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EXHIBIT 4.11
THE TRANSFER OF THIS WARRANT IS RESTRICTED
AS PROVIDED IN SECTION 10.
________________________________________________________________________________
No. W-5 WARRANT TO PURCHASE
GRANT DATE: December 7, 1993 14,379 UNITS
ALPHA MICROSYSTEMS
UNDERWRITER'S WARRANT
In consideration of other value received, Alpha Microsystems,
a California corporation (the "Company"), grants to G.L. Cabot Henderson or
permitted transferees or assigns (the "Holder") the right, subject to the terms
of this Warrant, to purchase at any time and from time to time during the
period commencing November 1, 1994, and ending on November 1, 1998, unless
extended or terminated as provided herein (the "Expiration Date"), up to 14,379
Units of the Company (each Unit to consist of one share of Common Stock and one
warrant to purchase one share of Common Stock) at $1.95 per Unit (the "Basic
Exercise Price") as more fully described in the Company's Prospectus dated
November 1, 1993 for the public offering of equivalent units ("Company's
Prospectus"). The Basic Exercise Price and the number of Units that may be
purchased are subject to adjustment under the terms of this Warrant.
Section 1. DEFINITIONS.
As used in this Warrant, unless the context otherwise
requires:
1.1 "Basic Exercise Price" means the price at which each
Unit may be purchased upon exercise of this Warrant as stated in the first
sentence of this Warrant.
1.2 "Blue Sky Application" means an application or other
document filed pursuant to a Blue Sky law to register, qualify or obtain an
exemption for any offer or sale by or for the account of the Holder of all or
part of this Warrant or any of the Units.
1.3 "Blue Sky law" means the laws and regulations of any
state or other jurisdiction applicable to any sale by or for the account of the
Holder of all or part of this Warrant or any of the Units.
1.4 "Common Stock" means the Common Stock (no par value)
of the Company existing on the Grant Date and for purposes of Sections 7.1(a)
through (e) also has the meaning set forth in Section 7.1(g).
1.5 "Exercise Date" means any date when this Warrant is
exercised, in whole or in part, in the manner indicated in Sections 2.1 and
2.2.
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1.6 "Exercise Price" means the Basic Exercise Price;
provided, however, that if an adjustment is required under Section 7 of this
Warrant, then the "Exercise Price" means, after each such adjustment, the price
at which each Unit may be purchased upon exercise of this Warrant immediately
after the last such adjustment.
1.7 "Expiration Date" means the Expiration Date indicated
on the first page of this Warrant as such date may be extended as provided in
Section 9.2(a) or the date indicated in Section 9.2(h) if the Warrant shall
have been sold in a public offering as provided therein.
1.8 "Grant Date" means the date this Warrant was first
granted as stated at the beginning of this Warrant.
1.9 "Prospectus" means a preliminary prospectus or final
prospectus (including any supplement) or any offering circular or similar
offering document, included in a Registration Statement.
1.10 "Registrable Securities" means the Warrants, the
Related Warrants, the Units, the Related Units, or shares of Common Stock or
Underlying Warrants issued pursuant to exercise of the Warrant.
1.11 "Registration Statement means a Registration or
Offering Statement, a pre-effective or post-effective amendment to a
Registration Statement or other document proposed for filing or filed by the
Company under the Securities Act which is or would be available under
applicable laws, rules and regulations to register for a public offering or
sale this Warrant, any Related Warrant, any Units or any Related Units. The
term "Registration Statement" shall not apply to any registration statement
relating to the sale of securities to participants in a Company stock or option
plan or a registration on any form which doesn't include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities (as defined in Section 1.10 below).
1.12 "Related Warrant" means any other Warrant executed
and delivered by the Company on terms identical with the terms of this Warrant
(except as to the identity of the Holder, number of Units or execution date)
granted in connection with the transaction pursuant to which this Warrant was
granted.
1.13 "Related Units" means any Units or other securities
issued or issuable upon exercise of' any Related Warrant.
