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EXHIBIT 10.31
Exhibit A-3
No. W- Warrant to Purchase 100,000
------------------- Shares of Common Stock
of MRV Communications, Inc.
WARRANT TO PURCHASE COMMON STOCK
OF
MRV COMMUNICATIONS, INC.
Void after November 26, 1999
This certifies that, for value received, INTEL CORPORATION, or registered
assigns (the "Holder") is entitled, subject to the terms set forth below, to
purchase from MRV COMMUNICATIONS, INC. (the "Company"), a Delaware corporation,
100,000 shares of the Common Stock, par value $.0034 per share ("Common Stock")
of the Company, as constituted on the date hereof (the "Warrant Issue Date"),
upon surrender hereof, at the principal office of the Company referred to below,
with the subscription form attached hereto duly executed, and simultaneous
payment therefor in lawful money of the United States of otherwise as
hereinafter provided, at the Exercise Price as set forth in Section 2 below. The
number, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, and any warrants delivered in substitution or exchange therefor as
provided herein.
1. Exerciseability of Warrant. Subject to the terms and conditions
set forth herein, this Warrant shall be exercisable if, and only if, royalty
payments paid by the Holder to the Company pursuant to Section 4.1 of that
certain Resale and Manufacturing License Agreement, dated as of the Warrant
Issue Date, for the period beginning on January 1, 1997 and ending on December
31, 1997 are equal to or greater than $2,700,000. Immediately upon the
satisfaction of the condition set forth in the preceding sentence, this Warrant
may be exercised, in whole or in part, during the period commencing immediately
upon such satisfaction and ending at 5:00 P.M., Pacific time, on November 26,
1999, and shall be void thereafter. Notwithstanding the foregoing, this Warrant
shall not be exercisable prior to February 25, 1997.
2. Exercise Price. The Exercise Price at which this Warrant may
be exercised shall be $20.00 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time, or from time to
time, during the term hereof as described in Section 1 above, by the surrender
of this Warrant and the Notice of Exercise annexed hereto duly completed and
executed on behalf of the Holder, at the office of the Company (or such other
office or agency of the Company as it may designate by notice in writing
to the Holder at the
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address of the Holder appearing on the books of the Company), upon payment in
cash or by check of the purchase price of the shares to be purchased.
(b) In lieu of exercising this Warrant pursuant to
Section 3(a) above, when permitted by law and applicable regulations (including
Nasdaq and NASD rules), the Holder may pay Exercise Price 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 a
portion of the Shares so purchased to pay for the Exercise Price 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 price directly
to the Company.
(c) 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 of
Common Stock 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
promptly as practicable on or after such date and in any event within ten (10)
days thereafter, the Company at its expense 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. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation surrender and cancellation of this Warrant, the
Company at its expense shall execute and deliver, in lieu of this Warrant, a new
warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11 of this
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock for any purpose, nor shall anything contained
herein be construed to confer upon the Holder, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action or to receive notice of meetings, or to
receive dividends or subscription rights or otherwise until the Warrant shall
have been exercised as provided herein.
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7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a register
(the "Warrant Register") containing the names and addresses of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to such
Holder as shown on the Warrant Register and at the address shown on the Warrant
Register. Until this Warrant is transferred on the Warrant Register of the
Company, the Company may treat the Holder as shown on the Warrant Register as
the absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
(b) Warrant Agent. The Company may, by written notice to
the Holder, appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 7(a) above, issuing the Common Stock or other securities
then issuable upon the exercise of this Warrant, exchanging this Warrant,
replacing this Warrant, or any or all of the foregoing, Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Non-negotiability of Warrant.
