exv4w5



 





Exhibit 4.5



NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS
(1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER
OF THIS WARRANT OR SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT THIS WARRANT OR SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS.




THE TRANSFER OF THIS WARRANT IS RESTRICTED AS DESCRIBED HEREIN.




BERLINER COMMUNICATIONS, INC.




Common Stock Purchase Warrant




			
	 	 	 
	No. PZ-002
	 	Issue Date: December 29, 2006






     THIS CERTIFIES that, for value received, Punk, Ziegel & Company, L.P. (the “Holder”)
is entitled to subscribe for, and purchase from, Berliner Communications, Inc., a Delaware
corporation (the “Company”), upon the terms and conditions set forth herein, at any time or from
time to time during the period commencing on the Issue Date and terminating at 5:00 p.m., New York
local time, on the fifth anniversary of the Issue Date (the “Exercise Period”) up to
214,286 shares (the “Warrant Shares”) of the common stock of the Company, par value $.00002 per
share (the “Common Stock”). This Warrant is exercisable at an exercise price per share (the
“Exercise Price”) equal to $0.70; provided, however, that upon the occurrence of any of the events
specified in Section 5 hereof, the rights granted by this Warrant, including the number of shares
of Common Stock to be received upon such exercise and the exercise price per share, shall be
adjusted as therein specified.



     Section 1. Exercise of Warrant.




     (a) This Warrant may be exercised during the Exercise Period, either in whole or in part, by
the surrender of this Warrant (with the election at the end hereof duly executed) to the Company at
its office at 20 Bushes Lane, Elmwood Park, New Jersey 07407 Attention: President, or at such other
place as is designated in writing by the Company. In the event of a proposed sale of all or
substantially all of the Company’s assets or outstanding shares of Common Stock, this Warrant may
be exercised conditionally subject to the completion of such sale, with any payment of the Exercise
Price being payable on the closing date of such sale.



 









 





     (b) Payment must be made in cash or by certified or official bank check payable to the order
of the Company equal to the applicable aggregate Exercise Price for the number of Common Shares
specified in such Exercise Notice (as such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock issuable to the Holder per the terms of
this Warrant) and the Holder shall thereupon be entitled to receive the number of duly authorized,
validly issued, fully-paid and non-assessable shares of Common Stock (or other securities)
determined as provided herein.



     (c) For purposes hereof, the “Fair Market Value” of a share of Common Stock as of a particular
date (the “Determination Date”) shall mean:



          (i) If the Company’s Common Stock is traded on the American Stock Exchange or another national
exchange or is quoted on the National or Capital Market of The Nasdaq Stock Market, Inc.
(“Nasdaq”), then the closing or last sale price, respectively, reported for the last business day
immediately preceding the Determination Date.




          (ii) If the Company’s Common Stock is not traded on the American Stock Exchange or another
national exchange or on the Nasdaq but is traded on the NASD Over the Counter Bulletin Board, then
the mean of the average of the closing bid and asked prices reported for the last business day
immediately preceding the Determination Date.




          (iii) Except as provided in clause (iv) below, if the Company’s Common Stock is not publicly
traded, then as the Holder and the Company agree or in the absence of agreement by arbitration in
accordance with the rules then in effect of the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by education and training to pass on the
matter to be decided.




          (iv) If the Determination Date is the date of a liquidation, dissolution or winding up, or any
event deemed to be a liquidation, dissolution or winding up pursuant to the Company’s charter, then
all amounts to be payable per share to holders of the Common Stock pursuant to the charter in the
event of such liquidation, dissolution or winding up, plus all other amounts to be payable per
share in respect of the Common Stock in liquidation under the charter, assuming for the purposes of
this clause (iv) that all of the shares of Common Stock then issuable upon exercise of the Warrant
are outstanding at the Determination Date.




     Section 2. Rights Upon Exercise: Delivery of Securities.




     Upon each exercise of the Holder’s rights to purchase Warrant Shares, the Holder shall be
deemed to be the holder of record of the Warrant Shares so purchased, notwithstanding that the
transfer books of the Company shall then be closed or certificates representing the Warrant Shares
with respect to which this Warrant was exercised shall not then have been actually delivered to the
Holder. As soon as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates representing the Warrant Shares issuable
upon such exercise, registered in the name of the Holder or its designee. If this Warrant is
exercised in part only, the Company shall, upon surrender of this Warrant for



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cancellation, execute and deliver a Warrant evidencing the right of the Holder to purchase the
balance of the aggregate number of Warrant Shares purchasable hereunder as to which this Warrant
has not been exercised or assigned.



