value as determined in good faith by
the Board of Directors of the Company.
5. WARRANTS CONFER NO RIGHTS OF STOCKHOLDER. The Holder shall not have
any rights as a stockholder of the Company with regard to the Warrant Shares
prior to the Exercise Date for any actual purchase of Warrant Shares.
6. REDEMPTION. The Warrants may be redeemed by the Company at any time
for cash at the price of $.05 per Warrant, provided that (i) the Warrant Shares
have been registered for resale pursuant to the Securities Act, (ii) written
notice of the redemption (the "Redemption Notice") is delivered by the Company
to the Holder not less than 30 days prior to the date of redemption (the
"Redemption Date"), and (iii) the last sale price of the Common Stock on the
Nasdaq SmallCap Market or National Market System, or on a national securities
exchange in the United States, for ten consecutive trading days is equal to or
exceeds 150% of the Exercise Price of the Warrants (as adjusted). Following
delivery of the Redemption Notice, the Holder may continue to exercise the
Warrants in whole or in part on the terms provided herein until the last
business day prior to the Redemption Date.
7. INVESTMENT REPRESENTATION. Neither the Warrants nor the Warrant
Shares issuable upon the exercise of the Warrants have been registered under the
Securities Act or any state securities laws. The Holder acknowledges by
acceptance of this certificate that, as of the date of this Warrant and at the
time of exercise, (a) the Holder has acquired the Warrants or the Warrant
Shares, as the case may be, for investment and not with a view to distribution;
and either (b) the Holder has a pre-existing personal or business relationship
with the Company or its executive officers, or by reason of the Holder's
business or financial experience the Holder has the capacity to protect the
Holder's own interests in connection with the transaction; and (c) the Holder is
an accredited investor as that term is defined in Rule 501(a) of Regulation D
under the Securities Act. The Holder agrees, by acceptance of this certificate,
that any Warrant Shares purchased upon exercise of the Warrants may have to be
held indefinitely, until registered and qualified for resale pursuant to Section
8, or until an exemption from registration is available, as
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evidenced by an opinion of counsel reasonably satisfactory to the Company. The
Holder, by acceptance of this certificate, consents to the placement of a
restrictive legend (the "Legend") on the certificates representing any Warrant
Shares that are purchased upon exercise of the Warrants during the applicable
restricted period under Regulation S or any other applicable restricted period
under the Securities Act. The Legend shall be in substantially the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SHARES") HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS ("STATE LAWS") OR
ANY SECURITIES LAWS OF JURISDICTIONS OUTSIDE OF THE UNITED STATES, AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A "U.S. PERSON," AS THAT TERM IS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT, EXCEPT (1) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT
COVERING THE SECURITIES, OR (2) UPON DELIVERY TO THE COMPANY OF AN
OPINION OF U.S. COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE
SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION PURSUANT TO (A) RULE
144, RULE 144A, OR RULE 904 OF REGULATION S PROMULGATED UNDER THE
SECURITIES ACT OR (B) ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES
ACT.
8. REGISTRATION RIGHTS. The Warrant Shares which are purchasable upon
exercise of the Warrants are entitled to the registration rights which are set
forth in Section 9 of the Subscription Agreement.
9. RESERVATION OF SHARES. The Company agrees that, at all times during
the Exercise Period, the Company will have authorized and reserved, for the
exclusive purpose of issuance and delivery upon exercise of the Warrants, a
sufficient number of shares of its Common Stock to provide for the issuance of
the Warrant Shares.
10. ADJUSTMENT FOR CHANGES IN CAPITAL STOCK. If the Company at any time
during the Exercise Period shall, by subdivision, combination or
reclassification of securities, change any of the securities into which the
Warrants are exercisable into the same or a different number of securities of
any class or classes, the Warrants shall thereafter entitle the Holder to
acquire such number and kind of securities as would have been issuable as a
result of such change with respect to the Warrant Shares if the Warrant Shares
had been outstanding immediately prior to such subdivision, combination, or
reclassification. If shares of the Company's Common Stock are subdivided into a
greater number of shares of Common Stock, the Exercise Price for the Warrant
Shares upon exercise of the Warrants shall be proportionately reduced and the
number of Warrant Shares shall be proportionately increased; and conversely, if
shares of the Company's Common Stock are combined into a smaller number of
shares of Common Stock, the Exercise Price shall be proportionately increased,
and the number of Warrant Shares shall be proportionately decreased.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF CERTIFICATE. Upon receipt
by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any certificate representing the Warrants or the
Warrant Shares (referred to herein as the "original
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certificate"), and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to the Company, and upon reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the original certificate if mutilated, the Company will make and
deliver a new certificate of like tenor in lieu of the original certificate.
12. ASSIGNMENT. The Warrants may not be transferred, sold, pledged,
hypothecated or encumbered except under the laws of descent and distribution or
by operation of law. The Warrants may not be exercised by or on behalf of any
U.S. person, the Warrants and Warrant Shares may not be offered or sold to any
U.S. person, the Warrants may not be exercised in the United States (except as
permitted by Regulation S), and the Warrant Shares may not be delivered in the
United States, unless, in each case, the Warrants and Warrant Shares have been
registered under the Securities Act or an exemption from such registration is
available, as evidenced by an opinion of counsel reasonably satisfactory to the
Company.
13. GENERAL. This certificate shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
between California residents entered into and to be performed entirely within
the State of California. The headings herein are for purposes of convenience and
reference only and shall not be used to construe or interpret the terms of this
certificate. The terms of this certificate may be amended, waived, discharged or
terminated only by a written instrument signed by both the Company and the
Holder. All notices and other communications from the Company to the Holder
shall be mailed by first-class registered or certified mail, postage pre-paid,
to the address furnished to the Company in writing by the last Holder who shall
have furnished an address to the Company in writing.
Dated: April __, 1997
MICROTEL INTERNATIONAL, INC.
By: /s/ Carmine T. Oliva
__________________________________________
(Authorized Signature)
President and CEO
__________________________________________
(Name and Title)
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NOTICE OF EXERCISE
To: MicroTel International, Inc. (the "Company")
1. The undersigned hereby elects to exercise a total of ___________
Warrants for the purchase of a like number of Warrant Shares, and tenders
herewith payment of the Exercise Price for such shares in full.
2. In exercising the Warrants, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired solely for the account
of the undersigned for investment, and that the undersigned will not offer, sell
or otherwise dispose of any of the Warrant Shares unless the Warrant Shares have
been registered under the Securities Act or an exemption from such registration
is available, as evidenced by an opinion of counsel reasonably satisfactory to
the Company.
3. The undersigned hereby certifies that either (i) the undersigned is
not a U.S. person (as such term is defined in Regulation S under the Securities
Act), or (ii) the undersigned has delivered to the Company an opinion of counsel
to the effect that the Warrants and the Warrant Shares have been registered
under the Securities Act or an exemption from such registration is available.
4. The undersigned further certifies that the Warrants are not being
exercised in the United States and understands and agrees that the Warrant
Shares may not be delivered in the United States, except as permitted by
Regulation S, absent registration under the Securities Act or an available
exemption from such registration.
5. Please issue a certificate representing the Warrant Shares in the
name of the Holder and deliver the certificate to the address set forth below.
6. Please issue a new certificate representing the unexercised portion
(if any) of the Warrants in the name of the Holder and deliver the certificate
to the address set forth below.
Dated: _____________________ ____________________________________________
(Name of Holder)
____________________________________________
(Authorized Signature)
Address for Delivery:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
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