EQUITY WARRANT
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK
ISSUABLE HEREUNDER, HAVE BEEN AND WILL BE ISSUED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
REGISTRATION UNDER THE ACT UNLESS EITHER (i) THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH
SUCH DISPOSITION OR (ii) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO
SECURITIES AND EXCHANGE COMMISSION RULE 144.
WARRANT TO PURCHASE COMMON STOCK OF PANJA INC.
(Subject to Adjustment)
NO. 001 December 15, 1999
THIS CERTIFIES THAT, for value received, Intel Corporation, or its permitted
registered assigns ("HOLDER"), is entitled, subject to the terms and
conditions of this Warrant, at any time or from time to time after the date
hereof (the "EFFECTIVE DATE"), and before 5:00 p.m. Pacific Time on the fifth
anniversary of the Effective Date (the "EXPIRATION DATE"), to purchase from
PANJA INC., a Texas corporation (the "Company"), two hundred thirty-eight
thousand fifty seven (238,057) shares of Common Stock of the Company at a
price per share of $21.54 (the "PURCHASE PRICE"). Both the number of shares
of Common Stock purchasable upon exercise of this Warrant and the Purchase
Price are subject to adjustment and change as provided herein.
1. CERTAIN DEFINITIONS. As used in this Warrant the following
terms shall have the following respective meanings:
1.1. "FAIR MARKET VALUE" of a share of Common Stock as of a
particular date shall mean:
(a) If traded on a securities exchange or the Nasdaq National
Market, the Fair Market Value shall be deemed to be the average of the
closing prices of the Common Stock of the Company on such exchange or
market over the five (5) trading days ending immediately prior to the
applicable date of valuation;
(b) If actively traded over-the-counter, the Fair Market Value
shall be deemed to be the average of the closing bid prices over the
thirty (30)-day period ending immediately prior to the applicable date
of valuation; and
(c) If there is no active public market, the Fair Market Value
shall be the value thereof, as agreed upon by the Company and the
Holder; provided,
however, that if the Company and the Holder cannot agree on such value,
such value shall be determined by an independent valuation firm
experienced in valuing businesses such as the Company and jointly
selected in good faith by the Company and the Holder. Fees and expenses
of the valuation firm shall be paid for by the Company.
1.2. "HSR ACT" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
1.3. "REGISTERED HOLDER" shall mean any Holder in whose name this
Warrant is registered upon the books and records maintained by the Company.
1.4. "WARRANT" as used herein, shall include this Warrant and any
warrant delivered in substitution or exchange therefor as provided herein.
1.5. "COMMON STOCK" shall mean the Common Stock of the Company and
any other securities at any time receivable or issuable upon exercise of this
Warrant.
2. EXERCISE OF WARRANT.
2.1 PAYMENT. Subject to compliance with the terms and
conditions of this Warrant and applicable securities laws, this Warrant may
be exercised, in whole or in part at any time or from time to time, on or
before the Expiration Date by the delivery (including, without limitation,
delivery by facsimile) of the form of Notice of Exercise attached hereto as
EXHIBIT 1 (the "NOTICE OF EXERCISE"), duly executed by the Holder, at the
principal office of the Company, and as soon as practicable after such date,
surrendering
(a) this Warrant at the principal office of the Company,
and
(b) payment, (i) in cash (by check) or by wire transfer,
(ii) by cancellation by the Holder of indebtedness of the Company to the
Holder; or (iii) by a combination of (i) and (ii), of an amount equal to
the product obtained by multiplying the number of shares of Common Stock
being purchased upon such exercise by the then effective Purchase Price
(the "EXERCISE AMOUNT"), except that if Holder is subject to HSR Act
Restrictions (as defined in Section 2.5 below), the Exercise Amount shall
be paid to the Company within five (5) business days of the termination of
all HSR Act Restrictions.