     Section 3. Transfer and Exchange.




     This Warrant shall be transferable on the books of the Company only upon delivery thereof duly
endorsed by the Holder or by his duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment, or authority to transfer. In all cases of transfer by
an attorney, executor, administrator, guardian, or other legal representative, duly authenticated
evidence of his, her, or its authority shall be produced. Any Warrants issued upon the permitted
transfer or exercise in part of this Warrant shall be numbered and shall be registered in a warrant
register (the “Warrant Register”) as they are issued. The Company shall be entitled to treat the
registered holder of any Warrant on the Warrant Register as the owner in fact thereof for all
purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such
Warrant on the part of any other person, and shall not be liable for any registration of transfer
of Warrants which are registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is committing a breach
of trust in requesting such registration of transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith. Upon any registration of transfer, the Company shall
deliver a new Warrant or Warrants to the person entitled thereto. This Warrant may be exchanged,
at the option of the Holder thereof, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to purchase a like number
of Warrant Shares (or portions thereof), upon surrender to the Company or its duly authorized
agent. Notwithstanding the foregoing, the Company shall have no obligation to cause Warrants to be
transferred on its books to any person if, in the opinion of counsel to the Company, such transfer
does not comply with the provisions of the Securities Act of 1933, as amended (the “Securities
Act”) and the rules and regulations thereunder.



     Section 4. Reservation of Shares.




     The Company shall at all times reserve and keep available out of its authorized and unissued
Common Stock, solely for the purpose of providing for the exercise of the Warrants, such number of
shares of Common Stock as shall, from time to time, be sufficient therefor. The Company represents
that all shares of Common Stock issuable upon exercise of this Warrant are duly authorized and,
upon receipt by the Company of the full payment for such Warrant Shares, will be validly issued,
fully paid, and nonassessable, and will not be issued in violation of any preemptive or similar
rights of stockholders.



     Section 5. Antidilution.




     (a) In the event that the Company shall at any time during the Exercise Period: (i) declare a
dividend on the outstanding Common Stock payable in shares of its capital stock; (ii) subdivide the
outstanding Common Stock; or (iii) combine the outstanding Common Stock into a smaller number of
shares; then, in each case, the Exercise Price per Warrant Share in effect at the time of the
record date for the determination of stockholders entitled to receive such dividend or



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distribution or of the effective date of such subdivision or combination shall be adjusted so
that it shall equal the price determined by multiplying such Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding immediately prior to
such action, and the denominator of which shall be the number of shares of Common Stock outstanding
after giving effect to such action. Such adjustment shall be made successively whenever any event
listed above shall occur and shall become effective at the close of business on such record date or
at the close of business on the date immediately preceding such effective date, as applicable.



     (b) All calculations under this Section 5 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.



     (c) In any case in which this Section 5 shall require that an adjustment in the number of
Warrant Shares be made effective as of a record date for a specified event, the Company may elect
to defer, until the occurrence of such event, issuing to the Holder, if the Holder exercised this
Warrant after such record date, the Warrant Shares, if any, issuable upon such exercise over and
above the number of Warrant Shares issuable upon such exercise on the basis of the number of shares
of Common Stock in effect prior to such adjustment; provided, however, that the Company shall
deliver to the Holder a due bill or other appropriate instrument evidencing the Holder’s right to
receive such additional shares of Common Stock upon the occurrence of the event requiring such
adjustment.



     (d) Whenever there shall be an adjustment as provided in this Section 5, the Company shall
within 15 days thereafter cause written notice thereof to be sent by registered mail, postage
prepaid, to the Holder, at its address as it shall appear in the Warrant Register, which notice
shall be accompanied by an officer’s certificate setting forth the number of Warrant Shares
issuable and the Exercise Price thereof after such adjustment and setting forth a brief statement
of the facts requiring such adjustment and the computation thereof, which officer’s certificate
shall be conclusive evidence of the correctness of any such adjustment absent manifest error.