Neither this Warrant, nor any shares of Common Stock issuable upon exercise of
this Warrant, shall be transferable prior to February 25, 1997. This Warrant may
not be transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee. Subject to compliance with such laws, title to this Warrant may be
transferred by endorsement (by the Holder executing the Assignment Form annexed
hereto) and delivery in the same manner as a negotiable instrument transferable
by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender of
this Warrant for exchange, properly endorsed on the Assignment Form and subject
to the provisions of this Warrant with respect to compliance with applicable
securities laws and with the limitations on assignments and transfers and
contained in this Section 7, the Company at its expense shall issue to or on the
order of the Holder a new warrant or warrants of like tenor, in the name of the
Holder or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable upon exercise hereof
(e) Compliance with Securities Laws. The Holder of this
Warrant, by acceptance hereof, agrees that the Holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Common Stock to be issued
upon exercise hereof except under circumstances that will not result in a
violation of the federal or any state securities laws.
8. Reservation of Stock. The Company covenants that during the
term this Warrant is exercisable, the Company will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for the
issuance of Common Stock upon the exercise of this Warrant and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation to
provide sufficient reserves of shares of Common Stock issuable upon exercise of
the Warrant. The Company further covenants that all shares that may be issued
upon the exercise
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of rights represented by this Warrant, upon exercise of the rights represented
by this Warrant and payment of the Exercise Price, all as set forth herein, will
be free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein). The Company agrees that its issuance of this Warrant shall
constitute full authority to its 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.
9. Notices.
(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the
Company shall issue a certificate signed by its Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount of
the adjustment, the method by which such adjustment was calculated, and the
Exercise Price and number of shares purchasable hereunder after giving effect to
such adjustment, and shall cause a copy of such certificate to be mailed to the
Holder of this Warrant.
(b) In case:
(i) 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
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance
of all or substantially all of the assets of the Company to another
corporation, or
(iii) of any voluntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up 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 at the time 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 mailed at least 15
days prior to the date therein specified.
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(c) All such notices, advises and communications shall be
given in accordance with Section 12(c) hereof.
10. Amendments.
(a) Any term of this Warrant may be amended with the
written consent of the Company and the holders of warrants representing not less
than a majority of the shares of Common Stock issuable upon exercise hereof,
even without the consent of the Holder. Any amendment effected in accordance
with this Section 10 shall be binding upon each future Holder and on the
Company; provided, however, that no special consideration or inducement may be
given to any Holder in connection with such consent that is not given ratably to
all Holders, and that such amendment must apply to all Holders equally and
ratably in accordance with the number of shares of Common Stock issuable to such
Holders upon exercise of this Warrant. The Company shall promptly give notice to
all Holders of any amendment effected in accordance with this Section 10.
(b) No waivers of, or exceptions to, any term, condition
or provision of this Warrant, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
11. Adjustments. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
(a) Merger, Sale of Assets, etc. If at any time while
this Warrant, or any portion thereof, is outstanding and unexpired there shall
be (i) a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, 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 Exercise 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 Section 11. The foregoing provisions of this paragraph (a) 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
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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.
(b) Reclassification, etc. If the Company, at any time
while this Warrant, or any portion thereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change its Common Stock 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 Common Stock immediately prior to such reclassification or other change
and the Exercise Price therefor shall be appropriately adjusted, all subject to
further adjustment as provided in this Section 11.
(c) Split, Subdivision or Combination of Shares. If the
Company, at any time while this Warrant, or any portion thereof, remains
outstanding and unexpired shall split, subdivide or combine its Common Stock,
into a different number of shares, the number of shares of Common Stock subject
to this Warrant shall be proportionately adjusted. Such adjustment shall be made
without change in the aggregate Exercise Price applicable to this Warrant, but
with an appropriate adjustment in the Exercise Price per share.
(d) Adjustments for Dividends in Stock or Other
Securities or Property. If while this Warrant, or any portion hereof, remains
outstanding and unexpired the holders of Common Stock shall have received, or,
on or after the record date fixed for the determination of eligible
stockholders, shall have become entitled to receive, without payment therefor,
other or additional stock or other securities or property (other than cash) of
the Company by way of dividend, then and in each case, this Warrant shall
represent the right to acquire, in addition to the number of shares of Common
Stock, and without payment of any additional consideration therefor, the amount
of such other or additional stock or other securities or property (other than
cash) of the Company that such holder would hold on the date of such exercise
had it been a holder of record of Common Stock on the date her,,: 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 available
by it as aforesaid during such period, giving effect to all adjustments called
for during such period by the provisions of this Section 11.
