Exhibit 10.7(e)
AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 4, dated as of February 18, 1994, is
between Concurrent Computer Corporation (the "Company"), Fleet
Bank of Massachusetts, N.A. ("Fleet") and CIBC Inc. (the
"Lenders").
WHEREAS, the Company has requested the Lenders to agree to
amend the Second Amended and Restated Credit Agreement dated as
of July 21, 1993, as amended by Amendment No. 1 to Second Amended
and Restated Credit Agreement dated as of September 28, 1993,
Amendment No. 2 to Second Amended and Restated Credit Agreement
dated as of November 10, 1993 and Amendment No. 3 to Second
Amended and Restated Credit Agreement dated as of November 18,
1993 (the "Credit Agreement") between the Company, the Lenders
and Fleet, as Agent for the Lenders by, among other things,
changing certain financial covenants;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the Company and, pursuant
to Section 12.04 of the Credit Agreement, the Lenders hereby
agree as follows:
1. Terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement.
2. Section 4.01 of the Credit Agreement is amended by
replacing the last sentence thereof with the following language:
"The Company agrees that to the extent the
aggregate of the principal balance of the Term
Loans and the face amount of the outstanding
Standby L/C's exceeds $25,312,500 on April 1, 1994,
it shall pay directly to the Lenders one-half of
such excess on or before September 30, 1994 and the
balance thereof on or before December 31, 1994."
3. Notwithstanding anything to the contrary contained in
the Credit Agreement, in calculating the Tangible Capital Base
Covenant contained in Section 9.27 of the Credit Agreement, the
Company shall give effect to Financial Accounting Standards 106
and 109.
4. Section 9.28 of the Credit Agreement is amended by
replacing "2.30 to 1" and "2.25 to 1" for the fiscal quarters
ending March 31, 1994 and June 30, 1994, respectively, with
"4.05 to 1" and "1.70 to 1".
5. Section 9.29 of the Credit Agreement is deleted and
replaced with the following language:
"9.29. Debt Service Coverage Ratio. The Company
will not, as at the end of any fiscal quarter,
permit the ratio of (a) EBITDA to (b) the sum of
(i) Interest Expense for such period, plus (ii) all
scheduled principal payments due on money borrowed
from any source for such quarter, plus (iii) all
lease payments in respect of Capital Lease
Obligations during such quarter, to be less than
2.25 to 1.0. Notwithstanding the foregoing, (a)
any scheduled monthly principal installment
deferred pursuant to Section 4.01 hereof shall not
constitute a "scheduled principal payment" for any
fiscal quarter other than the fiscal quarter during
which such installment originally was due, and (b)
for the fiscal quarters ending March 31, 1994 and
June 30, 1994, the above ratio shall not be less
than 1.40 to 1 and 2.20 to 1, respectively."
6. Section 9.30 of the Credit Agreement is amended by
replacing "2,500,000" with "$100,000".
7. Section 9.31 of the Credit Agreement is deleted and
replaced with the following language:
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"9.31. Domestic Liquid Assets. The Company will
not permit Domestic Liquid Assets at the end of
each fiscal month to be less than the amount set
forth below opposite each such month. For purposes
hereof, "Domestic Liquid Assets" shall mean the sum
of (a) domestic cash and cash equivalent, (b)
Eligible Accounts Receivable, and (c) domestic
inventory.
Fiscal Month Ending Domestic Liquid Assets
January 31, 1994 $27,500,000
February 28, 1994 $27,500,000
March 31, 1994 $28,500,000
April 30, 1994 $26,500,000
May 31, 1994 $25,500,000
June 30, 1994 and each $28,500,000"
fiscal month thereafter
8. Within 15 Banking Days of the end of each fiscal
month, the Company shall deliver to each of the Lenders and the
Agent, a Domestic Liquid Assets Compliance Certificate in the
form of Exhibit A attached hereto.
9. Section 9.32 of the Credit Agreement is amended by
replacing ".60 to 1" for the fiscal quarter ending March 31,
1994 with .55 to 1". For purposes of calculating the Quick
Ratio Covenant contained in Section 9.32 of the Credit
Agreement, the obligations of the Company to (a) pay directly to
the Lenders the excess of the aggregate of the principal balance
of the Term Loans and the face amount of the outstanding Standby
L/C's over $25,312,500 in accordance with Section 4.01 of the
Credit Agreement, and (b) make a final balloon payment on the
Maturity Date also in accordance with such Section 4.01, shall
not be classified as "current liabilities" under subsection (b)
of Section 9.32.
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10. Section 9.33 of the Credit Agreement is amended by
replacing "3.00 to 1" and "2.50 to 1" for the fiscal quarters
ending March 31, 1994 and June 30, 1994, respectively, with
"2.50 to 1" and "2.30 to 1". Notwithstanding anything to the
contrary contained in the Credit Agreement, in calculating the
Maximum Leverage Ratio contained in Section 9.33 of the Credit
Agreement, the Company shall not give effect to Financial
Accounting Standards 106 and 109.
11. With respect to the fiscal quarter ending December 31,
1993, the Lenders hereby waive the Company's obligations under
Sections 9.29, 9.30 and 9.32 of the Credit Agreement.
12. Schedule II to Exhibit C of the Credit Agreement is
amended by replacing (a) "2,500,000" in paragraph 6 thereof
(Section 9.30 Net Income) with "$100,000", and (b) "28,500,000"
in paragraph 7 thereof (Section 9.31 Domestic Liquid Assets) with
"$____________".
13. In consideration for entering into this Amendment No.
4, the Company shall issue to each of the Lenders a warrant
evidencing the right of each Lender to purchase 300,000 shares of
the Company's common stock.
