EXHIBIT 4.03
THE SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. NO SALE OR OTHER DISPOSITION OR PLEDGE OF THESE
SECURITIES MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING
THERETO OR AN EXEMPTION THEREFROM OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT A PROPOSED DISPOSITION OR PLEDGE IS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR A NO ACTION LETTER OR INTERPRETIVE OPINION
OF THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT.
RADIUS INC.
WARRANT
VOID AFTER September 13, 2000
1. THE WARRANT.
(a) THE GRANTING OF A WARRANT. This Warrant is executed and
delivered by Radius Inc., a California corporation (the "COMPANY"), to IBM
Credit Corporation ("Holder").
(b) NUMBER AND PRICE OF SHARES SUBJECT TO WARRANT. Subject to the
terms and conditions herein set forth, Holder is entitled to purchase from the
Company, at any time commencing on the date hereof (the "EXERCISE COMMENCEMENT
DATE") until this Warrant has expired in accordance with subparagraph (e) below,
600,000 shares of fully paid and non-assessable shares of Common Stock of the
Company (the "SHARES") at a purchase price of $____ per share (the "WARRANT
PRICE"). The number and purchase price of such shares are subject to
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adjustment pursuant to paragraph 2 hereof. This Warrant will be exercisable by
the holder at any time after the earlier to occur of (i) effectiveness of a
Registration Statement pursuant to the Securities Act of 1933, as amended, with
respect to the Shares, or (ii) six months from the date of the issuance hereof
by its giving to the Company written notice of its intent to exercise ("EXERCISE
NOTICE") on or before the expiration of this Warrant, in the form attached
hereto as ATTACHMENT 1. Upon giving such notice, the Holder will surrender this
Warrant at the principal office of the Company and pay the full purchase price
for the Shares to be acquired upon payment in cash or by check.
(c) NET EXERCISE. In lieu of exercising this Warrant pursuant to
Section 1(b) above, the holder may elect to receive a number of Shares to be
calculated as follows:
X = Y(A-B)
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A
where X = the number of shares of Common Stock to be issued to the holder.
Y = the number of shares of Common Stock requested to be
exercised under this Warrant.
A = the fair market value of one (1) share of Common Stock.
B = the Exercise Price.
For purposes of the above calculation, current fair market value of Common
Stock shall mean with respect to each share of Common Stock:
(i) if traded on a national securities exchange or the Nasdaq National
Market (or similar national quotation system), the fair market value shall
be deemed to be the closing price (last reported sale) on the day the
current fair market value of the securities is being determined;
(ii) if traded over-the-counter, the fair market value shall be deemed to
be the closing bid price quoted on the day the current fair market value of
the securities is being determined; or
(iii) if at any time the Common Stock is not traded as described in (i) or
(ii) above, the current fair market value shall be the highest price per
share which the Company could obtain from a willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by its Board of
Directors, unless the Company shall become subject to a merger, acquisition
or other consolidation pursuant to which the Company is not the surviving
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party, in which case the fair market value shall be deemed to be the value
received by the holders of the Company's Common Stock on a common
equivalent basis pursuant to such merger or acquisition.
(d) EFFECT OF EXERCISE. 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, and the person entitled to receive the
Shares issuable upon such exercise shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date. As
soon as practicable on or after such date, the Company shall issue and deliver
to the person or persons entitled to receive the same a certificate or
certificates for the number of Shares issuable upon such exercise.
(e) TERM. This Warrant shall terminate and expire as of 5:00 p.m.
local California time four (4) years from the date of issuance thereof, unless
exercised in whole prior to that date.
(f) PARTIAL EXERCISE. This Warrant may be exercised by the holder
from time to time as to all or a portion of the Shares subject hereto. In the
event that this Warrant is exercised as to only a portion of the Shares subject
hereto, the Company will, upon issuance of the Shares so acquired, deliver to
the holder a new Warrant representing the remaining Shares subject hereto.
