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EXHIBIT 4.6
WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
JT STORAGE, INC.
(Void after March 2, 2002)
This certifies that VENTURE LENDING & LEASING, INC., a Maryland
corporation, or assigns (the "Holder"), for value received, is entitled to
purchase from JT STORAGE, INC., Delaware corporation (the "Company"), Four
Hundred Fifty Thousand (450,000) fully paid and nonassessable shares of the
Company's Common Stock ("Common Stock") for cash at a price of One Dollar
($1.00) per share (the "Stock Purchase Price") at any time or from time to time
up to and including 5:00 p.m. (Pacific time) on March 2, 2002 (the "Expiration
Date"), upon surrender to the company at its principal office at 1289 Anvilwood
Avenue, Sunnyvale, California 94089 (or at such other location as the Company
may advise Holder in writing) of this Warrant properly endorsed with the Form
of Subscription attached hereto duly filled in and signed and upon payment in
cash or by check of the aggregate Stock Purchase Price for the number of shares
for which this Warrant is being exercised determined in accordance with the
provisions hereof. The Stock Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Section 4 of
this Warrant.
This Warrant is subject to the following terms and conditions:
1. Exercise; Issuance of Certificates; Payment for Shares.
(a) Unless an election is made pursuant to clause (b) of this
Section 1, this Warrant shall be exercisable at the option of the Holder, at
any time or from time to time, on or before the Expiration Date for all or any
portion of the shares of Common Stock (but not for a fraction of a share) which
may be purchased hereunder for the Stock Purchase Price multiplied by the
number of shares to be purchased. The Company agrees that the shares of Common
Stock purchased under this Warrant shall be and are deemed to be issued to the
holder hereof as the record owner of such shares as of the close of business on
the date on which this Warrant shall have been surrendered and payment made for
such shares. Subject to the provisions of Section 2, certificates for the
shares of Common Stock so purchased, together with any other securities or
property to which the Holder hereof is entitled upon such exercise, shall be
delivered to the Holder hereof by the Company at the Company's expense within a
reasonable time after the rights represented by this
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warrant have been so exercised. Except as provided in clause (b) of this
Section 1, in case of a purchase of less than all the shares which may be
purchased under this Warrant, the Company shall cancel this Warrant and execute
and deliver a new Warrant or Warrants of like tenor for the balance of the
shares purchasable under the Warrant surrendered upon such purchase to the
Holder hereof within a reasonable time. Each stock certificate so delivered
shall be in such denominations of Common Stock as may be requested by the
Holder hereof and shall be registered in the name of such Holder or such other
name as shall be designated by such Holder, subject to the limitations
contained in Section 2.
(b) The Holder, in lieu of exercising this Warrant by the payment
of the Stock Purchase Price pursuant to clause (a) of this Section 1, may
elect, at any time on or before the Expiration Date, to receive, through
conversion of this Warrant or any portion hereof into that number of shares of
Common Stock equal to the quotient of: (i) the difference between (A) the Per
Share Price (as hereinafter defined) of the Common Stock, less (B) the Stock
Purchase Price then in effect, multiplied by the number of shares of Common
Stock the Holder would otherwise have been entitled to purchase hereunder
pursuant to clause (a) of this Section 1 (or such lesser number of shares as
the Holder may designate in the case of a partial exercise of this Warrant);
over (ii) the Per Share Price.