14. Except as otherwise expressly provided above, (a) all
terms and conditions of the Credit Agreement shall remain in full
force and effect and are hereby ratified and confirmed, and (b)
the execution, delivery and effectiveness of this Amendment No. 4
shall not operate as a waiver of any right, power or remedy of
any Lender or the Agent under any of the Basic Documents, nor
constitute a waiver of any provision under any of such Documents.
15. Other than with respect to Sections 8.04, 9.29, 9.30
and 9.32 of the Credit Agreement, the Company represents and
warrants that (a) the representations and warranties set forth in
the Credit Agreement are true and accurate as of the date hereof,
and (b) no Specified Event exists.
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16. This Amendment No. 4 only shall be effective upon (a)
the issuance by the Company to each of the Lenders of a duly
executed warrant to purchase 300,000 shares of the Company's
common stock, the forms of which are attached hereto as Exhibit B
and Exhibit C, respectively, (b) an opinion from the General
Counsel of the Company in form and substance satisfactory to the
Agent and Lenders, and (c) an original certificate from the
Delaware Secretary of State dated on or after February 14, 1994
certifying the Company's good standing and legal existence.
17. This Amendment No. 4 may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument and any of the other parties hereto may
execute this Amendment No. 4 by signing any such counterpart.
This Amendment No. 4 shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 4 to be duly executed as of the date first above written.
CONCURRENT COMPUTER CORPORATION
By:_____________________________________
FLEET BANK OF MASSACHUSETTS, N.A.
By:_____________________________________
CIBC INC.
By:______________________________________
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Exhibit A
DOMESTIC LIQUID ASSETS COMPLIANCE CERTIFICATE
Monthly fiscal period ending ___________, 199_
Reference is made to be Second Amended and Restated Credit
Agreement dated as of July 21, 1993 (as modified and supplemental
and in effect from time to time, the "Credit Agreement") between
the Lenders, Agent and Concurrent Computer Corporation
("Company"). Terms defined in the Credit Agreement are used as
defined herein.
The officer executing this certificate* on behalf of the
Company hereby certifies that, to be best of [his/her] knowledge,
the Company is in compliance with Section 9.31 of the Credit
Agreement as at the end of the monthly fiscal period ending
________, 199_ as set forth in the attached Annex 1 and as
determined in accordance with the requirements of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
certificate to be duly executed as of the ______ day of
______________, 199_.
CONCURRENT COMPUTER CORPORATION
By:________________________________
Title:
* Must be signed by the president, chief executive officer,
chief financial officer or controller of the Company
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERRED UPON
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (ii) UPON FIRST FURNISHING TO THE
COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH
TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF
THE ACT OR ANY APPLICABLE STATE SECURITIES LAW. THIS WARRANT IS
ALSO SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
WARRANT
THIS WARRANT dated as of February 18, 1994, between
CONCURRENT COMPUTER, a Delaware corporation (the "Company") and
FLEET BANK OF MASSACHUSETTS, N.A. ("Fleet"). Capitalized terms
used herein shall have the meanings ascribed to them in the
Second Amended and Restated Credit Agreement between Fleet, CIBC
Inc., the Company and Fleet, as agent, dated July 21, 1993, as
amended ("Credit Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to Amendment No. 4 to Second Amended and
Restated Credit Agreement dated as of February 18, 1994, the
Company has agreed to issue to Fleet this warrant (the "Warrant")
of the Company, which entitles Fleet to purchase, upon the terms
and conditions hereinafter set forth, shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
GRANT OF WARRANT
This Warrant entitles Fleet to purchase, at a price per
share equal to the Exercise Price per share (as defined in
Section 2.1 hereof), Three Hundred Thousand (300,000) shares of
Common Stock, subject to adjustment as set forth in Section 3.4
hereof.
ARTICLE II
EXERCISE OF WARRANT; EXERCISE PRICE
Section 2.1 Exercise Price. This Warrant shall entitle
Fleet, subject to the provisions of this Article II, to purchase
from the Company the number of shares of Common Stock provided
for in Article I, at a purchase price per share equal to $1.50
(the closing price per share on February 18, 1994), which shall
be payable by wire transfer to a designated account of the
Company or cashier's check in the manner set forth in Section
2.3.
Section 2.2 Right to Exercise the Warrant. This Warrant
may be exercised in full at any time during the period from the
date hereof through September 30, 1994 (the "Termination Date"),
subject to extension pursuant to Section 2.5 below.
Section 2.3 Procedure for Exercising the Warrant. Fleet
may exercise this Warrant by executing the Form of Election
attached hereto as Exhibit A and delivering it to the Company on
any business day during normal business hours and tendering the
aggregate Exercise Price of which at least the dollar amount
representing the par value of the number of shares of Common
Stock issuable upon such election shall be payable upon such
election with the balance of the aggregate Exercise Price, if
any, payable within five business days of such election (the date
of receipt of such Form of Election and the minimum amount of the
aggregate Exercise Price by the Company is hereinafter referred
to as the "Exercise Date").
Section 2.4 Issuance of Shares. Within five (5) business
days following the Exercise Date, the Company shall (provided
that it has received the Form of Election duly executed,
accompanied by payment of the Exercise Price pursuant to
Section 2.1 hereof for each of the shares of Common Stock to be
purchased) execute and deliver to Fleet a certificate or
certificates for the number of shares of Common Stock for which
this Warrant is being exercised.
Section 2.5 Extension of Termination Date. The
Termination Date may be extended as set forth below.
(a) November 15, 1994. In the event that the Lenders
notify the Company in writing on or before September 26, 1994
that the payments (the "Payments") due to the Lenders on or
before September 30, 1994 and December 31, 1994 pursuant to
Section 4.01 of the Credit Agreement may be deferred by the
Company to on or before November 15, 1994 and February 15, 1995,
respectively, the Termination Date shall be extended through
November 15, 1994.