1.14 "Securities Act" means the Securities Act of' 1933,
as amended from time to time, and all rules and regulations promulgated
thereunder, or any act, rules or regulations which replace the Securities Act
or any such rules and regulations.
1.15 "Underwriter" means any party who is an "underwriter"
within the meaning of the Securities act with respect to any sale by or for the
account of the Holder of' any of the Warrants or Unit.
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1.16 "Unit" means any Units, consisting of' one share of
Common Stock of the Company and one warrant to purchase one share of Common
Stock, or other securities issued or subject to issuance upon exercise of this
Warrant or upon exchange of a Unit or Units of different denominations.
1.17 "Underlying Warrant" means the common stock purchase
warrant to purchase shares of Common Stock of the Company which, together with
the Unit Share, comprises the Unit. The Underlying Warrant is identical in all
respects to the redeemable common stock purchase warrants issued pursuant to
the Warrant Agreement, as more fully described in the Company's Prospectus,
except that (i) the initial exercise date thereof shall be the date of exercise
of the Underwriters' Warrant, (ii) the initial exercise price thereof shall be
$2.50 and shall be thereafter determined as set forth herein, (iii) the Company
may not redeem the Underlying Warrants, (iv) no terms of the Underlying
Warrants may be modified without the consent of the Holders of a majority of
the Warrants, (v) the Underlying Warrants shall be exercisable until the
Expiration Date; and (vi) the Common Stock subject to the Underlying Warrants
shall initially be as set forth in the Warrant Agreement and thereafter
determined as set forth herein without regard to the terms of the Warrant
Agreement.
1.18 "Warrant" means -this Underwriter's Warrant and each
previously executed and cancelled Underwriter's Warrant, if any, for which this
Warrant has been exchanged.
1.19 "Warrant Agreement" means the Warrant Agreement
associated with offering contemplated by the Registration Statement between
Mellon Securities Trust and the Company.
Section 2. DURATION AND EXERCISE OF WARRANT
2.1 Exercise Period. Subject to the provisions of
Sections 5 and 10 hereof, the Warrants may be exercised at any time after one
year from the Grant Date and on or before the Expiration Date. After the
Expiration Date this Warrant shall become void, and all rights to purchase
Units hereunder shall thereupon cease.
2.2 Method of Exercise. This Warrant may be exercised by
the Holder, in whole or in part, by (i) surrendering this Warrant to the
Company, (ii) tendering to the Company payment of the Exercise Price for the
Units for which exercise is made and (iii) executing and delivering to the
Company the attached Exercise Form. Upon proper exercise, the Holder shall be
deemed to be the holder of record of the Units for which exercise is made, even
though the transfer or register books of the Company may then be closed or
certificates representing such Units may not then be actually delivered to the
Holder.
2.3 Certificates. Within a reasonable time but no more
than 20 days after exercise, certificates for the shares of Common Stock and
the Underlying Warrants comprising such Units shall be delivered to the Holder
and, unless this Warrant has expired, a Related Warrant representing the number
of Units, if any, with respect to which this Warrant shall not have been
exercised shall be issued to the Holder.
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2.4 Taxes. The Company covenants and agrees that it will
pay when due and payable any and all taxes which may be payable in connection
with the issuance of this Warrant, or the issuance of any Units upon the
exercise of this Warrant. The Company shall not, however, be required to pay
any tax which may be payable in respect of any subsequent transfer of this
Warrant or of the Units.
Section 3. VALIDITY AND RESERVATION OF UNITS
The Company covenants that this Warrant and all Units, shares
of Common Stock or Underlying Warrants issued upon exercise of this Warrant
will be validly issued, fully paid, nonassessable and free of preemptive
rights. The Company agrees that so long as this Warrant may be exercised, the
Company will have authorized and reserved for issuance upon exercise of this
Warrant a sufficient number of Units to provide for exercise in full.