(c) For purposes of clause (b) of this Section 1, "Per Share
Price" means: (i) if the Company's Common Stock is then listed or admitted to
trading on any national securities exchange or traded on any national market
system, the average of the closing bid and asked prices of the Company's Common
Stock as reported on such exchange or market system for the ten (10)
consecutive trading days prior to the date of the Holder's election to convert
hereunder; (ii) if this Warrant is being converted in conjunction with a public
offering of stock, the price to the public per share pursuant to the offering;
or (iii) if no shares of the Company's Common Stock are listed or admitted to
trading on any national securities exchange or traded on any national market
system, the price per share which the Company would obtain from a willing buyer
for shares sold by the Company from authorized but unissued shares as such
price shall be agreed upon by the Holder and the Company or, if agreement
cannot be reached within ten (10) business days of the Holder's election
hereunder, as such price shall be determined by a panel of three (3)
appraisers, one (1) to be chosen by the Company, one (1) to be chosen by the
Holder and the third to be chosen by the first two (2) appraisers. If the
appraisers cannot reach agreement within 30 days of the Holder's election
hereunder, then each appraiser shall deliver its appraisal and the appraisal
which is neither the highest nor the lowest shall constitute the Per Share
Price. In the event either party fails to choose an appraiser
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within 30 days of the Holder's election hereunder, then the appraisal of the
sole appraiser shall constitute the Per Share Price. Each party shall bear the
cost of the appraiser selected by such party and the cost of the third
appraiser shall be borne one-half by each party. In the event either party
fails to choose an appraiser, the cost of the sole appraiser shall be borne
one-half by each party.
2. Limitation on Transfer.
(a) The Warrant and the Common Stock shall not be transferable
except upon the conditions specified in this Section 2, which conditions are
intended to insure compliance with the provisions of the Securities Act. Each
holder of this Warrant or the Common Stock issuable hereunder will cause any
proposed transferee of the Warrant or Common Stock to agree to take and hold
such securities subject to the provisions and upon the conditions specified in
this Section 2.
(b) Each certificate representing this Warrant or the Common Stock
shall (unless otherwise permitted by the provisions of this Section 2 or unless
such securities have been registered under the Securities Act or sold under
Rule 144) be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under applicable state
securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(c) The Holder of this Warrant and each person to whom this
Warrant is subsequently transferred represents and warrants to the Company (by
acceptance of such transfer) that it will not transfer the Warrant (or
securities issuable upon exercise hereof unless a registration statement under
the Securities Act was in effect with respect to such securities at the time of
issuance thereof) except pursuant to (i) an effective registration statement
under the Securities Act, (ii) Rule 144 under the Securities Act (or any
similar rule under the Securities Act relating to the disposition of
securities), or (iii) an opinion of counsel, reasonably satisfactory to counsel
for the Company, that an exemption from such registration is available.
3. Shares to be Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares of Common Stock which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
duly authorized, validly
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issued, fully paid and nonassessable and free from all preemptive rights of any
shareholder and free of all taxes, liens and charges with respect to the issue
thereof. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved, for the purpose of
issue or transfer upon exercise of the subscription rights evidenced by this
Warrant, a sufficient number of shares of authorized but unissued Common Stock,
or other securities and property, when and as required to provide for the
exercise of the rights represented by this Warrant. The Company will take all
such action as may be necessary to assure that such shares of Common Stock may
be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any domestic securities exchange upon
which the Common Stock may be listed. The company will not take any action
which would result in any adjustment of the Stock Purchase Price (as defined in
Section 4 hereof) (i) if the total number of shares of Common Stock issuable
after such action upon exercise of all outstanding warrants, together with all
shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and upon the conversion of all
convertible securities then outstanding, would exceed the total number of
shares of Common Stock then authorized by the Company's Articles of
Incorporation.
4. Adjustment of Stock Purchase Price Number of Shares. The
Stock Purchase Price and the number of shares purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events described in this Section 4. Upon each adjustment
of the Stock Purchase Price, the Holder of this Warrant shall thereafter be
entitled to purchase, at the Stock Purchase Price resulting from such
adjustment, the number of shares obtained by multiplying the Stock Purchase
Price in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment, and dividing
the product thereof by the Stock Purchase Price resulting from such adjustment.
4.1 Subdivision or Combination of Stock. In case the
Company shall at any time subdivide its outstanding shares of Common Stock into
a greater number of shares, the Stock Purchase Price in effect immediately
prior to such subdivision shall be proportionately reduced, and conversely, in
case the outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Stock Purchase Price in effect immediately
prior to such combination shall be proportionately increased.