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(b) June 30, 1995. In the event that the Termination
Date is extended to November 15, 1994 pursuant to paragraph (a)
above and the Lenders notify the Company in writing on or before
November 10, 1994 that the Payments may be deferred by the
Company to on or before June 30, 1995, the Termination Date shall
be extended through June 30, 1995.
(c) Maturity Date of Restructured Term Loans. In the
event that the Warrant has not expired and the Term Loans are
restructured by written agreement by and between the Company and
the Lenders on or before December 15, 1994, the Termination Date
shall be extended through the maturity date of the restructured
Term Loan.
(d) Suspension Notice Extension. Notwithstanding and
in addition to any other extension of the Termination Date
pursuant to paragraphs (a), (b) or (c) above, upon the Company's
giving a Suspension Notice to Fleet, the Termination Date
automatically shall be extended by the number of days equal to
the Extension Days, as defined in Section 4.4 hereof.
ARTICLE III
RESERVATION AND AVAILABILITY OF SHARES; ANTI-DILUTION
Section 3.1 Reservation of Shares. The Company covenants
and agrees that it will reserve and keep available out of its
authorized and unissued Common Stock, or its authorized and
issued Common Stock held in its treasury, the number of shares of
Common Stock that will be sufficient to permit the exercise in
full of this Warrant.
Section 3.2 Shares to be Duly Authorized and Issued. The
Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Common Stock
delivered upon exercise of this Warrant shall, at the time of
delivery of the certificates for such shares, be duly and validly
authorized and issued.
Section 3.3 Stock Record Date. Each person or entity in
whose name any certificate for shares of Common Stock is issued
upon the exercise of this Warrant shall for all purposes be
deemed to have become the holder of record of the shares of
Common Stock represented thereby on, and such certificate shall
be dated, the date upon which the Form of Election was duly
executed and payment of the aggregate Exercise Price therefor was
made. Prior to the exercise of this Warrant, Fleet shall not be
entitled to any rights of a stockholder of the Company with
respect to the shares of Common Stock for which this Warrant
shall be exercisable, including, without limitation, the right to
vote or to receive dividends or other distributions and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
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Section 3.4 Anti-Dilution Adjustment and Reorganizations.
(a) Common Stock Dividend, Subdivisions and
Contributions. In the event of any change in the shares of
Common Stock by reason of stock dividend, split up, merger,
recapitalization, subdivision, conversion, combination, exchange
of shares or similar transactions, the type and number of Common
Stock issuable under the Warrant and the Exercise Price therefor
shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction, so that Fleet
shall receive upon exercise of the Warrant the number and class
of shares or other securities or property that Fleet would have
held immediately after such event if the Warrant had been
exercised immediately prior to such event, or the record date
therefor, as applicable.
(b) Reorganizations. In case of any consolidation or
merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or the sale of
the property of the Company as an entirety or substantially as an
entirety (collectively such actions being hereinafter referred to
as "Reorganizations"), there shall thereafter be deliverable upon
exercise of this Warrant (in lieu of the number of shares of
Common Stock theretofore deliverable) the number of shares of
stock or other securities or property to which a holder of the
number of shares of Common Stock (on an as-converted basis) which
would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this
Warrant had been exercised immediately prior to such
Reorganization. In the event of sale or conveyance or other
transfer of all or substantially all of the assets of the Company
as a part of a plan for liquidation of the Company, all rights to
exercise this Warrant shall terminate thirty (30) days after the
Company gives written notice to Fleet that such sale or
conveyance or other transfer has been consummated.
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ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 Definitions. For purposes of this Agreement,
the following terms shall have the following respective meanings:
(a) "Affiliate" shall have the meaning set forth in
Rule 12b-2 under the Securities Exchange Act of 1934, as in
effect as of the date hereof.
(b) "Registrable Securities" shall mean (i) shares of
Common Stock issuable to Fleet or an Affiliate of Fleet upon
exercise of this Warrant, (ii) shares of Common Stock issued to
Fleet or an Affiliate of Fleet pursuant to the exercise of this
Warrant that remain issued and outstanding and owned by Fleet or
an Affiliate of Fleet following such exercise, and (iii) any
shares of Common Stock that are issued as a dividend or other
distribution with respect to, or in exchange for or conversion or
replacement of, any of the shares referenced in clause (ii) above
pursuant to Section 3.4 of the Warrant and that remain issued and
outstanding and owned by Fleet or an Affiliate of Fleet following
exercise of this Warrant; provided, however, that Registrable
Securities shall not include any of the foregoing shares that
have been sold in a distribution pursuant to a registered public
offering or sold under Rule 144 of the Securities Act of 1933, as
amended (the "Act").
(c) "Registration Expenses" shall mean all expenses
incurred by the Company in compliance with this Article IV,
including, without limitation, all registration, qualifying and
filing fees, printing expenses, fees and disbursements of counsel
for the Company, blue sky fees and expenses, and any accounting
fees and expenses incident to or required by any such
registration (but excluding the Selling Expenses which shall be
paid by the persons who are selling the securities).
(d) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of the
Registrable Securities and all fees and disbursements of special
independent counsel for the persons who are selling such
securities.
Section 4.2 Registration Rights. The Company shall (a)
cause a registration statement (the "Registration Statement")
relating to the Registrable Securities to be filed under the Act,
on an appropriate form on or before April 30, 1994 and to cause
appropriate filings to be made under the laws of various state
jurisdictions specified by Fleet and (b) use its best efforts
consistent with its responsibilities under the Act and related
securities laws to have the Registration Statement declared
effective on or before June 30, 1994 ("Initial Registration
Date").
Section 4.3 Expenses of Registration. All Registration
Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Article IV shall be
borne by the Company, and all Selling Expenses shall be borne by
the persons who are selling Registrable Securities.
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Section 4.4 Registration Procedures. In the case of the
registration effected by the Company pursuant to this Article IV,
the Company will keep Fleet advised in writing as to the
initiation of the registration and as to the completion thereof.