     (e) Notwithstanding anything herein to the contrary, the Company shall not be required to
issue fractions of shares of Common Stock or other capital stock of the Company upon the exercise
of this Warrant. If any fraction of a share of Common Stock would be issuable on the exercise of
this Warrant (or specified portions thereof), the Company shall pay in lieu of such fraction an
amount in cash equal to the same fraction of the average closing sale price (or average of the
closing bid and asked prices, if closing sale price is not available) of Common Stock for the 10
trading days ending on and including the date of exercise of this Warrant. If the Common Stock is
not publicly traded, the cash amount of such fraction shall be determined in good faith by the
Board of Directors of the Company.



     (f) No adjustment in the Exercise Price per Warrant Share shall be required if such adjustment
is less than $.01; provided, however, that any adjustments which by reason of this Section 5 are
not required to be made shall be carried forward and taken into account in any subsequent
adjustment.



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     (g) Whenever the Exercise Price payable upon exercise of this Warrant is adjusted pursuant to
subsection (a) above, the number of Warrant Shares issuable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Warrant Shares theretofore issuable upon
exercise of this Warrant by the Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.



     Section 6. Reclassification; Reorganization; Merger.




     (a) In case of any capital reorganization, other than in the cases referred to in Section 5(a)
hereof, or the consolidation or merger of the Company with or into another corporation (other than
a merger or consolidation in which the Company is the continuing corporation and which does not
result in any reclassification of the outstanding shares of Common Stock or the conversion of such
outstanding shares of Common Stock into shares of other stock or other securities or property), or
in the case of any sale, lease, conveyance or other transfer to another person of all or
substantially all of the assets of the Company (such actions being hereinafter collectively
referred to as “Reorganizations”), there shall thereafter be deliverable upon exercise of this
Warrant (in lieu of the number of Warrant Shares theretofore deliverable) the number of shares of
stock or other securities, cash or other property to which a holder of the respective number of
Warrant Shares which would otherwise have been deliverable upon the exercise of this Warrant would
have been entitled upon such Reorganization if this Warrant had been exercised in full immediately
prior to such Reorganization. In case of any Reorganization, appropriate adjustment, as determined
in good faith by the Board of Directors of the Company, shall be made in the application of the
provisions herein set forth with respect to the rights and interests of the Holder so that the
provisions set forth herein shall thereafter be applicable, as nearly as possible, in relation to
any shares or other property thereafter deliverable upon exercise of this Warrant. Any such
adjustment shall be made by, and be set forth in, a supplemental agreement between the Company, or
any successor thereto, and the Holder, with respect to this Warrant, and shall for all purposes
hereof conclusively be deemed to be an appropriate adjustment. The Company shall not effect any
such Reorganization unless, upon or prior to the consummation thereof, the successor corporation,
or if the Company shall be the surviving corporation in any such Reorganization and is not the
issuer of the shares of stock or other securities or property to be delivered to holders of shares
of the Common Stock outstanding at the effective time thereof, then such issuer, shall assume by
written instrument the obligation to deliver to the Holder such shares of stock, securities, cash,
or other property as such Holder shall be entitled to purchase in accordance with the foregoing
provisions. In the event of the sale, lease, conveyance or other transfer of all or substantially
all of the assets of the Company as part of a plan for liquidation of the Company, all rights to
exercise this Warrant shall terminate 30 days after the Company gives written notice to the Holder
that such sale, lease, conveyance or other transfer has been consummated.



     (b) In case of any reclassification of the shares of Common Stock issuable upon exercise of
this Warrant (other than a change in par value or from a specified par value to no par value, or as
a result of a subdivision or combination, but including any change in the shares into two or more
classes or series of shares), or in case of any consolidation or merger of another corporation into
the Company in which the Company is the continuing corporation and in which there is a
reclassification (including a change to the right to receive cash or other property) of the



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shares of Common Stock (other than a change in par value, or from no par value to a specified
par value, or as a result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), the Holder or holders of this Warrant shall have the
right thereafter to receive upon exercise of this Warrant solely the kind and amount of shares of
stock and other securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of Warrant Shares for
which this Warrant might have been exercised immediately prior to such reclassification, change,
consolidation, or merger. Thereafter, appropriate provision shall be made for adjustments which
shall be as nearly equivalent as practicable to the adjustments in Section 5.



     (c) The above provisions of this Section 6 shall similarly apply to successive
reclassifications and changes of shares of Common Stock and to successive consolidations, mergers,
sales, leases, or conveyances.



     Section 7. Notice of Certain Events.