Section 4. FRACTIONAL UNITS
No fractional Unit shall be issued upon the exercise of this
Warrant. With respect to any fraction of a Unit otherwise issuable upon any
such exercise, the Company shall pay to the Holder an amount in cash equal to
such fraction multiplied by the Exercise Price.
Section 5. LIMITED RIGHTS OF THE WARRANT HOLDER
The Holder shall not, solely by virtue of being the Holder of
this Warrant, have any of the rights of a holder of Common Stock of the
Company, either at law or equity, until such Warrant shall have been exercised
and the Holder shall be deemed to be the holder of record of Units as provided
in this Warrant.
Section 6. EXCHANGE, TRANSFER OR LOSS OF WARRANT
6.1 Exchange. This Warrant is exchangeable, without
expense to the Holder and upon surrender hereof to the Company, for Warrants of
different denominations entitling the Holder to purchase Units equal in total
number and identical in type to the Units covered by this Warrant.
6.2 Transfer. Subject to the provisions of Section 10,
upon surrender of this Warrant to the Company with the attached Assignment Form
duly executed and the tender of funds sufficient to pay any transfer tax, the
Company shall, without charge, execute and deliver a new Warrant to the
assignee named in such Assignment Form, and this Warrant shall be cancelled
concurrent with such issuance.
6.3 Loss, Theft, Destruction or Mutilation. Upon receipt
by the Company of satisfactory evidence of the loss, theft, destruction or
mutilation of this Warrant and either (in the case of loss, theft or
destruction) reasonable indemnification or (in the case of mutilation) the
surrender of this Warrant for cancellation, the Company will execute and
deliver to the Holder, without charge, a new Warrant of like denomination. Any
such new Warrant executed and delivered shall constitute an additional
obligation of the Company, whether or not this Warrant, reportedly lost,
stolen, destroyed or mutilated, shall be at any time enforceable by anyone.
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Section 7. ANTI-DILUTION ADJUSTMENT OP NUMBER OP UNITS AND EXERCISE PRICE
7.1 Adjustment of Exercise Price. If any of the
following events shall occur at any time or from time to time prior to the
exercise in full or expiration of this Warrant, the following adjustments shall
be made in the Exercise Price, with the exception hereinafter provided:
(a) Recapitalization. In case the Company effects a
subdivision, combination, reclassification or other Recapitalization of its
outstanding shares of Common Stock into a greater or lesser number of shares of
Common Stock, the Exercise Price in effect immediately after such subdivision,
combination, reclassification or other recapitalization shall be
proportionately decreased or increased, as the case may be.
(b) Dividend Other Than in Cash. If the Company shall
declare a dividend on its Common Stock payable in stock or other securities of
the Company or of any other corporation, or in property or otherwise than in
cash, or the functional equivalent thereof, to the holders of its Common Stock,
the Holder shall, without additional cost, be entitled to receive upon the
exercise of this Warrant, in addition to the Units to which such Holder is
otherwise entitled upon such exercise, the number of shares of stock or other
securities or property which such Holder would have been entitled to receive if
such Holder had been a holder, on the record date for such dividend, of the
number of shares of Common Stock so purchased under this Warrant (but not
including the number of shares of Common Stock acquirable upon subsequent
exercise of the Underlying Warrants).
(c) Merger or Consolidation - No Change in Control. In
case of any merger, consolidation or reorganization of the Company with or into
one or more corporations which results in holders of the Company's Common Stock
immediately prior to such event owning a majority of the voting securities of
the surviving corporation immediately following such event, and as a result of
which holders of the Company's Common Stock receive other stock, securities or
property in lieu of or in addition to, but on account of, their Common Stock,
the Holder, upon the exercise of this Warrant after the record date for
determination of shareholders entitled thereto, shall receive, in lieu of or in
addition to the Units, the proportionate shares of all stock, or other
securities (appropriately adjusted for any subsequent events of the issuer of
such stock or securities which are of the kind which would cause adjustment of
the Exercise Price hereunder) or other property issued, paid or delivered for
or on all of the Common Stock of the Company as would have been allowable to
the Units so purchased under this Warrant had this Warrant been exercised
immediately prior to said record date.