At its expense, the Company will:
(a) use its best efforts to keep the Registration
Statement effective from the Initial Registration Date until the
date which is 18 months after the Termination Date; provided that
Rule 415, or any successor rule under the Act, permits an
offering on a continuous or delayed basis, and provided further
that applicable rules under the Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-
effective amendment which (i) includes any prospectus required by
Section 10(a)(3) of the Act or (ii) reflects facts or events
representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by
reference of information required to be included in clauses (i)
and (ii) above to be contained in periodic reports filed pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 in
the registration statement; and
(b) furnish such number of prospectuses and other
documents incident thereto as Fleet from time to time may
reasonably request.
Notwithstanding anything to the contrary contained herein, upon
receipt of any notice (a "Suspension Notice") from the Company of
the happening of any event which makes any statement made in the
Registration Statement or related prospectus untrue or which
requires the making of any changes in such Registration Statement
or prospectus so that they will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein in
light of the circumstances they were made not misleading, Fleet
shall forthwith discontinue disposition of the Registrable
Securities pursuant to the Registration Statement covering such
Registrable Securities until Fleet's receipt of the copies of the
supplemented or amended prospectus filed with the Securities and
Exchange Commission which does not contain an untrue statement of
a material fact or omit a material fact necessary to make any
statement therein not misleading or until Fleet is advised in
writing (the "Advice") by the Company that the use of such
prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by
reference in the subject prospectus; provided, however, that the
Company shall not give more than one Suspension Notice during any
period of twelve consecutive months and in no event shall the
period from the date on which Fleet receives a Suspension Notice
to the date on which Fleet receives either the Advice or copies
of the above supplemented or amended prospectus exceed 60 days.
In the event that the Company shall give any Suspension Notice,
(i) the Company shall use commercially reasonable efforts and
take such actions as are reasonably necessary to render the
Advice as promptly as practicable and (ii) the time periods for
which a Registration Statement is required to be kept effective
pursuant to Section 4.4 hereof shall be extended by the number of
days (the "Extension Days") during the period from and including
the date of the giving of such notice to and including the date
when Fleet shall have received (x) the copies of the supplemented
or amended prospectus or (y) the Advice.
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Section 4.5 Indemnification.
(a) The Company will, and does hereby undertake to,
indemnify each of the Lenders, each of its Affiliates, and each
person who controls either of the Lenders (within the meaning of
the Act and the rules and regulations thereunder), on whose
behalf registration, qualification or compliance has been
effected pursuant to this Article IV, from and against all
expenses, claims, losses, damages and liabilities (or actions in
respect thereof to which they become subject), including
settlement of any litigation, commenced or threatened, to which
they may become subject, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact
contained in any registration statement, including any
preliminary or final prospectus contained therein or any
amendment thereto, or other document incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Act, any rule or regulation thereunder or any other federal,
state or common law rule, regulation or statute applicable to the
Company and relating to action or inaction required of the
Company in connection with any such registration, qualification
or compliance, and will reimburse each of the Lenders, each of
its Affiliates, and each person who controls either of the
Lenders for the reasonable legal costs of one counsel for such
Lenders, or one separate counsel for each of the Lenders in the
event either of the Lenders in its reasonable discretion believes
there is a conflict of interest or other circumstances which
would make it appropriate to be represented by separate counsel,
and other expenses reasonably incurred in connection with
investigating, preparing and defending any such claim, loss,
damage, liability or action; provided that the Company will not
be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises from or is based on any
untrue statement or omission or alleged untrue statement or
omission based upon written information furnished to the Company
by Fleet or any of its Affiliates, or any person who controls
Fleet, expressly for use therein.
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(b) Fleet will, if Registrable Securities held by it
are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter,
if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or
such underwriter (within the meaning of the Act and the rules and
regulations thereunder), each other shareholder whose securities
are included in the securities as to which such registration,
qualification or compliance is being effected, and each of their
officers, directors and partners, and each person who controls
such shareholder, against all claims, losses, damages and
liabilities (or actions in respect thereof to which they become
subject), including settlement of any litigation, commenced or
threatened, to which they may become subject, arising out of or
based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement,
including any preliminary or final prospectus contained therein
or any amendment thereto, or other document incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such
shareholders, directors, officers, partners, persons,
underwriters or controlling persons for any legal or any other
expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement or alleged omission) is
made in such registration statement, including any preliminary or
final prospectus contained therein or any amendment thereto, or
other document in reliance upon and in conformity with written
information furnished to the Company by Fleet or any Affiliate of
Fleet expressly for use therein. In no event, however, shall the
liability of Fleet or any Affiliate of Fleet for indemnification
under this Section 4.6(b) exceed the proceeds received by Fleet
or any Affiliates of Fleet from the sale of Registrable
Securities under such registration statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, and the
Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article IV. No
Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified
Party (which consent shall not unreasonably be withheld), consent
to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself
or the claim in question as an Indemnifying Party may reasonably
request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting
therefrom.
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Section 4.6 Information by Fleet. Fleet and its
Affiliates shall furnish to the Company such information
regarding Fleet and the distribution proposed by Fleet and its
Affiliates as the Company may request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to in this Article IV.
ARTICLE V
PURCHASER REPRESENTATIONS, WARRANTIES AND COVENANTS
Fleet represents and warrants to and covenants with, the
Company, as follows:
Section 5.1 Representations. It is acquiring the Warrant
for investment for its own account and not with the view to, or
for resale in connection with, any distribution thereof. It has
no present intention of selling, granting participation in, or
otherwise distributing the Warrant or the shares of Common Stock
issuable upon exercise thereof other than to an Affiliate of
Fleet. It understands that the Warrant and the shares of Common
Stock issuable upon exercise thereof have not been registered
under the Securities Act, or any state blue sky laws. It
acknowledges that the Warrant and the shares of Common Stock
issuable upon exercise thereof must be held indefinitely unless
they are subsequently registered under the Act or an exemption
from such registration is available. It has been advised or is
aware of the provisions of Rules 144 and 144A promulgated under
the Act, which permit the resale of shares purchased in a private
placement subject to the satisfaction of certain conditions and
that such Rules may not be available for resale of the shares.