(e) Certificate as to Adjustments. Upon the occurrence
of each adjustment or readjustment pursuant to this Section 11, the Company at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
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(f) No Impairment. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 11 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders of this Warrant
against impairment.
12. Miscellaneous.
(a) Governing Law. This Warrant shall be governed in all
respects by the laws of the State of Delaware, as if entered into by and between
Delaware residents exclusively for performance entirely within Delaware.
(b) Successors and Assigns. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the successors and permitted assigns of the Company and
the Holder. Nothing in this Warrant is intended to confer upon any party other
than the Company and the Holder or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Warrant, except as expressly provided in this Warrant.
(c) Notices. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given (i) upon personal
delivery to the party notified, (ii) three days after deposit with the United
States Post Office, by registered or certified mail, postage prepaid, return
receipt requested, (iii) one day after deposit with a nationally recognized air
courier service such as DHL or Federal Express for next day delivery, or (iv) on
the day of facsimile transmission, with confirmed transmission, to the facsimile
number shown below (or to such other facsimile number as the party to be
notified may indicate by ten (10) days' advance written notice to the other
party in the manner herein provided), provided that notice is also given under
clauses (i), (ii) or (iii) above; in any such case addressed to the party to be
notified at the address indicated below for that party, or at Such other address
as that party may indicate by ten (10) days' advance written notice to the other
party in the manner herein provided.
If to Investor: Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052-8119
Facsimile:(408) 765-7636
If to the Company: MRV Communications, Inc.
8943 Fullbright Avenue
Chatsworth, CA 91311
Facsimile:(818) 407-5656
(d) Entire Agreement. This Warrant constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements or understandings, written or
oral, between the parties with respect thereto.
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(e) Attorneys' Fees. In the event that any dispute between
the Company and the Holder should result in litigation, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Warrant, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
(f) Section Headings. Section captions are inserted for
convenience only and are not to be construed to define, limit or affect the
construction or interpretation hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated November 26, 1996.
MRV COMMUNICATIONS, INC.
By: /s/ NOAM LOTAN
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Title: President & CEO
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NOTICE OF EXERCISE
To: MRV COMMUNICATIONS, INC.
The undersigned hereby irrevocably elects to exercise the right,
represented by the attached Warrant, to purchase ___________ shares of Common
Stock issuable upon exercise thereof, and (check one):
[ ] herewith tenders payment for _____________ of such shares to
the order of MRV Communications, Inc., in the amount of $ _______
in accordance with the terms of the attached Warrant; or
[ ] herewith tenders the attached Warrant as payment for such shares
pursuant to the provisions of Section 3(b) thereof.
The undersigned requests that a certificate (or certificates) for such shares be
registered in the name of the undersigned and that such certificate (or
certificates) be delivered to the undersigned's address below.
In exercising the attached Warrant, the undersigned hereby confirms and
acknowledges that such shares are being acquired solely for the account of the
undersigned and not as a nominee for any other party, or for investment, and
that the undersigned will not offer, sell or otherwise dispose of any such
shares except under circumstances that will not result in a violation of the
Securities Act of 1933, as amended, or any state securities laws.
Dated:
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Signature
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(Print Name)
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(Street Address)
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(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable under the
attached Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder.
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Number of
Name of Assignee Address Shares
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and does hereby irrevocably constitute and appoint as Attorney _________________
to make such transfer on the books of MRV COMMUNICATIONS, INC., maintained for
the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will not
offer, sell or otherwise dispose of this Warrant or such shares except under
circumstances which will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws. Further, the Assignee has
acknowledged that upon exercise of this Warrant, the Assignee shall, if
requested by the Company confirm in writing, In a form satisfactory to the
Company, that the shares of stock so purchased are being acquired for investment
and not with a view toward distribution or resale.
Dated:
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Signature of Holder
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