2.2. NET ISSUE EXERCISE. In lieu of the payment methods set forth in
Section 2.1(b) above, the Holder may elect to exchange all or some of this
Warrant for shares of Common Stock equal to the value of the amount of the
Warrant being exchanged on the date of exchange. If Holder elects to exchange
this Warrant as provided in this Section 2.2, Holder shall tender to the
Company the Warrant for the amount being exchanged, along with written notice
of Holder's election to exchange some or all of the Warrant, and the Company
shall issue to Holder the number of shares of the Common Stock computed using
the following formula:
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X = Y (A-B)
-------------
A
Where X = the number of shares of Common Stock to be
issued to Holder.
Y = the number of shares of Common Stock
purchasable under the amount of the
Warrant being exchanged (as adjusted to the
date of such calculation).
A = the Fair Market Value of one share of the
Common Stock.
B = Purchase Price (as adjusted to the date of
such calculation).
2.3. "EASY SALE" EXERCISE. In lieu of the payment methods set forth
in Section 2.1(b) above, when permitted by law and applicable regulations
(including Nasdaq and NASD rules), the Holder may pay the Exercise Amount
through a "same day sale" commitment from the Holder (and if applicable a
broker-dealer that is a member of the National Association of Securities
Dealers (a "NASD DEALER")), whereby the Holder irrevocably elects to exercise
this Warrant and to sell at least that number of Shares so purchased to pay
the Exercise Amount (and up to all of the Shares so purchased) and the Holder
(or, if applicable, the NASD Dealer) commits upon sale (or, in the case of
the NASD Dealer, upon receipt) of such Shares to forward the Exercise Amount
directly to the Company, with any sale proceeds in excess of the Exercise
Amount being for the benefit of the Holder.
2.4. STOCK CERTIFICATES; FRACTIONAL SHARES. As soon as practicable
on or after the date of any exercise of this Warrant, the Company shall issue
and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of whole shares of Common Stock
issuable upon such exercise, together with cash in lieu of any fraction of a
share equal to such fraction of the current Fair Market Value of one whole
share of Common Stock as of such date of exercise. No fractional shares or
scrip representing fractional shares shall be issued upon an exercise of this
Warrant.
2.5. HSR ACT. The Company hereby acknowledges that exercise of this
Warrant by Holder may subject the Company and/or the Holder to the filing
requirements of the HSR Act and that Holder may be prevented from exercising
this Warrant until the expiration or early termination of all waiting periods
imposed by the HSR Act ("HSR ACT RESTRICTIONS"). If on or before the
Expiration Date Holder has sent the Notice of Exercise to Company and Holder
has not been able to complete the exercise of this Warrant prior to the
Expiration Date because of HSR Act Restrictions, the Holder shall be entitled
to complete the process of exercising this Warrant for a period of 10
business days following termination of the HSR Act Restrictions, in
accordance with the procedures contained herein notwithstanding the fact that
completion of the exercise of this Warrant would take place after the
Expiration Date.
2.6. PARTIAL EXERCISE; EFFECTIVE DATE OF EXERCISE. In case of any
partial exercise of this Warrant, the Company shall cancel this Warrant upon
surrender hereof
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and shall execute and deliver a new Warrant of like tenor and date for the
balance of the shares of Common Stock purchasable hereunder. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above.
However, if Holder is subject to HSR Act filing requirements this Warrant
shall be deemed to have been exercised on the date immediately following the
date of the expiration of all HSR Act Restrictions. The person entitled to
receive the shares of Common Stock issuable upon exercise of this Warrant
shall be treated for all purposes as the holder of record of such shares as
of the close of business on the date the Holder is deemed to have exercised
this Warrant.