Section 5.2 Restrictive Legend. Each certificate
representing shares of the Company's Common Stock issuable upon
exercise of the Warrant, or any other securities issued in
respect of the Common Stock issued upon exercise of the Warrant,
upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted
or unless the securities evidenced by such certificate shall have
been registered under the Securities Act) be stamped or otherwise
imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities
laws):
9
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT, IN THE CIRCUMSTANCES, REQUIRED, OR
EVIDENCE SATISFACTORY TO THE COMPANY THAT THE SHARES HAVE
BEEN SOLD IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SAID
ACT.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. Notices or demands relating to this
Warrant shall be sufficiently given or made if sent to the party
to whom notice is being given by first-class mail, postage
prepaid, addressed as follows, or telexed, telecopied, or
delivered by overnight or other courier:
If to Fleet:
Fleet Bank of Massachusetts, N. A.
75 State Street
Boston, MA 02109
Attn: Thomas J. Bullard
with a copy to
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Jon D. Schneider, P.C.
If to the Company:
Concurrent Computer Corporation
2 Crescent Place
Oceanport, NJ 07724
Attn: Vice President, General Counsel
Section 6.2 Successors. All of the covenants and
provisions of this Warrant by or for the benefit of the Company
or Fleet shall bind and inure to the benefit of their respective
successors and permitted assigns hereunder.
10
Section 6.3 THIS WARRANT, AND ALL QUESTIONS RELATING TO
THE INTERPRETATION, CONSTRUCTION AND ENFORCEABILITY OF THIS
WARRANT, SHALL BE GOVERNED IN ALL RESPECTS BY THE SUBSTANTIVE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
Section 6.4 Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Warrant may not be
amended, modified or supplemented, other than by a written
instrument executed by the Company and Fleet.
Section 6.5 Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall
not be in any way impaired thereby, it being intended that all of
the rights and privileges of Fleet shall be enforceable to the
fullest extent permitted by law.
Section 6.6 Transferability. The Warrant shall be
transferable in whole but not in part to an Affiliate of Fleet,
and after December 15, 1994, to the extent then exercisable, to
other than an Affiliate of Fleet, and the Company upon being
provided with evidence satisfactory to it of such transfer and of
compliance with the Act and related securities laws, shall issue
a new Warrant certificate in the name of such transferee. In the
event of any transfer other than to an Affiliate, the
registration provisions of Section 4 hereof shall not apply to
shares of Common Stock or otherwise Registrable Securities
issuable upon exercise of such transferred Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant to be duly executed and delivered, all as of the date and
year first above written.
CONCURRENT COMPUTER CORPORATION
By:____________________________
Name:
Title:
FLEET BANK OF MASSACHUSETTS
By:____________________________
Name:
Title:
11
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant)
CONCURRENT COMPUTER CORPORATION
2 Crescent Place
Oceanport, NJ 07724
Ladies and Gentlemen:
The undersigned hereby irrevocably elects to exercise
_________ Warrants to purchase ___________ (_____) of the shares
of Common Stock issuable upon the exercise of such Warrant and
requests that certificates for such shares be issued in the name
of:
___________________________________________________________
(Please print name and address)
___________________________________________________________
The undersigned hereby makes payment by wire
transfer/cashier's check in the amount of $_________ toward the
aggregate Exercise Price of $_______ and irrevocably promises to
pay the balance, if any, of the aggregate Exercise Price within
five business days of the date hereof.
Please insert social security or other identifying number
_____________________.
Dated:_______________, 19____.
FLEET BANK OF MASSACHUSETTS, N.A.
By:__________________________________
Name:
Title:
12
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERRED UPON
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (ii) UPON FIRST FURNISHING TO THE
COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH
TRANSFER IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF
THE ACT OR ANY APPLICABLE STATE SECURITIES LAW. THIS WARRANT IS
ALSO SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
WARRANT
THIS WARRANT dated as of February 18, 1994, between
CONCURRENT COMPUTER, a Delaware corporation (the "Company") and
CIBC Inc. ("CIBC"). Capitalized terms used herein shall have the
meanings ascribed to them in the Second Amended and Restated
Credit Agreement between Fleet Bank of Massachusetts, N.A.
("Fleet"), CIBC, the Company and Fleet, as agent, dated July 21,
1993, as amended ("Credit Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to Amendment No. 4 to Second Amended and
Restated Credit Agreement dated as of February 18, 1994, the
Company has agreed to issue to CIBC this warrant (the "Warrant")
of the Company, which entitles CIBC to purchase, upon the terms
and conditions hereinafter set forth, shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
GRANT OF WARRANT
This Warrant entitles CIBC to purchase, at a price per share
equal to the Exercise Price per share (as defined in Section 2.1
hereof), Three Hundred Thousand (300,000) shares of Common Stock,
subject to adjustment as set forth in Section 3.4 hereof.
ARTICLE II
EXERCISE OF WARRANT; EXERCISE PRICE
Section 2.1 Exercise Price. This Warrant shall entitle
CIBC, subject to the provisions of this Article II, to purchase
from the Company the number of shares of Common Stock provided
for in Article I, at a purchase price per share equal to $1.50
(the closing price per share on February 18, 1994), which shall
be payable by wire transfer to a designated account of the
Company or cashier's check in the manner set forth in Section
2.3.
Section 2.2 Right to Exercise the Warrant. This Warrant
may be exercised in full at any time during the period from the
date hereof through September 30, 1994 (the "Termination Date"),
subject to extension pursuant to Section 2.5 below.
