Exhibit-99 COMMON STOCK PURCHASE WARRANT
This security and the Common Stock issuable thereby have not been registered
under the Securities Act of 1933, as amended, and has been and will be acquired
for investment and not with a view to distribution or resale, and may not be
sold, mortgaged, pledged, hypothecated or otherwise transferred without an
effective registration thereof, or an opinion of counsel reasonably satisfactory
to the Company and its counsel that registration is not required under such Act.
No. CSPW-1 October 30, 1997
KVH INDUSTRIES, INC.
Common Stock Purchase Warrant
This Common Stock Purchase Warrant (this "Warrant") evidences that, for
value received, Andrew Corporation, or assigns, is entitled, subject to the
terms set forth below, to purchase from KVH INDUSTRIES, INC., a Delaware
corporation (the "Company'), at any time or from time to time before 5:00 P.M.,
Rhode Island time, on October 30, 2002 (the "Expiration Date"), 50,000 fully
paid and nonassessable shares of Common Stock, par value $.01 per share, of the
Company, at a purchase price per share of eight dollars ($8.00) (such purchase
price per share as adjusted from time to time as herein provided is referred to
herein as the "Purchase Price"). The number and character of such shares of
Common Stock and the Purchase Price are subject to adjustment as provided
herein.
This Warrant is the Common Stock Purchase Warrant (the "Warrant")
evidencing the right to purchase shares of Common Stock of the Company issued in
connection with the closing of the transactions contemplated by Asset Purchase
Agreement of even date herewith between the Company and Andrew Corporation.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include KVH Industries, Inc. and any
corporation that shall succeed to, or assume, the obligations of the Company
hereunder.
(b) The term "Common Stock" includes (a) the Company's Common Stock, par
value $.01 per share, as authorized on -the date of this Warrant and (b) any
other securities into which or for which any of such Common Stock may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person (corporate or
otherwise) which the holders of this Warrant at any time shall be entitled to
receive, or shall have received, on the exercise of the Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common-non Stock or Other
Securities pursuant to section 5 or otherwise.
1. Exercise
1.1. Full Exercise. This Warrant may be exercised in full at any time on or
prior to the Expiration Date by the holder hereof by surrender of this Warrant,
with the form of subscription at the end hereof duly executed by such holder, to
the Company at its principal office, accompanied by payment, in cash or by
cashier's, certified or official bank check payable to the order of the Company,
in the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Purchase Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised in part by surrender
of this Warrant in the manner and at the place provided in subsection 1. 1
except that the amount payable by the holder on such partial exercise shall be
the amount obtained by multiplying (a) the number of shares of Common Stock
designated by the holder in the subscription at the end hereof by (b) the
Purchase Pr-ice then in effect. On any such partial exercise, the Company, at
its expense, will forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant in all respects identical hereto, in the name of the holder
hereof or as such holder (upon payment by such holder of any applicable transfer
taxes) may request, calling in the aggregate on the face thereof for the number
of shares of Common Stock for which such Warrant may still be exercised.
2. Deliver etc., on Execution
As soon as practicable after the exercise of this Warrant in full or in
part, and in any event within 5 business days thereafter, the Company will cause
to be issued in the name of and delivered to the holder hereof, or as such
holder (upon payment by such holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock or Other Securities, as applicable, to
which such holder shall be entitled on such exercise, and, in lieu of any
fractional share to which such holder would otherwise be entitled, the holder
shall receive cash equal to such fraction multiplied by the fair market value of
one share of Common-non Stock at the time of exercise computed to the nearest
whole cent.
3. Adjustment of Common Stock I
3. 1. Adjustment of Number-of Shares. Upon each adjustment of the Purchase
Price, the number of shares of Common Stock that the registered holder of this
Warrant shall be entitled to purchase at the Purchase Price resulting from the
adjustment shall be obtained by multiplying the Purchase Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Purchase Price resulting from such adjustment.
3.2. Adjustment of Purchase Price. The Purchase Price shall initially- be
eight dollars ($8) per share, shall be adjusted and readjusted from time to time
as provided in this section 3.2 and, as so adjusted or readjusted, shall remain
in effect until a further adjustment
or readjustment thereof is required by this section 3.2. The Purchase Price
shall be subject to adjustment as follows:
(a) Subdivision or Combination of Stock. In case the Company shall at any
time subdivide its outstanding common shares into a greater number of shares (by
way of dividend, split or otherwise), the Purchase Price in effect immediately
prior to the subdivision shall be proportionately reduced, and, in case the
outstanding common shares shall be combined into a smaller number of shares (by
way of reverse split or otherwise), the Purchase Price in effect immediately
prior to the combination shall be proportionately increased.