2. (a) ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. In case at any
time or from time to time on or after the effective date hereof the holders of
the Common Stock of the Company (or any shares of stock or other securities at
the time receivable upon the exercise of this Warrant) shall have received, or,
on or after the record date fixed for the determination of eligible
shareholders, shall have become entitled to receive, without payment therefor,
other or additional stock of the Company by way of dividend, then and in each
case, the holder of this Warrant shall, upon the exercise hereof, be entitled to
receive, in addition to the number of shares of Common Stock receivable
thereupon, and without payment of any additional consideration therefor, the
amount of such other or additional stock of the Company which such holder would
hold on the date of such exercise had it been the holder of record of such
Common Stock 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/or all other additional stock receivable by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
paragraphs (b) and (c) of this paragraph 2.
(b) ADJUSTMENT FOR RECLASSIFICATION, REORGANIZATION OR MERGER. In
case of any reclassification or change of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the exercise of
this Warrant) on or after the date hereof, or in case, after such
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date, the Company (or any such other corporation) shall merge with or into
another corporation or convey all or substantially all of its assets to another
corporation, then and in each such case the holder or this Warrant, upon the
exercise hereof at any time after the consummation of such reclassification,
change, reorganization, merger or conveyance, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
hereof prior to such consummation, the stock or other securities or property to
which such holder would have been entitled upon such consummation if such holder
had exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in paragraphs (a) and (c); in each such case, the terms
of this paragraph 2 shall be applicable to the shares of stock or other
securities properly receivable upon the exercise of this Warrant after such
consummation.
(c) STOCK SPLITS AND REVERSE STOCK SPLITS. If at any time on or
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the
number of shares receivable upon exercise of the Warrant shall be
proportionately increased; and, conversely, if at any time on or after the date
hereof the outstanding number of shares of Common Stock shall be combined into a
smaller number of shares, the Warrant Price in effect immediately prior to such
combination shall be proportionately increased and the number of shares
receivable upon exercise of the Warrant shall be proportionately decreased.
4. Holder represents and warrants to, and agrees with, the Company, that:
(a) PURCHASE FOR OWN ACCOUNT. This Warrant and the Warrant Shares are
being acquired for investment for Holder's own account, not as a nominee or
agent, and not with a view to the public resale or distribution thereof within
the meaning of the Act, and such Holder has no present intention of selling,
granting any participation in, or otherwise distributing the same.
(b) DISCLOSURE OF INFORMATION. Holder has received or has had full
access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Warrant. Holder has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the Warrant and the Warrant Shares and to obtain
additional information necessary to verify any information furnished to Holder
or to which Holder had access.
(c) INVESTMENT EXPERIENCE. Holder understands that the receipt of
the Warrants and the purchase of the Warrant Shares involves substantial risk.
Holder: (i) has experience as an investor in securities of companies in the
development stage and acknowledges
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that it is able to fend for itself, can bear the economic risk of such
investment in the Warrants and Warrant Shares and has such knowledge and
experience in financial or business matters that Holder is capable of evaluating
the merits and risks of this investment in the Warrants and Warrant Shares and
protecting its own interests in connection with this investment and/or (ii) has
a preexisting personal or business relationship with the Company and certain of
its officers, directors or controlling persons of a nature and duration that
enables Holder to be aware of the character, business acumen and financial
circumstances of such persons.
(d) RESTRICTED SECURITIES. Holder understands that the Warrants and
the Warrant Shares are characterized as "restricted securities" under the
Securities Act inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under the Securities Act
and applicable regulations thereunder such securities may be resold without
registration under the Securities Act only in certain limited circumstances. In
this connection, Holder represents that Holder is familiar with Rule 144 of the
U.S. Securities and Exchange Commission, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act. Holder
understands that the Company is under no obligation to register any of the
securities sold hereunder except as provided in any written registration rights
agreement between the Company and Holder. Holder understands that no public
market now exists for the Warrant any of the Warrant Shares and that it is
uncertain whether a public market will ever exist for the Warrant Shares.
(e) FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, Holder further agrees not to make any
disposition of the Warrant or all or any portion of the Warrant Shares unless
and until:
(i) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) (A) Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) Holder shall have
furnished the Company, at the expense of Holder or its transferee, with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the
Securities Act.
Notwithstanding the provisions of paragraphs (i) and (ii) above, no such
registration statement or opinion of counsel shall be required: (1) for any
transfer of any Warrant Shares in
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compliance with SEC Rule 144 or (2) for the transfer by gift, will or intestate
succession by Holder to his or her spouse or lineal descendants or ancestors or
any trust for any of the foregoing; PROVIDED that in each of the foregoing cases
the transferee agrees in writing to be subject to the terms of this Section 4 to
the same extent as if the transferee were the original Holder hereunder.