4.2 Dividends in Preferred Stock, Other Stock, Property,
Reclassification. If at any time or from time to time
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the holders of Common Stock (or any shares of stock or other securities at the
time receivable upon the exercise of this Warrant) shall have received or
become entitled to receive, without payment therefor,
(a) by way of dividend or other distribution, any
shares of stock or other securities, whether or not such securities are at any
time directly or indirectly convertible into or exchangeable for Common Stock,
or any rights or options to subscribe for, purchase or otherwise acquire any of
the foregoing, or
(b) any cash paid or payable otherwise than as a
cash dividend, or
(c) additional stock or other securities or
property (including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement, (other than shares of
Common Stock issued as a stock split, adjustments in respect of which shall be
covered by the terms of Section 4.1 above),
then and in each such case, the Holder hereof shall, upon the exercise of this
Warrant, be entitled to receive, in addition to the number of shares of Common
Stock receivable thereupon, and without payment of any additional consideration
therefore, the amount of stock and other securities and property (including
cash in the cases referred to in clauses (b) and (c) above) which such Holder
would hold on the date of such exercise had he been the holder of record of
such Common Stock as of the date on which holders of Common Stock received or
became entitled to receive such shares and/or all other additional stock and
other securities and property.
4.3 Reorganization, Reclassification, Consolidation,
Merger or Sale. In the event of an anticipated Acquisition or Dissolution (as
such terms are defined below), the Company shall provide the holder of this
Warrant with at least thirty (30) days' prior notice of such anticipated event
and this Warrant shall be exercisable for such 30-day period ending upon such
Acquisition or Dissolution, and shall, upon the expiration of such 30-day
period, terminate if not exercised; provided, however, that if such Acquisition
or Dissolution does not in fact occur, any purported exercise of this Warrant
prior thereto shall be deemed automatically void and this Warrant shall remain
in effect, unexercised and otherwise unaffected by the anticipation of such
event. For purposes of this Section 4.3, (a) an "Acquisition" means the sale
or transfer of all or substantially all of the Company's assets or the
acquisition of the Company by another entity, including any merger or
consolidation with or into any other corporation and any other transaction or
series of related transactions resulting in the exchange of the outstanding
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shares of the Company for securities or consideration issued or caused to be
issued by the acquiring entity as a result of which stockholders of the Company
immediately prior to the transaction or series of transactions own less than
fifty (50%) of the equity securities of the surviving corporation immediately
following the merger, consolidation, sale or transfer of assets or other
transaction or series of transactions and (b) a "Liquidation" means the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary.
If any capital reorganization of the capital stock of the Company, or
any consolidation or merger of the Company with another corporation, or other
reorganization, other than an Acquisition as defined above, shall be effected
in such a way that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as
a condition of such reorganization, reclassification, consolidation, merger or
sale, lawful and adequate provisions shall be made whereby the holder hereof
shall thereafter have the right to purchase and receive (in lieu of the shares
of the Common Stock of the Company immediately theretofore Purchasable and
receivable upon the exercise of the rights represented hereby) such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby. In any such
case, appropriate provision shall be made with respect to the rights and
interests of the holder of this Warrant to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Stock
Purchase Price and of the number of shares purchasable and receivable upon the
exercise of this Warrant) shall thereafter be applicable, as nearly as may be
possible, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise hereof.