3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other governmental
charges that may be imposed in respect of the issue or delivery thereof. The
Company shall not be required to pay any tax or other charge imposed in
connection with any transfer involved in the issuance of any certificate for
shares of Common Stock in any name other than that of the Registered Holder
of this Warrant, and in such case the Company shall not be required to issue
or deliver any stock certificate or security until such tax or other charge
has been paid, or it has been established to the Company's reasonable
satisfaction that no tax or other charge is due.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of
shares of Common Stock issuable upon exercise of this Warrant (or any shares
of stock or other securities or property receivable or issuable upon exercise
of this Warrant) and the Purchase Price are subject to adjustment upon
occurrence of the following events:
4.1. ADJUSTMENT FOR STOCK SPLITS, STOCK SUBDIVISIONS OR COMBINATIONS
OF SHARES. The Purchase Price of this Warrant shall be proportionally
decreased and the number of shares of Common Stock issuable upon exercise of
this Warrant (or any shares of stock or other securities at the time issuable
upon exercise of this Warrant) shall be proportionally increased to reflect
any stock split or subdivision of the Company's Common Stock. The Purchase
Price of this Warrant shall be proportionally increased and the number of
shares of Common Stock issuable upon exercise of this Warrant (or any shares
of stock or other securities at the time issuable upon exercise of this
Warrant) shall be proportionally decreased to reflect any combination of the
Company's Common Stock.
4.2. ADJUSTMENT FOR DIVIDENDS OR DISTRIBUTIONS OF STOCK OR OTHER
SECURITIES OR PROPERTY. In case the Company shall make or issue, or shall fix
a record date for the determination of eligible holders entitled to receive,
a dividend or other distribution with respect to the Common Stock (or any
shares of stock or other securities at the time issuable upon exercise of the
Warrant) payable in (a) securities of the Company or (b) assets (excluding
cash dividends paid or payable solely out of retained earnings), then, in
each such case, the Holder of this Warrant on exercise hereof at any time
after the consummation, effective date or record date of such dividend or
other distribution, shall receive, in addition to the shares of Common Stock
(or such other stock or securities) issuable on such exercise prior to such
date, and without the payment of additional
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consideration therefor, the securities or such other assets of the Company to
which such Holder would have been entitled upon such date if such Holder had
exercised this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise,
retained such shares and all such additional securities or other assets
distributed with respect to such shares as aforesaid during such period
giving effect to all adjustments as provided in this Warrant.
4.3. RECLASSIFICATION. If the Company, by reclassification of
securities or otherwise, shall change any of the securities as to which
purchase rights under this Warrant exist into the same or a different number
of securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would
have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change, and the Purchase
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Warrant.
4.4 ADJUSTMENT FOR CAPITAL REORGANIZATION, MERGER OR CONSOLIDATION.
In case of any capital reorganization of the capital stock of the Company
(other than a combination, reclassification, exchange or subdivision of
shares otherwise provided for herein), or any merger or consolidation of the
Company with or into another corporation, or the sale of all or substantially
all the assets of the Company then, and in each such case, as a part of such
reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the Holder of this Warrant shall thereafter be entitled
to receive upon exercise of this Warrant, during the period specified herein
and upon payment of the Purchase Price then in effect, the number of shares
of stock or other securities or property of the successor corporation
resulting from such reorganization, merger, consolidation, sale or transfer
that a holder of the shares deliverable upon exercise of this Warrant would
have been entitled to receive in such reorganization, consolidation, merger,
sale or transfer if this Warrant had been exercised immediately before such
reorganization, merger, consolidation, sale or transfer, all subject to
further adjustment as provided in this Warrant. The foregoing provisions of
this Section 4.4 shall similarly apply to successive reorganizations,
consolidations, mergers, sales and transfers and to the stock or securities
of any other corporation that are at the time receivable upon the exercise of
this Warrant. If the per-share consideration payable to the Holder hereof for
shares in connection with any such transaction is in a form other than cash
or marketable securities, then the value of such consideration shall be
determined in good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the transaction,
to the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other
property deliverable after that event upon exercise of this Warrant.