(d) Merger or Consolidation - Change in Control. In case
of any merger, consolidation or reorganization of the Company with or into one
or more other corporations, which results in the holders of the Company's
Common Stock immediately prior to such event owning less than a majority
interest of the voting securities of the surviving corporation immediately
following such event, or in the case of any sale, lease, transfer or conveyance
to another corporation of all or substantially all the assets of the Company or
proposed liquidation of the Company, then in either such event the Holder shall
be given notice of such proposed action
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at approximately the same time and in substantially the same manner as the
holders of the Company's Common Stock. The Holder may attend the meeting of
the Company's shareholders at which such action is considered and voted upon.
If the proposed action is approved according to applicable law by the
shareholders of all corporations or other entities which are parties to the
proposed action, the Holder shall be so notified in writing by the Company by
registered or certified mail, and thereupon, notwithstanding the period of
exercisability stated on the face of this Warrant, this Warrant shall
automatically become immediately exercisable and become forever null and void
to the extent not exercised on or before 5:00 P.M., California time, on the
tenth Business Day following the delivery of such notice.
(e) Minimum Adjustment Not Required. Anything in this
Section 7.1 to the contrary notwithstanding, the Company shall not be required,
except as hereinafter provided, to make any adjustment of the Exercise Price in
any case in which the amount by which such Exercise Price would be increased or
reduced, in accordance with the foregoing provisions, would be less than $.05,
but in such a case, such adjustment shall be carried forward and when such
adjustment, together with any and all such other adjustments so carried
forward, shall amount to not less than $.10 the Exercise Price shall be
adjusted; provided, however, that adjustments of less than $.05 in the Exercise
Price shall be required and made in accordance with the provisions of this
Section 7.1 (other than this subparagraph) not later than such time as may be
required in order to preserve the tax free nature of any distribution (within
the meaning of Section 305 of the United States Internal Revenue Code of 1986,
as amended) to the Holder or the holders of Common Stock. In the event of any
subdivision, combination, reclassification or other recapitalization of shares
of Common Stock, said amount (as theretofore decreased or increased) shall be
proportionately decreased or increased.
(f) Other Adjustments. The Company, by action of its
Board of Directors, shall make such other equitable adjustments to the Exercise
Price as may be necessary to protect the Holder against dilution of this
Warrant, with or without a request of a Holder, where such an adjustment is
appropriate in light of the occurrence of an event or the existence of
circumstances similar to those otherwise contemplated by this Section 7.1.
(g) Term "Common Stock." Whenever reference is made in
Sections 7.1(a) through (e) above to Common Stock, the term "Common Stock"
shall include any stock of any class of the Company, other than preferred stock
with a fixed limit on dividends, with no rights of conversion into "Common
Stock" and with a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company.
7.2 Number of Units Adjusted. After any adjustment of the
Exercise Price pursuant to Section 7.1, the number of Units issuable at the new
Exercise Price shall be adjusted to the number obtained by (i) multiplying the
number of Units issuable upon exercise of this Warrant immediately before such
adjustment by the Exercise Price in effect immediately before such adjustment
and (ii) dividing the product so obtained by the new Exercise Price.
7.3 Notice of Adjustment. Whenever events occur requiring the
Exercise Price to be adjusted, the Company shall promptly file with its
Secretary or an Assistant Secretary at its principal office and with its stock
transfer agent, if any, a certificate of its chief financial officer
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showing the adjusted Exercise Price, setting forth in reasonable detail the
facts requiring such adjustment, and stating such other facts as shall be
necessary to show the manner and figures used to compute such adjustment. Such
chief financial officer's certificate shall be made available at all reasonable
times for inspection by the Holder. Promptly after each such adjustment, the
Company shall mail a copy of such certificate by certified mail to the Holder
together with information relating to the adjustment under Section 7.2. The
Company shall endorse on any Related Warrant executed and delivered by the
Company a description of each adjustment, if any, under this Section as the
result of events occurring before the execution and delivery of the Related
Warrant, and the Related Warrant so issued shall reflect the number of Units
issuable on exercise, as adjusted to reflect such changes.
