Exhibit 10.48
PALM, INC.
WARRANT FOR THE PURCHASE OF
SHARES OF
COMMON STOCK OF PALM,
INC.
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No.
[ —
]
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Warrant to Purchase
[ —
] Shares
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THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR
ANY NON-U.S. OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.
THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, VOTING AND OTHER MATTERS AS SET FORTH IN THE AMENDED AND
RESTATED STOCKHOLDERS’ AGREEMENT, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM THE COMPANY OR ANY SUCCESSOR
THERETO.
FOR VALUE RECEIVED,
Palm, Inc., a Delaware corporation
(the “ Company ”), hereby certifies that
[ —
], its successor or permitted
assigns (the “ Holder ”), is entitled, subject
to the provisions of this Warrant, to purchase from the Company, at
the times specified herein, up to an aggregate of [
—
] fully paid and non-assessable
shares of Common Stock, par value $0.001 per share, of the Company
(the “ Common Stock ”), at a purchase price per
share of Common Stock equal to the Exercise Price (as hereinafter
defined). The number of shares of Common Stock to be received upon
the exercise of this Warrant and the Exercise Price are subject to
adjustment from time to time as hereinafter set forth, and all
references to “Common Stock”, “Warrant
Shares” and “Exercise Price” herein shall be
deemed to include any such adjustment or series of
adjustments.
1. Definitions . (a) The
following terms, as used herein, have the following
meanings:
“ Affiliate ”
shall have the meaning ascribed to such term in the Amended and
Restated Stockholders’ Agreement.
“ Amended and Restated
Stockholders’ Agreement ” means the Amended and
Restated Stockholders’ Agreement, dated as of January 9,
2009, by and among the Company and the Investor Stockholders (as
defined therein) party thereto, as amended, modified or
supplemented from time to time.
“ Board ” means
the Board of Directors of the Company.
“ Business Day ”
means any day except a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or obligated
to close.
“ Current Market Price Per
Common Share ” as of any date means the average of the
Daily Prices per share of Common Stock for the five
(5) consecutive trading days immediately prior to such
date.
“ Daily Price ”
means (i) if the shares of Common Stock then are listed and
traded on the New York Stock Exchange, Inc. (“ NYSE
”) or the Nasdaq Stock Market, Inc. (“ Nasdaq
”), the closing sale price or, if no closing sale price is
reported, the last reported sale price of the shares of Common
Stock on NYSE or Nasdaq on such date, (ii) if the shares of
Common Stock then are not listed and traded on NYSE or Nasdaq, the
closing sale price or, if no closing sale price is reported, the
last reported sale price of the shares of Common Stock on such date
by the principal national securities exchange on which the shares
are listed and traded or (iii) if the shares of Common Stock
then are not listed and traded on any such securities exchange, the
last quoted bid price on such date for the shares of Common Stock
in the over-the-counter market as reported by Pink Sheets LLC or
similar organization. If on any determination date the shares of
Common Stock are not quoted by any such organization or such bid
price is not available, the Current Market Price Per Common Share
shall be the fair market value of the shares of Common Stock on
such date as determined by a nationally recognized independent
investment banking firm retained mutually agreed upon by the
Company and the Holder.
“ Elevation ”
means Elevation Partners, L.P.
“ Ex-Dividend Date
” means, with respect to any issuance or distribution, the
first date on which the shares of Common Stock trade on the
applicable exchange or in the applicable market, regular way,
without the right to receive such issuance or
distribution.
“ Exercise Price
” means $3.25 per Warrant Share, as adjusted from time to
time as provided herein.
“ Expiration Date
” means October 24, 2014 at 5:00 p.m., New York City
time, or if such day is not a Business Day, then on the next
succeeding day that shall be a Business Day.
“ Fair Market Value
” of Common Stock or any other security or property means the
fair market value thereof as determined in good faith by the Board,
which determination must be set forth in a written resolution of
the Board, in accordance with the following rules: (i) for
Common Stock or other security traded or quoted on an Exchange, the
Fair Market Value will be the average of the closing prices of such
security on such Exchange over a ten (10) consecutive trading
day period, ending on the trading day immediately prior to the date
of determination; (ii) for any security that is not so traded
or quoted, the Fair Market Value shall be determined:
(x) mutually by the Board and the holders of at least a
majority of the then-outstanding shares of Series C Preferred
Stock, or (y) by a nationally recognized investment bank,
appraisal or accounting firm (whose fees and expenses will be paid
by the Company) selected by
mutual agreement between the Board and the
holders representing a majority of the then-outstanding shares of
Series C Preferred Stock; or (iii) for any other property, the
Fair Market Value shall be determined by the Board in good faith
assuming a willing buyer and a willing seller in an arms'-length
transaction; provided that if holders representing a majority of
the then-outstanding shares of Series C Preferred Stock object to a
determination of the Board made pursuant to this clause (iii), the
Fair Market Value of such property shall be as determined by
nationally recognized investment bank, appraisal or accounting firm
(whose fees and expenses will be paid by the Company) selected by
mutual agreement between the Board and such holders.