4.4 Notice of Adjustment. Upon any adjustment of the
Stock Purchase Price, and/or any increase or decrease in the number of shares
purchasable upon the exercise of this Warrant the Company shall give written
notice thereof, by first class mail, postage prepaid, addressed to the
registered holder of this Warrant at the address of such holder as shown on the
books of the Company. The notice shall be signed by the Company's chief
financial officer and shall state the Stock Purchase Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
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4.5 Other Notices. If at any time:
(a) the Company shall declare any cash dividend
upon any of its stock;
(b) the Company shall declare any dividend upon
its stock payable in stock, or make any special dividend or other distribution
to the holders of its stock;
(c) the Company shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of stock of any
class or other rights;
(d) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or
merger of the Company with, or sale of all or substantially all of its assets
to, another corporation;
(e) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company; or
(f) the Company shall take or propose to take any
other action, notice of which is actually provided to holders of the Common
Stock;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the holder of this Warrant at the address
of such holder as shown on the books of the Company, (i) at least 5 business
day's prior written notice of the date on which the books of the Company shall
close or a record shall be taken for establishing the right to receive such
dividend, distribution or subscription rights and (ii) with respect to any
other action, notice of which is given to holders of the Common Stock, such
notice as is actually provided to such holders. The foregoing shall not apply
with respect to an Acquisition or Dissolution, notice of which shall be given
in accordance with Section 4.3 above. Any notice given in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of stock
shall be entitled thereto. Any notice given in accordance with the foregoing
clause (ii) shall, if applicable, also specify the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for securities or
other property deliverable upon any reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, or other
action as the case may be.
Notwithstanding the foregoing, with respect to any matter as to which
the consent of stockholders is solicited by the Company in lieu of a meeting in
accordance with Section 228 of the Delaware Corporation Law, the obligation of
the Company to
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provide notice to the holder of this Warrant shall be solely as follows:
(a) if the Company solicits the written consent of all
stockholders, notice thereof shall be given to the holder of this Warrant at
the same time that such written consent is solicited from all stockholders, and
(b) if the Company does not solicit such written consent
from all stockholders, then notice of the taking of the corporate action
without a meeting shall be given to the holder of this Warrant no later than it
is given to those stockholders who have not consented in writing.
5. Issue Tax. The issuance of certificates for shares of
Preferred Stock upon the exercise of the Warrant shall be made without charge
to the Holder of the Warrant for any issue tax in respect thereof; provided,
however, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the then Holder of the Warrant being
exercised.
6. Closing of Books. The Company will at no time close its
transfer books against the transfer of any Warrant or of any shares of Common
Stock issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
7. No voting or Dividend Rights; Limitation of Liability.
Nothing contained in this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent as a shareholder in respect of
meetings of shareholders for the election of directors of the Company or any
other matters or any rights whatsoever as a shareholder of the Company. No
dividends or interest shall be payable or accrued in respect of this Warrant or
the interest represented hereby or the shares purchasable hereunder until, and
only to the extent that, this Warrant shall have been exercised. No provisions
hereof, in the absence of affirmative action by the holder to purchase shares
of Common Stock, and no mere enumeration herein of the rights or privileges of
the Holder hereof, shall give rise to any liability of such Holder for the
Stock Purchase Price or as a shareholder of the Company, whether such liability
is asserted by the Company or by its creditors.
8. Registration Rights. The Company hereby grants to the holder
hereof a single "demand" registration right equivalent to the demand
registration rights of the "Purchasers" who are parties to that certain
Registration Rights Agreement dated as of February 3, 1995 among the Company
and the purchasers of its Series A Preferred Stock (the "Registration Rights
Agreement"),
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as provided in Section 2 thereof, such that the terms and conditions of the
Registration Rights Agreement are incorporated herein by reference (for
purposes of such single demand registration right) with the Holder of this
warrant being deemed the sole "Holder" or "Initiating Holder" (as used in the
Registration Rights Agreement) and with the shares of Common Stock issuable
upon exercise of this Warrant being deemed to constitute all of the
"Registrable Securities" (as used in the Registration Rights Agreement);
provided however, that (1) it is the intention of the Company to hereby grant
an independent demand registration right to the Holder of this Warrant pursuant
to the foregoing references to certain provisions of the Registration Rights
Agreement, and the Holder of this Warrant shall not be deemed a party to the
Registration Rights Agreement pursuant to this paragraph, (2) there shall be no
$5,000,000 minimum requirement or 15% minimum requirement with respect to the
amount of securities registered pursuant to such demand registration, and (3)
the Company shall not be required to effect more than one such registration at
the demand of the holder hereof, nor shall it be required to effect such
registration prior to six (6) months after the effective date of the Company's
first registered public offering of its stock. In all other respects the terms
and conditions of the Registration Rights Agreement applicable to the
registration of shares pursuant to Section 2 thereof shall also be applicable
to the Holder of this Warrant and the shares of Common Stock issued upon
exercise hereof included in any registration pursuant to this paragraph.