(f) LEGENDS. It is understood that the certificates evidencing the
Warrant Shares will bear the legends set forth below:
(i) THE SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY STATE. NO SALE OR OTHER DISPOSITION OR
PLEDGE OF THESE SECURITIES MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATING THERETO OR AN EXEMPTION THEREFROM OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT A PROPOSED DISPOSITION OR PLEDGE IS PERMITTED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR A NO ACTION LETTER OR
INTERPRETIVE OPINION OF THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.
(ii) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations and
Sections 417 and 418 if the California Corporations Code or any other state
securities laws.
The legend set forth in (i) above shall be removed by the Company from any
certificate evidencing Warrant Shares upon delivery to the Company of an opinion
by counsel, reasonably satisfactory to the Company, that a registration
statement under the Securities Act is at that time in effect with respect to the
legended security or that such security can be freely transferred in a public
sale without such a registration statement being in effect and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Warrant Shares.
(g) ACCREDITED INVESTOR STATUS. Holder is an "accredited investor"
within the meaning of Regulation D promulgated under the 1933 Act.
5. OTHER ADJUSTMENTS. Except as provided in paragraph 2, no adjustment
on account of dividends or interest on Common Stock will be made upon the
exercise hereof.
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6. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
7. NO SHAREHOLDER RIGHTS. This Warrant shall not entitle its holder to
any of the rights of a shareholder of the Company.
8. EXERCISE OF WARRANT. The holder's ability to exercise this Warrant is
subject to the Company having obtained all necessary governmental approvals
prior to such exercise. The Company shall use its best efforts to obtain such
consents after the date hereof. Subject to such approvals, this Warrant may be
exercised by the registered holder or its registered assigns, in minimum
increments of 100,000 shares of Common Stock (or any remaining shares of Common
Stock subject to this Warrant if the number of shares of Common Stock subject to
this Warrant is less than 100,000) by the surrender of this Warrant at the
principal office of the Company, accompanied by payment in full of the Warrant
Price as described above. A 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, and the person entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of such Shares of record as of the close of business on such date.
As promptly as practicable on or after such date, the Company shall issue and
deliver to the person or persons entitled to receive the same, a certificate or
certificates for the number of full shares of Common Stock issuable upon such
exercise, together with cash in lieu of any fraction of a share as provided
above.
9. CERTIFICATE OF ADJUSTMENT. Whenever the Warrant Price is adjusted, as
herein provided, upon written request by the holder, the Company shall deliver
to the record holder of this Warrant a certificate of an officer of the Company
setting forth the Warrant Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
10. RESTRICTIONS ON TRANSFER OF WARRANT. This Warrant and all rights
hereunder are transferable, in whole or in part. The terms of this Warrant
shall be binding upon the successors and assigns of the holder.
11. MARKET STANDOFF AGREEMENT. Each holder hereby agrees that it shall
not, to the extent requested by an underwriter of securities of the Company,
sell or otherwise transfer or dispose of any Shares (other than to donees or
partners of the holder who agree to be similarly bound) for up to one hundred
eighty (180) days following the effective date of a registration statement of
the Company filed under the Act; PROVIDED, HOWEVER, that all officers and
directors of the Company then holding Common Stock of the Company enter into
similar agreements. In order to enforce the foregoing covenant, the Company
shall have the right to place restrictive legends on the certificates
representing the Shares and to impose stop transfer instructions with
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respect to the Shares (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
12. MISCELLANEOUS. This Warrant shall be governed by the laws of the
State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated except by an instrument in writing signed by the
Company and the registered holder hereof. All notices and other communications
from the Company to the holder of this Warrant shall be mailed by first-class
registered or certified mail, postage prepaid, to the address furnished to the
Company in writing by the last holder of this Warrant who shall have furnished
an address to the Company in writing.
ISSUED this 13th day of September 1996.
HOLDER RADIUS INC.
IBM Credit Corporation
By: /s/ Philip N. Morse By: /s/ Charles W. Berger
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