“ Market Disruption
Event ” means the occurrence or existence for more than
one half hour period in the aggregate on any scheduled Trading Day
for the Common Stock (or Reference Property, to the extent
applicable) of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the
Nasdaq or otherwise) in the Common Stock (or Reference Property, to
the extent applicable) or in any options, contracts or future
contracts relating to the Common Stock (or Reference Property, to
the extent applicable), and such suspension or limitation occurs or
exists at any time before 1:00 p.m. (New York City time) on such
day.
“ Original Issuance
Date ” shall mean January 9, 2009.
“ Rights Plan Exercise
Price ” shall have the same meaning as “Exercise
Price” set forth in the Company Rights Agreement or
its comparable term/provision under any successor, substitute
or additional shareholder rights plan.
“ Rights Plan Triggering
Event ” shall have the meaning given thereto in the
Certificate of Designation relating to the
Company’s Series C Preferred Stock.
“ Rights Triggering
Date ” means the date on which a Rights Plan Triggering
Event occurs.
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“ Securities Purchase Agreement
” means that certain Securities Purchase Agreement, dated as
of December 22, 2008, between [ —
] and the Company.
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“ Trading Day ”
means any day on which (i) there is no Market Disruption Event
and (ii) Nasdaq or, if the Common Stock (or Reference
Property, to the extent applicable) is not listed on Nasdaq, the
principal national securities exchange on which the
Common Stock (or Reference Property, to the extent applicable)
is listed, is open for trading or, if the Common Stock (or
Reference Property, to the extent applicable) is not so
listed, admitted for trading or quoted, any Business Day. A Trading
Day only includes those days that have a scheduled closing time of
4:00 p.m. (New York City time) or the then standard closing time
for regular trading on the relevant exchange or trading
system.
“ Warrant ” means
this Warrant, issued pursuant to the Securities Purchase
Agreement.
“ Warrant Shares
” means the shares of Common Stock deliverable upon exercise
of this Warrant, as adjusted from time to time.
(b) Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in
the Amended and Restated Stockholders’ Agreement.
2. Exercise of Warrant; Term
.
(a) Subject to
paragraph 2(f), the Holder is entitled to exercise the right to
purchase the Warrant Shares represented by this Warrant, in whole
or in part, but not for less than 100,000 Warrant Shares (or such
lesser number of Warrant Shares which may then constitute the
maximum number purchasable pursuant to this Warrant), such number
being subject to adjustment as provided in paragraph 10, at any
time or from time to time after the 16 th day following the Original
Issuance Date, until the Expiration Date. To exercise this Warrant,
the Holder shall deliver to the Company (i) an executed
Warrant Exercise Notice substantially in the form annexed hereto
and (ii) this Warrant. Upon such delivery and payment (the
“ Exercise Date ”), the Holder shall be deemed
to be the holder of record of the Warrant Shares subject to such
exercise and shall have all of the rights associated with such
Warrant Shares to which the Holder is entitled pursuant to this
Warrant, notwithstanding that the stock transfer books of the
Company shall then be closed or that certificates representing such
Warrant Shares shall not then be actually delivered to the
Holder.
(b) If the Holder exercises this
Warrant in part, this Warrant shall be surrendered by the Holder to
the Company and a new Warrant of the same tenor and for the
unexercised number of Warrant Shares shall be executed by the
Company within a reasonable time, and in any event not exceeding
three (3) Business Days after the Exercise Date. The Company
shall register the new Warrant in the name of the Holder or in such
name or names of its transferee pursuant to paragraph 6 hereof as
may be directed in writing by the Holder, and deliver the new
Warrant to the Person or Persons entitled to receive the
same.