(b) Reorganization or Reclassification. If any reorganization or
reclassification of the capital stock of the Company shall be effected in such a
way (including, without limitation, by way of consolidation or merger or a sale
of all or substantially all its assets) that holders of common shares shall be
entitled to receive stock, securities or assets with respect to or in exchange
for common-non shares, then, as a condition of the reorganization or
reclassification, lawful and adequate provisions shall be made whereby the
holder of this Warrant shall thereafter have the right to receive, in lieu of
the common shares of the Company theretofore receivable upon the conversion of
such shares, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of common shares equal to
the number of common shares theretofore so receivable had the reorganization or
reclassification not taken place, and in any such case appropriate provision
shall be made with respect to the rights and interests of the holder to the end
that the provisions of this Section 3 shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of those conversion rights. In the event of a
i-merger or consolidation of the Company as a result of which a greater or
lesser number of common shares of the surviving corporation are issuable to
holders of common shares of the Company outstanding immediately prior to the
merger or consolidation, the Purchase Price in effect immediately prior to the
merger or consolidation shall be adjusted in the same manner as though there
were a subdivision or combination of the Outstanding common-non shares of the
Company in accordance with Section 3.2(a).
(c) Certain Dividends. In case the Company shall declare a dividend upon
the Common Stock payable otherwise than Out of earnings or surplus (other than
paid-in surplus) or otherwise than in Common Stock or a security convertible
into or exchangeable for Common Stock, the Purchase Price in effect immediately
prior to the declaration of such dividend shall be reduced by an amount equal,
in the case of a dividend in cash, to the amount thereof payable per share of
the Common Stock or, in the case of any other dividend, to the fair value
thereof per share of the Common Stock as determined in good faith by or pursuant
to the directions and authorization of the Board of Directors of the Company.
For the purposes of the foregoing, a dividend other than in cash shall be
considered payable out of earnings or surplus (other than paid-in surplus) only
to the extent that such earnings or surplus are charged an amount equal to the
fair value of such dividend as determined in good faith by or pursuant to the
directions and authorization of the Board of Directors of the Company. Such
reductions shall take effect as of the date on which a record is taken for the
purpose of such dividend, or, if a record is not taken, the date as of which the
holders of Common Stock of record entitled to such dividend are to be
determined.
3.4 Notice of Adjustment. Upon any adjustment of the Purchase Price or the
number of shares of Common Stock or Other Security to be issued, as applicable,
then in each such case the Company shall give written notice thereof, by first
class mail, postage prepaid, addressed to the registered holder of this Warrant
at the address of such holder as shown on the records of the Company, which
notice shall state the Purchase Price or the number of shares of Common Stock or
Other Security to be issued, as applicable, resulting from such adjustment,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. A copy of such notice shall also be filed
promptly by the Company with the transfer agent (if other than the Company) for
the Common Stock.
4. Registration of Stock. The Company covenants and agrees that all shares
which may be issued upon the exercise of this Warrant will, upon issuance, be
legally and validly issued, fully paid, and nonassessable and free from all
taxes, liens, and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which this Warrant may be
converted, the Company will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the exercise of
this Warrant in full.