4.5. CONVERSION OF COMMON STOCK. In case all of the authorized and
outstanding shares of Common Stock of the Company are redeemed or converted
or reclassified into other securities or property pursuant to the Company's
Articles of Incorporation or otherwise, or the Common Stock otherwise ceases
to exist, then, in such
5
case, the Holder of this Warrant, upon exercise hereof at any time after the
date on which the Common Stock is so redeemed or converted, reclassified or
ceases to exist (the "Termination Date"), shall receive, in lieu of the
number of shares of Common Stock that would have been issuable upon such
exercise immediately prior to the Termination Date, the securities or
property that would have been received if this Warrant had been exercised in
full and the Common Stock received thereupon had been simultaneously
converted immediately prior to the Termination Date, all subject to further
adjustment as provided in this Warrant. Additionally, the Purchase Price
shall be immediately adjusted to equal the quotient obtained by dividing (x)
the aggregate Purchase Price of the maximum number of shares of Common Stock
for which this Warrant was exercisable immediately prior to the Termination
Date by (y) the number of shares of Common Stock of the Company for which
this Warrant is exercisable immediately after the Termination Date, all
subject to further adjustment as provided herein.
5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in
the Purchase Price, or number or type of shares issuable upon exercise of
this Warrant, the Chief Financial Officer or Controller of the Company shall
compute such adjustment in accordance with the terms of this Warrant and
prepare a certificate setting forth such adjustment and showing in detail the
facts upon which such adjustment is based, including a statement of the
adjusted Purchase Price. The Company shall promptly send (by facsimile and by
either first class mail, postage prepaid or overnight delivery) a copy of
each such certificate to the Holder.
6. LOSS OR MUTILATION. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership of and the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to it, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor as the lost, stolen, destroyed or
mutilated Warrant.
7. RESERVATION OF COMMON STOCK. Subject to Section 4.5, the Company
hereby covenants that at all times there shall be reserved for issuance and
delivery upon exercise of this Warrant such number of shares of Common Stock
or other shares of capital stock of the Company as are from time to time
issuable upon exercise of this Warrant and, from time to time, will take all
steps necessary to amend its Articles of Incorporation to provide sufficient
reserves of shares of Common Stock issuable upon exercise of this Warrant.
All such shares shall be duly authorized, and when issued upon such exercise,
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 and free and clear of all preemptive rights, except encumbrances or
restrictions arising under federal or state securities laws. Issuance of this
Warrant shall constitute full authority to the Company's officers who are
charged with the duty of executing stock certificates to execute and issue
the necessary certificates for shares of Common Stock upon the exercise of
this Warrant.
8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of
this Warrant and compliance with all applicable securities laws, this Warrant
and all rights
6
hereunder may be transferred, in whole or in part, on the books of the
Company maintained for such purpose at the principal office of the Company
referred to above, by the Registered Holder hereof in person, or by duly
authorized attorney, upon surrender of this Warrant properly endorsed and
upon payment of any necessary transfer tax or other governmental charge
imposed upon such transfer. Upon any permitted partial transfer, the Company
will issue and deliver to the Registered Holder a new Warrant or Warrants
with respect to the shares of Common Stock not so transferred. Each taker and
holder of this Warrant, by taking or holding the same, consents and agrees
that when this Warrant shall have been so endorsed, the person in possession
of this Warrant may be treated by the Company, and all other persons dealing
with this Warrant, as the absolute owner hereof for any purpose and as the
person entitled to exercise the rights represented hereby, any notice to the
contrary notwithstanding; provided, however that until a transfer of this
Warrant is duly registered on the books of the Company, the Company may treat
the Registered Holder hereof as the owner for all purposes.
9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof,
agrees that, absent an effective registration statement filed with the
Securities and Exchange Commission (the "SEC") under the Securities Act
covering the disposition or sale of this Warrant or the Common Stock issued
or issuable upon exercise hereof, as the case may be, and registration or
qualification under applicable state securities laws, such Holder will not
sell, transfer, pledge, or hypothecate any or all of such Warrant or such
Common Stock, as the case may be, unless either (i) the Company has received
an opinion of counsel, in form and substance reasonably satisfactory to the
Company, to the effect that such registration is not required in connection
with such disposition or (ii) the sale of such securities is made pursuant to
SEC Rule 144.