(c) Subject to paragraph 2(e), upon
surrender of this Warrant and delivery of the Warrant Exercise
Notice in conformity with the foregoing provisions, the Company
shall transfer to the Holder appropriate evidence of ownership of
any Warrant Shares and/or other securities or property (including
any money) to which the Holder is entitled, registered or otherwise
placed in, or payable to the order of, the Holder or such name or
names of its transferee pursuant to paragraph 6 hereof as may be
directed in writing by the Holder, and shall deliver such evidence
of ownership and any other securities or property (including any
money) to the Person or Persons entitled to receive the same,
together with an amount in cash in lieu of any fraction of a share
as provided in paragraph 5 below, within a reasonable time, not to
exceed three (3) Business Days after the Exercise
Date.
(d) Upon exercise of the Warrant
pursuant to paragraph 2(a), the Holder shall be entitled to receive
Warrant Shares equal to the value (as determined below) of the
Warrant (or the portion thereof being exercised) by
surrender of this Warrant and
delivery of the Warrant Exercise Notice, in which event the Company
will promptly issue to the Holder a number of Warrant Shares
computed using the following equation:
where:
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X
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the number of
Warrant Shares issuable to the Holder upon exercise pursuant to
this paragraph 2(d).
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A
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=
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the Current
Market Price Per Common Share (as of the Exercise Date).
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B
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=
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the Exercise
Price (as of the Exercise Date).
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C
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=
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the number of
Warrant Shares issuable under this Warrant or, if only a portion of
this Warrant is being exercised, the portion of the Warrant being
exercised (as of the Exercise Date).
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If the foregoing calculation results
in zero or a negative number, then no Warrant Shares shall be
issued upon exercise pursuant to this paragraph 2(d).
(e) The Company may at any time in
its sole discretion deliver a written notice (a “ Cash
Settlement Notice ”) to the Holder setting forth its
intention to exercise its right to pay the Holder in cash in lieu
of delivery of any shares of Common Stock upon any exercise of this
Warrant as contemplated by this paragraph 2(e). The Cash Settlement
Notice shall specify the date from which it shall be effective,
which shall be no earlier than thirty (30) Business Days after
delivery. The Cash Settlement Notice will be effective until such
time as the Company amends such Cash Settlement Notice with a
superseding Cash Settlement Notice or revokes such Cash Settlement
Notice by delivery of a written notice of revocation delivered to
the Holder (a “ Revocation Notice ”). A Cash
Settlement Notice may be amended or revoked by the Company at any
time, and following delivery of a Revocation Notice, the Company
may deliver a new Cash Settlement Notice pursuant to this paragraph
2(e). In the event that the Company has delivered a Cash Settlement
Notice pursuant to the requirements of this paragraph 2(e) which is
effective at the time this Warrant is being exercised pursuant to
paragraph 2(a), in lieu of delivery of any shares of Common Stock
upon such exercise, the Company will pay to the Holder an amount in
cash equal to the result obtained by multiplying (a) the
number of shares of Common Stock issuable upon exercise pursuant to
paragraph 2(d), by (b) the Current Market Price Per Common
Share at the date of such exercise.
(f) No Holder will be permitted to
exercise the right to purchase Warrant Shares represented by this
Warrant to the extent that the Holder exercising such right
(together with such Holder’s Affiliates) would
immediately
after giving effect to such exercise
and after giving effect to any limitation on voting power set forth
in the Series B Certificate of Designation and the Series C
Certificate of Designation beneficially own outstanding equity
voting securities of the Company representing more than 39.9% of
the total number of votes which may be cast on a general matter of
the Company at which all classes of equity voting securities of the
Company are entitled to vote.
3. Restrictive Legend .
Certificates representing shares of Common Stock issued pursuant to
this Warrant shall bear a legend substantially in the form of the
legend set forth on the first page of this Warrant to the extent
that and for so long as such legend is required pursuant to the
Amended and Restated Stockholders’ Agreement or applicable
securities laws.
4. Reservation of Shares;
Listing . The Company hereby agrees at all times to keep
reserved for issuance and delivery upon exercise of this Warrant
such number of its authorized but unissued shares of Common Stock
or other securities of the Company from time to time issuable upon
exercise of this Warrant as will be sufficient to permit the
exercise in full of this Warrant. The Company hereby represents
that all such shares shall be duly authorized and, when issued upon
such exercise pursuant to the terms of this Warrant, shall be
validly issued, fully paid and non-assessable, free and clear of
all liens, security interests, charges and other encumbrances or
restrictions on sale (other than restrictions on transfer
contemplated by paragraph 6 or those created by the Holder) and
free and clear of all preemptive rights. The Company will use its
reasonable best efforts to ensure that the Common Stock may be
issued without violation of any law or regulation applicable to the
Company or of any requirement of any securities exchange applicable
to the Company on which the shares of Common Stock are listed or
traded.