If, within 45 days of the mailing of such certificate, Holders holding
in the aggregate not less than 25% of. the Warrants notify the Company in
writing of their disagreement with the adjusted Exercise Price contained in the
Company certificate, then the Company will promptly obtain a certificate of a
firm of independent certified public accountants of recognized standing
selected by the Company's Board of Directors (who shall not be the regular
auditors of the Company) certifying the same items required by the Company
certificate or making such adjustments as are appropriate. The Company will
promptly mail a copy of the firm of independent public accountants' certificate
to the Holder of this Warrant. Under the circumstances described in this
paragraph, the Holders of the Warrants giving notice shall be obligated to
reimburse the Company for half of the charges imposed by the independent
certified accountants if their certificate confirms the Company's prior
calculations.
Section 8. NOTICE TO HOLDER
So long as this Warrant is outstanding, whenever the Company shall
expect to (i) pay any dividend or distribution upon Common Stock, (ii) offer to
the holders of Common Stock any right to subscribe for or to purchase any other
securities of the Company, (iii) effect any recapitalization, merger,
consolidation, reorganization, transfer, sale, lease or conveyance as referred
to in Section 7, or (iv) be involved in any voluntary or involuntary
dissolution, liquidation or winding up of the Company, at least twenty-one days
before the proposed action or any applicable record date, the Company, by
certified mail, shall give the Holder written notice describing the proposed
action and stating the date on which (x) a record date is to be fixed for the
purposes of such dividend, distribution or right or (y) such recapitalization,
merger, consolidation, reorganization, transfer, sale, lease, conveyance,
dissolution, liquidation or winding up is to take place and when, if any date
is to be fixed, the record holders of Common Stock shall be entitled to
exchange the shares of Common Stock for securities or other property
deliverable upon such recapitalization, merger, consolidation, reorganization,
transfer, sale, lease, conveyance, dissolution, liquidation or winding up.
Section 9. REGISTRATION OF THE WARRANT OR UNITS
9.1 Registration Rights
(a) Piggy-back Registration. The Company shall advise
each Holder of Registrable Securities by written notice at least four weeks
prior to the filing of any Registration
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Statement pertaining to securities to be offered to the public solely for cash
which is filed after twelve months but within six years after the Grant Date,
and will, upon the request of any such Holders, and without any charge to them,
include in any such Registration Statement such information as may be required
to permit a public offering of their Registrable Securities. If any such
Registration Statement or notification is being filed by the Company in
connection with an underwritten public offering of securities of the Company,
the Company shall have the right to require such Holders (provided that Rule
415 applies to the sale of the Registrable Securities) to postpone the offering
of their securities for a period of 90 days following the effective date of
such Registration Statement or notification. If any such Registration
Statement or notification is being filed by the Company solely for the benefit
of selling security holders, the Company will permit such Holders of the
Registrable Securities to include for sale with such shareholders in such
Registration Statement or notification at least a pro rata portion (based upon
the ratio of the number of shares of Common Stock which such selling security
holders desire to sell to the number of Registrable Securities which such
Holders of the Registrable Securities desire to sell) of the total Units being
registered, and the offering of the balance of the Registrable Securities owned
by holders of the Registrable Securities may then be postponed by the Company
for a period of 90 days following effectiveness of the Registration Statement
or notification.
