EXHIBIT 4.4
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.
FORM OF 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 March 12, 2003 (it
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 & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
Attn: Alvin G. Segel, Esq.
If to Company:
Novatel Wireless, Inc.
9360 Towne Centre Drive, Suite 110
San Diego, California
Attn: Peter Leparulo, Chief Executive Officer
With a copy to:
Latham & Watkins LLP
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071
Attn: J. Scott Hodgkins, 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: /s/ Peter V. Leparulo
Name: Peter V. Leparulo
Title: Chief Executive Officer
By: /s/ Melvin L. Flowers
Name: Melvin L. Flowers
Title: Sr. V.P. Finance, and CFO
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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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