5. No Fractional Warrant Shares
or Scrip . No fractional Warrant Shares or scrip representing
fractional Warrant Shares shall be issued upon the exercise of this
Warrant. In lieu of delivery of any such fractional Warrant Share
upon any exercise hereof, the Company shall pay to the Holder an
amount in cash equal to such fraction multiplied by the Current
Market Price Per Common Share at the date of such
exercise.
6. Transfer or Assignment of
Warrant . Subject to compliance with the Amended and Restated
Stockholders’ Agreement, the Holder shall be entitled,
without obtaining the consent of the Company, to assign and
transfer this Warrant or any rights hereunder, at any time in whole
or from time to time in part, but not for less than 100,000 Warrant
Shares (or such lesser number of Warrant Shares which may then
constitute the maximum number purchasable pursuant to this
Warrant), such number being subject to adjustment as provided in
paragraph 10, to any Person or Persons. Subject to the preceding
sentence, upon surrender of this Warrant to the Company, together
with the attached Warrant Assignment Form duly executed, the
Company shall, without charge, execute and deliver a new Warrant in
the name of the assignee or assignees named in such instrument of
assignment and, if the Holder’s entire interest is not being
assigned, in the name of the Holder and this Warrant shall promptly
be canceled. All expenses (other than stock transfer taxes) and
other charges payable in connection with the preparation, execution
and delivery of the new Warrants pursuant to this paragraph 6 shall
be paid by the Company.
7. Charges, Taxes and
Expenses . Issuance of certificates for Warrant Shares (or
other securities) to the Holder upon exercise of this Warrant shall
be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company.
8. Exchange and Registry of
Warrant . The Company shall maintain a registry showing the
name and address of the Holder as the registered holder of this
Warrant, and the Company shall be entitled to rely in all respects,
prior to written notice to the contrary, upon such registry. This
Warrant is exchangeable, upon the surrender hereof by the Holder to
the Company, for a new Warrant or Warrants of like tenor and
representing the right to purchase the same aggregate number of
Warrant Shares.
9. Loss, Theft, Destruction or
Mutilation of Warrant . Upon receipt by the Company of evidence
satisfactory to it (in the exercise of its reasonable discretion)
of the loss, theft, destruction or mutilation of this Warrant, and
in the case of any such loss, theft or destruction, upon the
receipt of a bond, indemnity or security reasonably satisfactory to
the Company, and upon surrender and cancellation of this Warrant,
if mutilated, the Company shall execute and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and date and representing the right to purchase the same
aggregate number of Warrant Shares as provided for in such lost,
stolen, destroyed or mutilated Warrant.
10. Anti-dilution Provisions
.
(a) Adjustment for Change in
Capital Stock .
(i) If the Company shall, at any
time or from time to time, while this Warrant is outstanding, issue
a dividend or make a distribution on its Common Stock (or Reference
Property, to the extent applicable) payable in shares of its Common
Stock (or Reference Property, to the extent applicable) to all
holders of its Common Stock (or Reference Property, to the extent
applicable), then, at the opening of business on the Ex-Dividend
Date for such dividend or distribution:
(1) The Exercise Price will be
adjusted by multiplying such Exercise Price by a fraction:
(A) the numerator of which shall be the number of shares of
Common Stock (or Reference Property, to the extent applicable)
outstanding at the close of business on the Business Day
immediately preceding such Ex-Dividend Date; and (B) the
denominator of which shall be the sum of the number of shares of
Common Stock (or Reference Property, to the extent applicable)
outstanding at the close of business on the Business Day
immediately preceding the Ex-Dividend Date for such
dividend or distribution, plus the
total number of shares of Common Stock (or Reference Property, to
the extent applicable) constituting such dividend or other
distribution; and
(2) The number of Warrant Shares
will be adjusted by multiplying such number by a fraction:
(A) the numerator of which shall be the Exercise Price
immediately prior to the adjustment pursuant to
Section 10(a)(i)(1) and (B) the denominator of which
shall be the Exercise Price immediately after such
adjustment.
If any dividend or distribution of
the type described in this