Section 2.3 Procedure for Exercising the Warrant. CIBC
may exercise this Warrant by executing the Form of Election
attached hereto as Exhibit A and delivering it to the Company on
any business day during normal business hours and tendering the
aggregate Exercise Price of which at least the dollar amount
representing the par value of the number of shares of Common
Stock issuable upon such election shall be payable upon such
election with the balance of the aggregate Exercise Price, if
any, payable within five business days of such election (the date
of receipt of such Form of Election and the minimum amount of the
aggregate Exercise Price by the Company is hereinafter referred
to as the "Exercise Date").
Section 2.4 Issuance of Shares. Within five (5) business
days following the Exercise Date, the Company shall (provided
that it has received the Form of Election duly executed,
accompanied by payment of the Exercise Price pursuant to
Section 2.1 hereof for each of the shares of Common Stock to be
purchased) execute and deliver to CIBC a certificate or
certificates for the number of shares of Common Stock for which
this Warrant is being exercised.
Section 2.5 Extension of Termination Date. The
Termination Date may be extended as set forth below.
(a) November 15, 1994. In the event that the Lenders
notify the Company in writing on or before September 26, 1994
that the payments (the "Payments") due to the Lenders on or
before September 30, 1994 and December 31, 1994 pursuant to
Section 4.01 of the Credit Agreement may be deferred by the
Company to on or before November 15, 1994 and February 15, 1995,
respectively, the Termination Date shall be extended through
November 15, 1994.
2
(b) June 30, 1995. In the event that the Termination
Date is extended to November 15, 1994 pursuant to paragraph (a)
above and the Lenders notify the Company in writing on or before
November 10, 1994 that the Payments may be deferred by the
Company to on or before June 30, 1995, the Termination Date shall
be extended through June 30, 1995.
(c) Maturity Date of Restructured Term Loans. In the
event that the Warrant has not expired and the Term Loans are
restructured by written agreement by and between the Company and
the Lenders on or before December 15, 1994, the Termination Date
shall be extended through the maturity date of the restructured
Term Loan.
(d) Suspension Notice Extension. Notwithstanding and
in addition to any other extension of the Termination Date
pursuant to paragraphs (a), (b) or (c) above, upon the Company's
giving a Suspension Notice to CIBC, the Termination Date
automatically shall be extended by the number of days equal to
the Extension Days, as defined in Section 4.4 hereof.
ARTICLE III
RESERVATION AND AVAILABILITY OF SHARES; ANTI-DILUTION
Section 3.1 Reservation of Shares. The Company covenants
and agrees that it will reserve and keep available out of its
authorized and unissued Common Stock, or its authorized and
issued Common Stock held in its treasury, the number of shares of
Common Stock that will be sufficient to permit the exercise in
full of this Warrant.
Section 3.2 Shares to be Duly Authorized and Issued. The
Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Common Stock
delivered upon exercise of this Warrant shall, at the time of
delivery of the certificates for such shares, be duly and validly
authorized and issued.
Section 3.3 Stock Record Date. Each person or entity in
whose name any certificate for shares of Common Stock is issued
upon the exercise of this Warrant shall for all purposes be
deemed to have become the holder of record of the shares of
Common Stock represented thereby on, and such certificate shall
be dated, the date upon which the Form of Election was duly
executed and payment of the aggregate Exercise Price therefor was
made. Prior to the exercise of this Warrant, CIBC shall not be
entitled to any rights of a stockholder of the Company with
respect to the shares of Common Stock for which this Warrant
shall be exercisable, including, without limitation, the right to
vote or to receive dividends or other distributions and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
3
Section 3.4 Anti-Dilution Adjustment and Reorganizations.
(a) Common Stock Dividend, Subdivisions and
Contributions. In the event of any change in the shares of
Common Stock by reason of stock dividend, split up, merger,
recapitalization, subdivision, conversion, combination, exchange
of shares or similar transactions, the type and number of Common
Stock issuable under the Warrant and the Exercise Price therefor
shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction, so that CIBC
shall receive upon exercise of the Warrant the number and class
of shares or other securities or property that CIBC would have
held immediately after such event if the Warrant had been
exercised immediately prior to such event, or the record date
therefor, as applicable.
(b) Reorganizations. In case of any consolidation or
merger of the Company with or into another corporation (other
than a merger or consolidation in which the Company is the
continuing corporation and which does not result in any
reclassification of the outstanding shares of Common Stock or the
conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or the sale of
the property of the Company as an entirety or substantially as an
entirety (collectively such actions being hereinafter referred to
as "Reorganizations"), there shall thereafter be deliverable upon
exercise of this Warrant (in lieu of the number of shares of
Common Stock theretofore deliverable) the number of shares of
stock or other securities or property to which a holder of the
number of shares of Common Stock (on an as-converted basis) which
would otherwise have been deliverable upon the exercise of this
Warrant would have been entitled upon such Reorganization if this
Warrant had been exercised immediately prior to such
Reorganization. In the event of sale or conveyance or other
transfer of all or substantially all of the assets of the Company
as a part of a plan for liquidation of the Company, all rights to
exercise this Warrant shall terminate thirty (30) days after the
Company gives written notice to CIBC that such sale or conveyance
or other transfer has been consummated.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 Definitions. For purposes of this Agreement,
the following terms shall have the following respective meanings:
4
(a) "Affiliate" shall have the meaning set forth in
Rule 12b-2 under the Securities Exchange Act of 1934, as in
effect as of the date hereof.