(b) Demand Registration. If the Company shall be given
notice from persons holding more than 50% of the Registrable Securities any
time after twelve months but prior to six years from the Grant Date, to the
effect that such holders contemplate (i) the transfer of all or any part of
their Registrable Securities, or (ii) the exercise of all or any part of their
Warrants or Related Units, under such circumstances that a public offering
(within the meaning of the Securities Act) of such securities will be involved,
then the Company shall, (i) at its expense and as promptly as practicable after
receipt of such notice, if such securities may not then be sold in a public
offering under the Securities Act, file a Registration Statement or
notification pursuant to the Securities Act, and applicable Blue Sky laws, to
the end that such securities may be sold under the Securities Act and such Blue
Sky laws as promptly as practicable from the date of receipt of such notice by
the Company and (ii) immediately notify all Holders of its intention so to file
a Registration Statement and include any additional Registrable Securities in
said Registration Statement as Holders may thereafter request in writing prior
to the effective date of said Registration Statement; provided that no more
than one such demand may made upon the Company; provided that the Company shall
not be obligated to take any action to effect any such Registration pursuant to
this Section 9.1(b);
(i) During the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of, and ending
on the date one hundred twenty (120) days immediately following the effective
date of, any Registration Statement pertaining to securities of the Company,
provided the Company is actively employing in good faith all reasonable efforts
to cause such Registration Statement to become effective; or
(ii) After the Company has effected one such
Registration pursuant to this Section 9.1(b).
(c) General Provisions. The following provisions shall
also be applicable to any such Registration:
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(i) The Holders whose Registrable Securities are
to be included therein (the "Sellers") shall furnish the Company with such
appropriate information (relating to the intentions of such Holders) in
connection therewith as the Company shall reasonably request in writing.
Following the effective date of `such Registration Statement or notification,
the Company shall, upon the request of any Seller, forthwith supply such number
of Prospectuses or offering circulars meeting the requirements of the
Securities Act as shall be reasonably requested by such Seller to permit such
Seller to make a public offering of all such securities of such Seller included
therein. The Company shall file such Blue Sky Applications and use its best
efforts to qualify such securities included therein for sale in such states as
the Sellers shall reasonable designate.
(ii) The Company shall bear the cost and expense
directly relating to any registration of securities pursuant to this Section
9.1, provided, however, that the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to this Section 9.1 if
the Registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all Holders requesting such Registration shall bear such expenses). The
Company shall not be required to pay all selling commissions, but shall pay all
applicable listing fees.
(iii) The Company shall indemnify and hold harmless
each Seller and each Underwriter who may purchase from or sell for any Seller
any Registrable Securities Iron, and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus included therein, required to be filed or furnished by reason of
this Section 9.1, or caused by any omission or alleged omission to stale
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged omission was based upon information furnished
or required to be furnished in writing to the Company by and about such Seller
or Underwriter expressly for use therein, which indemnification shall include
each person, if any, who controls any such Seller or Underwriter within the
meaning of the Securities Act; provided, however, that the Company shall not be
obliged so to indemnify any such Seller or Underwriter or controlling person
unless such Seller and Underwriter shall at the same time indemnify the
Company, its directors, each officer signing a Registration Statement or
notification and each person, if any, who controls the Company within the
meaning of the Securities Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material face contained in any Registration Statement or
notification or any Prospect us or offering circular required to be filed or
furnished by reason of this Section 9.1, or caused by any omission or alleged
omission to slate therein a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading, insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement
or omission or alleged omission was based upon information furnished in writing
to the Company by and about such Seller or Underwriter expressly for use
therein.
(iv) The Company will, or will use its best
efforts to (i) prepare and file with the Commission a Registration Statement or
notification with respect to the Registrable
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Securities to be registered or qualified and cause such Registration Statement
or notification to become and remain effective; provided, that the Company will
not be required to keep the Registration Statement or notification effective,
or to prepare and file any amendments or supplements, later than nine months
after the date on which the Registration Statement or notification becomes
effective under the Securities Act.
