EXHIBIT 10.3
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.
COMMON STOCK PURCHASE WARRANT
To Purchase ______________ Shares of Common Stock of
APOGEE TECHNOLOGY, INC.
THIS COMMON STOCK PURCHASE WARRANT (the "Warrant") CERTIFIES that, for value
received, ______________ (the "Holder"), is entitled, upon the terms and subject
to the limitations on exercise and the conditions hereinafter set forth, at any
time on or after the date of issuance of this Warrant (the "Initial Exercise
Date") and on or prior to the five year anniversary of the Initial Exercise Date
(the "Termination Date") but not thereafter, to subscribe for and purchase from
Apogee Technology, Inc., a Delaware corporation (the "Company"), up to
______________ shares (the "Warrant Shares") of Common Stock, par value $0.01
per share, of the Company (the "Common Stock").
The purchase price of one share
of Common Stock (the "Exercise Price") under this Warrant shall be $5.70(1),
subject to adjustment hereunder.
Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the "Purchase Agreement"), dated August 24, 2004 among the
Company and the purchasers signatory thereto.
(1)
120% of the Per Share Purchase Price.
1
1.
TITLE TO WARRANT.
PRIOR TO THE TERMINATION DATE AND SUBJECT TO
COMPLIANCE WITH APPLICABLE LAWS AND SECTION 7 OF THIS WARRANT, THIS WARRANT AND
ALL RIGHTS HEREUNDER ARE TRANSFERABLE, IN WHOLE OR IN PART, TO UP TO THREE (3)
PERSONS IN ANY 12 MONTH PERIOD, AT THE OFFICE OR AGENCY OF THE COMPANY BY THE
HOLDER IN PERSON OR BY DULY AUTHORIZED ATTORNEY, UPON SURRENDER OF THIS WARRANT
TOGETHER WITH THE ASSIGNMENT FORM ANNEXED HERETO PROPERLY ENDORSED.
THE
TRANSFEREE SHALL SIGN AN INVESTMENT LETTER IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY.
2.
AUTHORIZATION OF SHARES.
THE COMPANY COVENANTS THAT ALL WARRANT SHARES
WHICH MAY BE ISSUED UPON THE EXERCISE OF THE PURCHASE RIGHTS REPRESENTED BY THIS
WARRANT WILL, UPON EXERCISE OF THE PURCHASE RIGHTS REPRESENTED BY THIS WARRANT,
BE DULY AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND FREE FROM
ALL TAXES, LIENS AND CHARGES