(b) "Registrable Securities" shall mean (i) shares of
Common Stock issuable to CIBC or an Affiliate of CIBC upon
exercise of this Warrant, (ii) shares of Common Stock issued to
CIBC or an Affiliate of CIBC pursuant to the exercise of this
Warrant that remain issued and outstanding and owned by CIBC or
an Affiliate of CIBC following such exercise, and (iii) any
shares of Common Stock that are issued as a dividend or other
distribution with respect to, or in exchange for or conversion or
replacement of, any of the shares referenced in clause (ii) above
pursuant to Section 3.4 of the Warrant and that remain issued and
outstanding and owned by CIBC or an Affiliate of CIBC following
exercise of this Warrant; provided, however, that Registrable
Securities shall not include any of the foregoing shares that
have been sold in a distribution pursuant to a registered public
offering or sold under Rule 144 of the Securities Act of 1933, as
amended (the "Act").
(c) "Registration Expenses" shall mean all expenses
incurred by the Company in compliance with this Article IV,
including, without limitation, all registration, qualifying and
filing fees, printing expenses, fees and disbursements of counsel
for the Company, blue sky fees and expenses, and any accounting
fees and expenses incident to or required by any such
registration (but excluding the Selling Expenses which shall be
paid by the persons who are selling the securities).
(d) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of the
Registrable Securities and all fees and disbursements of special
independent counsel for the persons who are selling such
securities.
Section 4.2 Registration Rights. The Company shall (a)
cause a registration statement (the "Registration Statement")
relating to the Registrable Securities to be filed under the Act,
on an appropriate form on or before April 30, 1994 and to cause
appropriate filings to be made under the laws of various state
jurisdictions specified by CIBC and (b) use its best efforts
consistent with its responsibilities under the Act and related
securities laws to have the Registration Statement declared
effective on or before June 30, 1994 ("Initial Registration
Date").
5
Section 4.3 Expenses of Registration. All Registration
Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Article IV shall be
borne by the Company, and all Selling Expenses shall be borne by
the persons who are selling Registrable Securities.
Section 4.4 Registration Procedures. In the case of the
registration effected by the Company pursuant to this Article IV,
the Company will keep CIBC advised in writing as to the
initiation of the registration and as to the completion thereof.
At its expense, the Company will:
(a) use its best efforts to keep the Registration
Statement effective from the Initial Registration Date until the
date which is 18 months after the Termination Date; provided that
Rule 415, or any successor rule under the Act, permits an
offering on a continuous or delayed basis, and provided further
that applicable rules under the Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-
effective amendment which (i) includes any prospectus required by
Section 10(a)(3) of the Act or (ii) reflects facts or events
representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by
reference of information required to be included in clauses (i)
and (ii) above to be contained in periodic reports filed pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 in
the registration statement; and
(b) furnish such number of prospectuses and other
documents incident thereto as CIBC from time to time may
reasonably request.
Notwithstanding anything to the contrary contained herein, upon
receipt of any notice (a "Suspension Notice") from the Company of
the happening of any event which makes any statement made in the
Registration Statement or related prospectus untrue or which
requires the making of any changes in such Registration Statement
or prospectus so that they will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein in
light of the circumstances they were made not misleading, CIBC
shall forthwith discontinue disposition of the Registrable
Securities pursuant to the Registration Statement covering such
Registrable Securities until CIBC's receipt of the copies of the
supplemented or amended prospectus filed with the Securities and
Exchange Commission which does not contain an untrue statement of
a material fact or omit a material fact necessary to make any
statement therein not misleading or until CIBC is advised in
writing (the "Advice") by the Company that the use of such
prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by
reference in the subject prospectus; provided, however, that the
Company shall not give more than one Suspension Notice during any
period of twelve consecutive months and in no event shall the
period from the date on which CIBC receives a Suspension Notice
to the date on which CIBC receives either the Advice or copies of
the above supplemented or amended prospectus exceed 60 days. In
the event that the Company shall give any Suspension Notice,
(i) the Company shall use commercially reasonable efforts and
take such actions as are reasonably necessary to render the
Advice as promptly as practicable and (ii) the time periods for
which a Registration Statement is required to be kept effective
pursuant to Section 4.4 hereof shall be extended by the number of
days (the "Extension Days") during the period from and including
the date of the giving of such notice to and including the date
when CIBC shall have received (x) the copies of the supplemented
or amended prospectus or (y) the Advice.
6
Section 4.5 Indemnification.
(a) The Company will, and does hereby undertake to,
indemnify each of the Lenders, each of its Affiliates, and each
person who controls either of the Lenders (within the meaning of
the Act and the rules and regulations thereunder), on whose
behalf registration, qualification or compliance has been
effected pursuant to this Article IV, from and against all
expenses, claims, losses, damages and liabilities (or actions in
respect thereof to which they become subject), including
settlement of any litigation, commenced or threatened, to which
they may become subject, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact
contained in any registration statement, including any
preliminary or final prospectus contained therein or any
amendment thereto, or other document incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Act, any rule or regulation thereunder or any other federal,
state or common law rule, regulation or statute applicable to the
Company and relating to action or inaction required of the
Company in connection with any such registration, qualification
or compliance, and will reimburse each of the Lenders, each of
its Affiliates, and each person who controls either of the
Lenders for the reasonable legal costs of one counsel for such
Lenders, or one separate counsel for each of the Lenders in the
event either of the Lenders in its reasonable discretion believes
there is a conflict of interest or other circumstances which
would make it appropriate to be represented by separate counsel,
and other expenses reasonably incurred in connection with
investigating, preparing and defending any such claim, loss,
damage, liability or action; provided that the Company will not
be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises from or is based on any
untrue statement or omission or alleged untrue statement or
omission based upon written information furnished to the Company
by CIBC or any of its Affiliates, or any person who controls
CIBC, expressly for use therein.