5. Notice of Capital Change. In case:
(1) the Company shall declare a dividend on its Common Stock payable in
shares of its capital stock; or
(2) the Company shall authorize the issuance to all holders of its Common
Stock of rights or warrants to subscribe for or purchase shares of its Common
Stock or of any other subscription rights or warrants; or
(3) the Company shall authorize the distribution to all holders of its
Common Stock of evidences of its indebtedness or other property (other than cash
dividends paid out of retained earnings), or
(4) the Company shall fix a record date for approval of any subdivision,
combination, recapitalization or reclassification of its Common-non Stock, or of
any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale,
transfer or other disposition of all or substantially all of the assets of the
Company; or
(5) the Company shall fix a record date for approval of the voluntary or
involuntary dissolution, liquidation or winding up of the Company; or
(6) the Company proposes to take any action (other than any referred to
above) which would require an adjustment of the number of shares of Common Stock
issuable upon exercise of this Warrant and the Purchase Price therefor pursuant
to the provisions of Section 3 above; or
(7) the Company shall receive notice or become aware of any purchase,
tender or exchange offer for shares of Common Stock; then, the Company shall
give the registered holder of this Warrant written notice, by registered mail,
postage prepaid, in each of said cases other than clause (7) above, of the date
on which (i) a record shall be taken for such dividend, distribution or
subscription rights or (ii) such subdivision, combination, recapitalization,
reclassification, consolidation, merger, sale, transfer, disposition,
dissolution, liquidation or winding up shall take place, as the case may be,
and, in the case of clause (7) above, containing the information communicated by
the Company to the holders of its Common Stock with respect to such purchase,
tender or exchange offer. Such notice shall also specify the date as of which
the holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such subdivision,
combination, recapitalization, reclassification, consolidation, merger, sale,
transfer, disposition, dissolution, liquidation or winding up, as the case may
be. Such written notice shall be given at least twenty (20) days prior to the
action in question and not less than ten (10) days prior to the record date in
respect thereof or, in the case of clause (7) above, at such time as the Company
communicates in writing to the holders of its Common Stock the existence of such
purchase, tender or exchange offer.
6. 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 any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of this Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
7. Transfer of Warrant. This Warrant is issued upon the following terms, to
all of which each holder or owner hereof by the taking hereof -consents and
agrees:
(a) (i)- title to this Warrant may be transferred by endorsement (by the
holder hereof executing the form of assignment at the end hereof) and delivery
in the same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(ii) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a bona fide
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or fights in this Warrant in favor of each such bonafide
purchaser, and each such bona fide purchaser shall acquire absolute title hereto
and to all rights represented hereby;
(iii) until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
(b) The holder of the Warrant agrees that it will neither (i) transfer the
Warrant prior to delivery to the Company of the opinion of counsel referred to
in, and to the effect described in, subsection (c) hereof, or until registration
hereof under the Securities Act of 1933, as amended (the "Securities Act"), and
any applicable state securities or blue sky laws has become effective, nor (ii)
transfer the shares of Common Stock into which the Warrant was exercised prior
to delivery to the Company of the opinion of counsel referred to in, and to the
effect described in, subsection (c) hereof, or until registration of such shares
under the Securities Act and any applicable state securities or blue sky laws
has become effective.
(c) Except as otherwise expressly provided herein, by its acceptance hereof
the holder of the Warrant agrees that, prior to any transfer of the Warrant,
such holder will deliver to the Company a statement setting forth the intention
of such holder's prospective transferee with respect to its retention or
disposition of the Warrant together with a signed copy of the opinion of such
holder's counsel, to the effect that the proposed transfer of the Warrant i-nay
be effected without registration under the Securities Act and any applicable
state securities or blue sky laws. The holder of the Warrant shall then be
entitled to transfer the Warrant in accordance with the statement of intention
delivered by such holder to the Company.
(d) Notwithstanding any provisions contained in this Warrant to the
contrary, the sale or transfer of any shares of Common Stock into which the
Warrant may be exercised shall be subject to the provisions of the Registration
Rights Agreement.
8. Notices, etc. All notices and other communications from Company to the
holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
9. Miscellaneous. This Warrant contains the entire agreement between the
holder hereof and the Company with respect to the Common Stock purchasable
hereunder. This Warrant and any term hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. This
Warrant shall be construed and enforced in accordance with and governed by the
laws of the State of Delaware. The headings in this Warrant are for purposes of
reference only, and shall not Iii-nit or otherwise affect any of the terms
hereof. The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision.
KVH INDUSTRIES, INC.
By:/s/ Richard C. Forsyth
Authorized Officer
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO KVH INDUSTRIES, INC.
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, shares of
Common Stock of KVH INDUSTRIES, INC. and herewith payment of $ therefor, and
requests that the certificates for such shares be issued in the name of, and
delivered to whose address is
Dated:
(Signature must conform-n to name of holder as specified on the face of the
Warrant)
Address
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto the right represented by the within Warrant to purchase shares of Common
Stock of KVH INDUSTRIES, INC. to which the within Warrant relates, and appoints
Attorney to transfer such right on the books of KVH INDUSTRIES, INC. with full
power of substitution in the premises.
Dated:
(Signature must conform to name of holder as specified on the face of the
Warrant)