10.COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant,
the Holder hereby represents, warrants and covenants that any shares of stock
purchased upon exercise of this Warrant shall be acquired for investment only
and not with a view to, or for sale in connection with, any distribution
thereof; that the Holder has had such opportunity as such Holder has deemed
adequate to obtain from representatives of the Company such information as is
necessary to permit the Holder to evaluate the merits and risks of its
investment in the Company; that the Holder is able to bear the economic risk
of holding such shares as may be acquired pursuant to the exercise of this
Warrant for an indefinite period; that the Holder understands that the shares
of stock acquired pursuant to the exercise of this Warrant will not be
registered under the 1933 Act (unless otherwise required pursuant to exercise
by the Holder of the registration rights, if any, granted to the Registered
Holder) and will be "restricted securities" within the meaning of Rule 144
under the 1933 Act and that the exemption from registration under Rule 144
will not be available for at least one (1) year from the date of exercise of
this Warrant, subject to any special treatment by the SEC for exercise of
this Warrant pursuant to Section 2.2, and even then will not be available
unless a public market then exists for the stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and that all stock certificates
representing shares of stock issued to the Holder upon exercise of this
Warrant or upon conversion of such shares may have affixed thereto a legend
substantially in the following form:
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not
entitle the Holder to any voting rights or other rights as a stockholder of
the Company. In the absence of affirmative action by such Holder to purchase
Common Stock by exercise of this Warrant, no provisions of this Warrant, and
no enumeration herein of the rights or privileges of the Holder hereof shall
cause such Holder hereof to be a stockholder of the Company for any purpose.
12. REGISTRATION RIGHTS. All shares of Common Stock issuable upon
exercise of this Warrant shall be "Registrable Securities" or such other
definition of securities entitled to registration rights pursuant to the
Securities Purchase and Investor Rights Agreement between the initial Holder
of this Warrant and the Company (the "SECURITIES PURCHASE AGREEMENT").
13. NOTICES. Except as may be otherwise provided herein, all
notices, requests, waivers and other communications made pursuant to this
Agreement shall be in writing and shall be conclusively deemed to have been
duly given (a) when hand delivered to the other party; (b) when received when
sent by facsimile at the address and number set forth below; (c) three
business days after deposit in the U.S. mail with first class or certified
mail receipt requested postage prepaid and addressed to the other party as
set forth below; or (d) the next business day after deposit with a national
overnight delivery service, postage prepaid, addressed to the parties as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
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To Holder: To the Company:
Intel Corporation Panja Inc.
2200 Mission College Blvd. 11995 Forrestgate Drive
Santa Clara, CA 95052 Dallas, Texas 95243
Attn: M&A Portfolio Manager Attn: Joe Hardt
Fax Number: (408) 765-6038 Fax Number: (972) 907-2053
With copies to: With copies to:
Intel Corporation Munsch, Hardt, Kopf & Harr, P.C.
2200 Mission College Blvd. 4000 Fountain Place
Santa Clara, CA 95052 1445 Ross Avenue
Attn: General Counsel Dallas, Texas 75202
Fax Number: (408) 765-1859 Attention: A. Michael Hainsfurther
Facsimile No.: (214) 855-7584
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed
each communication made by it by facsimile pursuant hereto but the absence of
such confirmation shall not affect the validity of any such communication. A
party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section 13 by giving the other
party written notice of the new address in the manner set forth above.
14. HEADINGS. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.
15. LAW GOVERNING. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware.
16. NO IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, sale of
assets or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the Registered Holder of this Warrant against impairment. Without
limiting the generality of the foregoing, the Company (a) will not increase
the par value of any shares of stock issuable upon the exercise of this
Warrant above the amount payable therefor upon such exercise, and (b) will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and non-assessable shares of
Common Stock upon exercise of this Warrant.
9
17. NOTICES OF RECORD DATE. In case:
17.1. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise
of this Warrant), for the purpose of entitling them to receive any dividend
or other distribution, or any right to subscribe for or purchase any shares
of stock of any class or any other securities or to receive any other right;
or
17.2. of any consolidation or merger of the Company with or into
another corporation, any capital reorganization of the Company, any
reclassification of the Capital Stock of the Company, or any conveyance of
all or substantially all of the assets of the Company to another corporation
in which holders of the Company's stock are to receive stock, securities or
property of another corporation; or
17.3. of any voluntary dissolution, liquidation or winding-up of
the Company; or
17.4. of any redemption or conversion of all outstanding Common
Stock;
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation, winding-up, redemption or conversion is to take
place, and the time, if any is to be fixed, as of which the holders of record
of Common Stock or (such stock or securities as at the time are receivable
upon the exercise of this Warrant), shall be entitled to exchange their
shares of Common Stock (or such other stock or securities), for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up.