     In case at any time the Company shall propose:



     (a) to pay any dividend or make any distribution on shares of Common Stock in shares of Common
Stock or make any other distribution (other than regularly scheduled cash dividends which are not
in a greater amount per share than the most recent such cash dividend) to all holders of Common
Stock;



     (b) to issue any rights, warrants, or other securities to all holders of Common Stock
entitling them to purchase any additional shares of Common Stock or any other rights, warrants, or
other securities;



     (c) to effect any reclassification of outstanding shares of Common Stock or any consolidation,
merger, sale, lease, or conveyance of property, as described in Section 6;



     (d) to effect any liquidation, dissolution, or winding-up of the Company; or



     (e) to take any other action which would cause an adjustment to the Exercise Price per Warrant
Share;


then, and in any one or more of such cases, the Company shall give written notice thereof by
registered mail, postage prepaid, to the Holder at the Holder’s address as it shall appear in the
Warrant Register, mailed at least 10 days prior to: (i) the date as of which the holders of record
of shares of Common Stock to be entitled to receive any such dividend, distribution, rights,
warrants, or other securities are to be determined; (ii) the date on which any such
reclassification, consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective and the date as of which it is expected
that holders of record of shares of Common Stock shall be entitled to exchange their shares for
securities, cash or other property, if any, deliverable upon such reclassification, consolidation,
merger, sale, lease, conveyance of property, liquidation, dissolution, or winding-up; or (iii) the
date of such action which would require an adjustment to the Exercise Price per Warrant Share.




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     Section 8. If at any time after the date hereof the Company shall determine to prepare and
file with the Commission a registration statement relating to an offering for its own account or
the account of others under the Securities Act of any of its equity securities, other than on Form
S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating
to equity securities to be issued solely in connection with any acquisition of any entity or
business or equity securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to the Holder written notice of such determination and, if
within fifteen (15) days after receipt of such notice, the Holder shall so request in writing, the
Company shall include in such registration statement all or any part of the shares of Common Stock
underlying this Warrant the Holder requests to be registered, to the extent the Company may do so
without violating registration rights of others which exist as of the date of this Agreement,
subject to customary underwriter cutbacks applicable to all holders of registration rights and
subject to obtaining any required consent of any selling stockholder(s) to such inclusion under
such registration statement.



     Section 9. Charges and Taxes.




     The issuance of any shares or other securities upon the exercise of this Warrant and the
delivery of certificates or other instruments representing such shares or other securities shall be
made without charge to the Holder for any tax or other charge in respect of such issuance. The
Company shall not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other than that of the
Holder and the Company shall not be required to issue or deliver any such certificate unless and
until the person or persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that such tax has been
paid.



     Section 10. Compliance with Securities Laws.




     (a) The Holder of this Warrant, by the acceptance hereof, represents and warrants that it is
acquiring this Warrant and the Warrant Shares issuable upon exercise of this Warrant for its own
account for investment only and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales registered or exempted under the
Securities Act. The Holder further represents, by acceptance hereof, that, as of the date hereof,
such Holder is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D
promulgated under by the Securities and Exchange Commission under the Securities Act.



     (b) Until sold pursuant to the provisions of Rule 144 or otherwise registered under the
Securities Act, the Warrant Shares issued on exercise of the Warrants shall be subject to a stop
transfer order and the certificate or certificates representing the Warrant Shares shall bear the
following legend:




THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE



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SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR
OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE
HOLDER OF THE SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.



     Section 11. Loss; Theft; Destruction; Mutilation.




     Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction, or
mutilation of any Warrant (and upon surrender of any Warrant if mutilated), and upon receipt by the
Company of reasonably satisfactory indemnification, the Company shall execute and deliver to the
Holder thereof a new Warrant of like date, tenor, and denomination.



     Section 12. Stockholder Rights.




     The Holder of any Warrant shall not have, solely on account of such status, any rights of a
stockholder of the Company, either at law or in equity, or to any notice of meetings of
stockholders or of any other proceedings of the Company, except as provided in this Warrant.



     Section 13. Governing Law.




     This Warrant shall be construed in accordance with the laws of the State of New Jersey
applicable to contracts made and performed within such State, without regard to principles of
conflicts of law.



(This space intentionally left blank; signature page follows.)




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     IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.



	 	 	 	 	 
	 	BERLINER COMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Richard B. Berliner
 	 
	 	 	Name:  	Rich Berliner 	 
	 	 	Title:  	Chief Executive Officer 	 



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