(v) The Company shall, in case of a registration
or notification, furnish to the Holders of the Registrable Securities for whom
such Registrable Securities are registered or are to be registered or are filed
for notification, at the time such Registration Statement becomes effective, an
opinion of counsel, dated such date, for the Company reasonably acceptable to
the Holders to the effect that a Registration Statement or notification
covering the Registrable Securities has been filed with the commission under
the Securities Act and has become effective, that a prospectus or offering
circular complying in form with the requirements of the Securities Act is
available for delivery, that to the best of such counsel's knowledge, no stop
order has been issued by the Commission suspending t lie effectiveness of the
Registration Statement or suspending the availability of the offering exemption
and that, to the best of the counsel's knowledge, no proceedings for the
issuance of a stop order are threatened or contemplated, and that the
Registrable Securities have been registered or qualified under the securities
or Blue Sky Laws of each state in which the Company is required, pursuant to
subsection (c)(i) of this Section 9.110 register or qualify the Registrable
Securities and in which such registration or qualification cannot be effected
without undue effort or expense.
(vi) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 9.1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be reasonably required to effect the Registration of such
Holder's Registrable Securities.
9.2 Adjustment of Expiration Date. Notwithstanding any provision
contained herein to the contrary, in the event that a timely request is made
hereunder by the Holder of this Warrant or a Related Warrant to sell such
Registrable Securities in a registered public offering or pursuant to a
notification, and the holders thereof use reasonable efforts to cause such sale
to be made in a prompt manner, the Expiration Date shall be extended to a date
90 days following the effective date of registration of the Registrable
Securities included in such registration or notification, if the Expiration
Date would otherwise occur within such 90 day period.
9.3 Exchange Listing. In connection with the issuance of any
Units upon the exercise of this Warrant, the Company shall secure the listing
of the underlying shares of Common Stock and the Underlying Warrants upon any
securities exchange upon which shares of the Company's Common Stock and
Warrants are listed.
9.4 No Obligation to Sell. Neither the giving of any notice nor
the making of any request hereunder shall impose any obligation on the selling
Holder to sell any Registrable Securities Warrant or Units.
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9.5 Registration Rights Survive Exercise. The Company's
obligations under this Section 9 shall continue in effect, regardless of the
exercise or surrender of this Warrant. The Company's obligations under this
Section 9 shall expire, however, with respect to a Warrant, Related Warrant,
Unit or Related Unit or shares or Underlying Warrants which has been sold by a
broker or dealer or in a public offering registered under the Securities Act or
a public offering exempt from such registration.
Section 10. TRANSFER RESTRICTION
10.1 General. Anything contained herein to the contrary
notwithstanding, this Warrant may not be assigned, transferred, hypothecated or
sold during the initial twelve-month period of this Warrant, except that it (a)
may be transferred at any time by will or pursuant to the laws of descent and
distribution, or (b) may be assigned at any time in whole or in part to (i)
shareholders, directors, officers or partners (or shareholders of a corporate
partner) of the Underwriter(s) or family members who would take pursuant to a
will or the laws of descent and distribution (or trusts for their benefit) (i)
such persons, (ii) successors to the Underwriter(s) of the public offering in a
merger or consolidation or (iii) a purchaser of substantially all of the assets
of any Underwriter of the public offering. All of the foregoing shall be
deemed to be "Permitted Transfers". After the initial twelve-month period this
Warrant may be assigned, transferred, hypothecated or sold, provided, however,
that upon such transfer to a party other than a party included within the
definition of Permitted Transfers, above, (hereafter a Non-Related-Party
Transfer) the transferee must immediately (or as immediately as is
practicable), exercise their Warrant pursuant to Section 2 hereof. Any such
assignment or transfer shall be made by surrender of this Warrant to the
Company or at the office of its transfer agent, if any, with the Form of
Assignment annexed hereto duly executed and funds sufficient to pay any
transfer tax, whereupon the company shall, without charge, execute and deliver
a new Warrant in the name of the assignee and this Warrant shall promptly be
cancelled.