Such notice shall be delivered at least thirty (30) days prior to the date
therein specified.
18. SEVERABILITY. If any term, provision, covenant or restriction of
this Warrant is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Warrant shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
19. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Warrant may be executed by the parties hereto and each
such executed counterpart shall be, and shall be deemed to be, an original
instrument.
20. NON-CONTRAVENTION. The execution, delivery and performance of
this Warrant by the Company on and after the date of this Warrant, and the
consummation by the Company of the transactions contemplated by this Warrant
(including issuance of the Common Stock hereunder), do not and will not: (i)
contravene or conflict with the Articles of Incorporation or Bylaws of the
Company; (ii) constitute a violation of any provision of any federal, state,
local or foreign law binding upon or applicable to the Company; or (iii)
constitute a default or require any consent under, give rise to any right of
termination, cancellation or acceleration of, or to a loss of any benefit to
which the Company is entitled under, or result in the creation or imposition
10
of any lien, claim or encumbrance on any assets of the Company under, any
contract to which the Company is a party or any permit, license or similar
right relating to the Company or by which the Company may be bound or
affected.
21. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on
a Saturday, Sunday or legal holiday, the Expiration Date shall automatically
be extended until 5:00 p.m. the next business day.
22. CONFIDENTIALITY. The existence and terms of this Agreement shall
be deemed to be Confidential Information as such term is defined in Section
7(c) of the Securities Purchase Agreement and any disclosure of the existence
or terms of this Agreement shall be governed by the provisions of Section
7(c) of the Securities Purchase Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as
of the Effective Date.
INTEL CORPORATION PANJA INC.
/s/ Arvind Sodhani /s/ Joe Hardt
- ----------------------------------- -----------------------------------
By By
Arvind Sodhani Joe Hardt
- ----------------------------------- -----------------------------------
Printed Name Printed Name
Vice President and Treasurer President and Chief Executive Officer
- ----------------------------------- -----------------------------------
Title Title
[SIGNATURE PAGE TO PANJA INC. EQUITY WARRANT]
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EXHIBIT 1
NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
PANJA INC.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase
thereunder, the securities PANJA INC., as provided for therein, and (check
the applicable box):
/ / tenders herewith payment of the exercise price in full in the form of
cash or a certified or official bank check in same-day funds in the
amount of $____________ for _________ such securities.
/ / Elects the Net Issue Exercise or Easy Sale Exercise option pursuant to
Section 2.2 or 2.3 of the Warrant, and accordingly requests delivery
of a net of ______________ of such securities.
Please issue a certificate or certificates for such securities in the name
of, and pay any cash for any fractional share to (please print name, address
and social security number):
Name:
--------------------------------------------------------------------
Address:
--------------------------------------------------------------------
Signature:
--------------------------------------------------------------------
Note: The above signature should correspond exactly with the name on the
first page of this Warrant Certificate or with the name of the assignee
appearing in the assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher whole number of shares.
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EXHIBIT 2
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, hereby sells, assigns and transfers unto
____________________________ the within Warrant Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ____________________________ attorney, to transfer said Warrant
Certificate on the books of the within-named Company with respect to the number
of Warrants set forth below, with full power of substitution in the premises:
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NAME(S) OF ASSIGNEE(S) ADDRESS # OF WARRANTS
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And if said number of Warrants shall not be all the Warrants represented by
the Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the Warrants registered
by said Warrant Certificate.
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Dated:
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Signature:
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Notice: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this security in every particular, without
alteration or any change whatsoever; signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock brokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to Securities and Exchange Commission
Rule 17Ad-15.
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