Notwithstanding the foregoing, the Company shall use its best efforts to cause
the Registration Rights Agreement to be amended to permit the Holder of this
Warrant to become a party thereto (and thus a "Holder" as defined therein) and
to cause the shares of Common Stock issuable upon exercise of this Warrant to
be included in the definition of "Registrable Securities" therein for the
purpose of providing that the Holder of this Warrant shall have the piggyback
registration rights afforded to "Holders" upon Section 3 of the Registration
Rights Agreement on a parity with all other "Holders" as defined therein (as
opposed to "Other Holders" as defined therein) and, effective upon such
amendment of the Registration Rights Agreement, the Company and the Holder of
this Warrant agree that the foregoing provisions of this Section 8 shall be
deemed automatically terminated and superseded by the Registration Rights
Agreement.
9. Rights and Obligations Survive Exercise of Warrant. The
rights and obligations of the Company, of the Holder of this Warrant and of the
holder of shares of Common Stock issued upon exercise of this Warrant,
contained in Sections 6, 8 and 9 shall survive the exercise of this Warrant.
10. Modification and Waiver. This Warrant and any provision
hereof may be changed, waived, discharged or terminated
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only by an instrument in writing signed by the party against which enforcement
of the same is sought.
11. Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
deemed to have been given (i) upon receipt if delivered personally or by
courier, (ii) upon confirmation of receipt if by telecopy, or (iii) three
business days after deposit in the U.S. mail, with postage prepaid and
certified or registered, to each such holder at its address as shown on the
books of the Company or to the Company at the address indicated therefor in the
first paragraph of this Warrant.
12. Binding Effect on Successors. This Warrant shall be binding
upon any corporation succeeding the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets. All of the
obligations of the Company relating to the Common Stock issuable upon the
exercise of this Warrant shall survive the exercise and termination of this
Warrant. All of the covenants and agreements of the Company shall inure to the
benefit of the successors and assign of the holder hereof. The Company will,
at the time of the exercise of this Warrant, in whole or in part, upon request
of the Holder hereof but at the Company's expense, acknowledge in writing its
continuing obligation to the Holder hereof in respect of any rights (including,
without limitation, any right to registration of the shares of Common Stock) to
which the holder hereof shall continue to be entitled after such exercise in
accordance with this Warrant; provided, that the failure of the holder hereof
to make any such request shall not affect the continuing obligation of the
Company to the Holder hereof in respect of such rights.
13. Descriptive Headings and Governing Law. The descriptive
headings of the several sections and paragraphs of this Warrant are inserted
for convenience only and do not constitute a part of this Warrant. This
Warrant shall be construed and enforced in accordance with, and the rights of
the parties shall be governed by, the laws of the State of California.
14. Lost Warrants or Stock Certificates. The Company represents
and warrants to the Holder hereof that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant or stock certificate and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company at its expense will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
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15. Fractional Shares. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to such
fraction multiplied by the then effective Stock Purchase Price.
17. Representations of Holder. With respect to this Warrant,
Holder represents and warrants to the Company as follows:
17.1 Experience. It is experienced in evaluating and
investing in companies engaged in businesses similar to that of the Company; it
understands that investment in the Warrant involves substantial risks; it has
made detailed inquiries concerning the Company, its business and services, its
officers and its personnel; the officers of the Company have made available to
Holder any and all written information it has requested; the officers of the
Company have answered to Holder's satisfaction all inquiries made by it; in
making this investment it has relied upon information made available to it by
the Company; and it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of investment in
the Company and it is able to bear the economic risk of that investment.