10.2 Securities Law Compliance. Except as provided in Section 10.1
above and except pursuant to the requirements of Rule 144 of the Securities
Act, this Warrant and the Units may not be sold, transferred, assigned or
otherwise disposed of except as follows:
(a) to a person who, in the opinion of counsel reasonably
satisfactory to the Company, is a person to whom this Warrant or the Units may
legally be transferred without registration and without the delivery of a
current prospectus or offering circular with respect thereto; or
(b) to any person upon delivery of a prospectus or
offering circular then meeting the requirements of the Securities Act relating
to such securities (as to which a Registration Statement or notification under
the Securities Act shall then be in effect) and the offering thereof for such
sale or disposition.
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Section 11. MISCELLANEOUS
11.1 Successors and Assigns. All the covenants and provisions of
this Warrant which are by or for the benefit of the Company or the Holders
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
11.2 Notice. Notice or demand pursuant to this Warrant to be
given) or made by the Holder to or on the Company shall be sufficiently given
or made if sent by registered mail, postage prepaid, receipt requested,
addressed, until another address is designated in writing by the Company, as
follows:
Alpha Microsystems
2722 South Fairview Street
Santa Ana, CA 92704
Any notice or demand authorized by this Warrant to be given or made by
the Company to or on the Holder shall be given to the Holder by registered
mail, postage prepaid, receipt requested, addressed at his last known address
as it shall appear on the books of the Company, until another address is
designated in writing, with a copy to G.L. Cabot Henderson, c/o Axiam
Incorporated, 58 Blackburn Center, Cloucester, Massachussets, 01930, by like
mail.
11.3 Applicable Law. The validity, interpretation and performance
of this Warrant shall be governed by the laws of the State of Rhode Island.
11.4 Headings. The Article headings herein are for convenience
only and are not part of this Warrant and shall not affect the interpretation
thereof.
Dated: April 30, 1996 ALPHA MICROSYSTEMS
By: /s/ DOUGLAS J. TULLIO
--------------------------------
Douglas J. Tullio, President
Attest: /s/ JOHN GLADE
----------------------------
John Glade, Secretary
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EXERCISE FORM
(To be Executed by the Warrant Holder if He, or She
Desires to Exercise the Warrant in Whole or in Part)
To: Alpha Microsystems
The undersigned (____________________________________________________________)
Please insert name and Social Security or number E.I.N. of Holder
hereby irrevocably elects to exercise the rights of purchase represented by the
within Warrant for, and to purchase thereunder, ___________ Units provided for
therein and tenders payment herewith to the order of Alpha Microsystems in the
amount of $________.
The undersigned requests that certificates for such Units be issued as follows:
Name:___________________________________________________________________________
Address:________________________________________________________________________
Deliver to:_____________________________________________________________________
Address:________________________________________________________________________
and, if said number of Units shall not be all the Units purchasable hereunder,
that a new Warrant for the balance remaining of the Units purchasable under the
within Warrant be registered in the name of, and delivered to, the undersigned
at the address stated below.
Address:________________________________________________________________________
Dated:________________,19_____
Signature:______________________________
Note: Signature must correspond with
the name as written upon the face of
this Warrant in every particular,
without alteration or enlargement or
any change whatsoever.
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FORM OF ASSIGNMENT
(To be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________ the right to purchase _______ Units evidenced by the within
Warrant, and appoints ____________________ to transfer the same on the books of
Alpha Microsystems with the full power of substitution in the premises.
Dated:________________,19_____
Signature:______________________________
Note: Signature must correspond with
the name as written upon the face of
this Warrant in every particular,
without alteration or enlargement or
any change whatsoever, and the signature
must be guaranteed in the usual manner.
Signature Guaranteed:
______________________________
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SCHEDULE OF WARRANT HOLDERS
Name ________________________________ Amount
Note: The Schedule is for use as a convenience at the closing of the
offering to which this Warrant relates so that only one Warrant need
be executed at the closing, it being understood that following the
closing, individual Warrants registered in the above names and amounts
will be issued promptly upon surrender of this Warrant.
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