(b) CIBC will, if Registrable Securities held by it
are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter,
if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or
such underwriter (within the meaning of the Act and the rules and
regulations thereunder), each other shareholder whose securities
are included in the securities as to which such registration,
qualification or compliance is being effected, and each of their
officers, directors and partners, and each person who controls
such shareholder, against all claims, losses, damages and
liabilities (or actions in respect thereof to which they become
subject), including settlement of any litigation, commenced or
7
threatened, to which they may become subject, arising out of or
based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement,
including any preliminary or final prospectus contained therein
or any amendment thereto, or other document incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such
shareholders, directors, officers, partners, persons,
underwriters or controlling persons for any legal or any other
expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement or alleged omission) is
made in such registration statement, including any preliminary or
final prospectus contained therein or any amendment thereto, or
other document in reliance upon and in conformity with written
information furnished to the Company by CIBC or any Affiliate of
CIBC expressly for use therein. In no event, however, shall the
liability of CIBC or any Affiliate of CIBC for indemnification
under this Section 4.6(b) exceed the proceeds received by CIBC or
any Affiliates of CIBC from the sale of Registrable Securities
under such registration statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, and the
Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article IV. No
Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified
Party (which consent shall not unreasonably be withheld), consent
to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself
or the claim in question as an Indemnifying Party may reasonably
request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting
therefrom.
8
Section 4.6 Information by CIBC. CIBC and its Affiliates
shall furnish to the Company such information regarding CIBC and
the distribution proposed by CIBC and its Affiliates as the
Company may request in writing and as shall be required in
connection with any registration, qualification or compliance
referred to in this Article IV.
ARTICLE V
PURCHASER REPRESENTATIONS, WARRANTIES AND COVENANTS
CIBC represents and warrants to and covenants with, the
Company, as follows:
Section 5.1 Representations. It is acquiring the Warrant
for investment for its own account and not with the view to, or
for resale in connection with, any distribution thereof. It has
no present intention of selling, granting participation in, or
otherwise distributing the Warrant or the shares of Common Stock
issuable upon exercise thereof other than to an Affiliate of
CIBC. It understands that the Warrant and the shares of Common
Stock issuable upon exercise thereof have not been registered
under the Securities Act, or any state blue sky laws. It
acknowledges that the Warrant and the shares of Common Stock
issuable upon exercise thereof must be held indefinitely unless
they are subsequently registered under the Act or an exemption
from such registration is available. It has been advised or is
aware of the provisions of Rules 144 and 144A promulgated under
the Act, which permit the resale of shares purchased in a private
placement subject to the satisfaction of certain conditions and
that such Rules may not be available for resale of the shares.
Section 5.2 Restrictive Legend. Each certificate
representing shares of the Company's Common Stock issuable upon
exercise of the Warrant, or any other securities issued in
respect of the Common Stock issued upon exercise of the Warrant,
upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted
or unless the securities evidenced by such certificate shall have
been registered under the Securities Act) be stamped or otherwise
imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities
laws):
9
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT, IN THE CIRCUMSTANCES, REQUIRED, OR
EVIDENCE SATISFACTORY TO THE COMPANY THAT THE SHARES HAVE
BEEN SOLD IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SAID
ACT.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. Notices or demands relating to this
Warrant shall be sufficiently given or made if sent to the party
to whom notice is being given by first-class mail, postage
prepaid, addressed as follows, or telexed, telecopied, or
delivered by overnight or other courier:
If to CIBC:
CIBC Inc.
Embarcadero Center
West Tower
275 Battery Street, Suite 1840
San Francisco, CA 94111
Attn: Thomas R. Wagner
with a copy to
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Jon D. Schneider, P.C.
If to the Company:
Concurrent Computer Corporation
2 Crescent Place
Oceanport, NJ 07724
Attn: Vice President, General Counsel
Section 6.2 Successors. All of the covenants and
provisions of this Warrant by or for the benefit of the Company
or CIBC shall bind and inure to the benefit of their respective
successors and permitted assigns hereunder.
10
Section 6.3 THIS WARRANT, AND ALL QUESTIONS RELATING TO
THE INTERPRETATION, CONSTRUCTION AND ENFORCEABILITY OF THIS
WARRANT, SHALL BE GOVERNED IN ALL RESPECTS BY THE SUBSTANTIVE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
Section 6.4 Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Warrant may not be
amended, modified or supplemented, other than by a written
instrument executed by the Company and CIBC.
Section 6.5 Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall
not be in any way impaired thereby, it being intended that all of
the rights and privileges of CIBC shall be enforceable to the
fullest extent permitted by law.
Section 6.6 Transferability. The Warrant shall be
transferable in whole but not in part to an Affiliate of CIBC,
and after December 15, 1994, to the extent then exercisable, to
other than an Affiliate of CIBC, and the Company upon being
provided with evidence satisfactory to it of such transfer and of
compliance with the Act and related securities laws, shall issue
a new Warrant certificate in the name of such transferee. In the
event of any transfer other than to an Affiliate, the
registration provisions of Section 4 hereof shall not apply to
shares of Common Stock or otherwise Registrable Securities
issuable upon exercise of such transferred Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant to be duly executed and delivered, all as of the date and
year first above written.
CONCURRENT COMPUTER CORPORATION
By: _______________________________
Name:
Title:
CIBC INC.
By:________________________________
Name:
Title:
11
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant)
CONCURRENT COMPUTER CORPORATION
2 Crescent Place
Oceanport, NJ 07724
Ladies and Gentlemen:
The undersigned hereby irrevocably elects to exercise
Warrants to purchase ( )
of the shares of Common Stock issuable upon the exercise of such
Warrant and requests that certificates for such shares be issued
in the name of:
(Please print name and address)
The undersigned hereby makes payment by wire
transfer/cashier's check in the amount of $_________ toward the
aggregate Exercise Price of $_______ and irrevocably promises to
pay the balance, if any, of the aggregate Exercise Price within
five business days of the date hereof.
Please insert social security or other identifying number
Dated:_________________, 19__.
CIBC INC.
By:_________________________
Name:
Title:
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