17.2 Investment. It is acquiring the Warrant for
investment for its own account and not with a view to, or for resale in
connection with, any distribution thereof. It understands that the Warrant,
the shares of Common Stock issuable upon exercise thereof, have not been
registered under the Securities Act of 1933, as amended, nor qualified under
applicable state securities Laws.
17.3 Rule 144. It acknowledges that the Warrant and the
Common Stock must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
It has been advised or is aware of the provisions of Rule 144 promulgated under
the Securities Act.
17.4 Access to Data. It has had an opportunity to discuss
the Company's business, management and financial affairs with the Company's
management and has had the opportunity to inspect the company's facilities.
18. Additional Representations and Covenants of the Company. The
Company hereby represents, warrants and agrees as follows:
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18.1 Corporate Power. The Company has all requisite
corporate power and corporate authority to issue this Warrant and to carry out
and perform its obligations hereunder.
18.2 Authorization. All corporate action on the part of
the Company, its directors and shareholders necessary for the authorization,
execution, delivery and performance by the Company of this has been taken.
This Warrant is a valid and binding obligation of the Company, enforceable in
accordance with its terms.
18.3 Offering. Subject in part to the truth and accuracy
of Holder's representations set forth in Section 17 hereof, the offer, issuance
and sale of the Warrant is, and the issuance of Common Stock upon exercise of
the Warrant will be exempt from the registration requirements of the Securities
Act, and are exempt from the qualification requirements of any applicable state
securities laws; and neither the Company nor anyone acting on its behalf will
take any action hereafter that would cause the loss of such exemptions.
18.4 Stock Issuance. Upon exercise of the Warrant, the
Company will use its best efforts to cause stock certificates representing the
shares of Common Stock purchased pursuant to the exercise to be issued in the
individual names of Holder, its nominees or assignees, as appropriate at the
time of such exercise.
18.5 Articles and By-Laws. The Company has provided
Holder with true and complete copies of the Company's Articles or Certificate
of Incorporation, By-Laws, and each Certificate of Determination or other
charter document setting, forth any rights, preferences and privileges of
Company's capital stock, each as amended and in effect on the date of issuance
of this Warrant.
18.6 Financial and Other Reports. From time to time up to
the earlier of the Expiration Date or the complete exercise of this Warrant,
the Company shall furnish to Holder (i) within 90 days after the close of each
fiscal year of the Company an audited balance sheet and statement of changes in
financial position at and as of the end of such fiscal year, together with an
audited statement of income for such fiscal year; (ii) within 45 days after the
close of each fiscal quarter of the Company, an unaudited balance sheet and
statement of cash flows at and as of the end of such quarter, together with an
unaudited statement of income for such quarter; and (iii) promptly after
sending, copies of all reports, proxy statements,and financial statements that
the Company sends to its shareholders.
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IN WITNESS WHEREOF, the company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized this 24th of March, 1995.
JT STORAGE, INC.
By: David B. Pearce
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DAVID B. PEARCE
President
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: _____________________
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _____________________ (__________) (1) shares of Common
Stock of __________________________ and herewith makes payment of
__________________ Dollars ($___________) therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to,
________________________ whose address is ________________________________.
The undersigned represents that it is acquiring such Common Stock for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof (subject, however, to any requirement of law that
the disposition thereof shall at all times be within its control.
DATED: _______________________
_________________________________________
(Signature must conform in all respects
to name of holder as specified on the face
of the Warrant)
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(Address)
- ----------------
(1) Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to
which the Warrant is being exercised), in either case without making
any adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant, may be deliverable upon exercise.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, the holder of the within Warrant,
hereby sells, assigns and transfers all of the rights of the undersigned under
the within Warrant, with respect to the number of shares of Common Stock
covered thereby set forth hereinbelow, unto:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
Dated: ______________________
_________________________________________
(Signature must conform in all respects
to name of holder as specified on the face
of the Warrant)
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