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EXHIBIT 4.8
EXHIBIT A
THE SECURITIES EVIDENCED BY THIS WARRANT OR ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE
ENCUMBERED OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Warrant No. 3 April 4, 1996
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Lunenburg S.A., a Panama
corporation and permitted assigns, is entitled to purchase from JT Storage,
Inc., a Delaware corporation (the "Company"), up to Seven Hundred Fifty
Thousand (750,000) shares of the Company's Common Stock, par value $.000001 per
share (the "Common Stock"), during the period, and at the price and upon the
other terms and conditions, hereinafter set forth.
1. EXERCISABILITY OF WARRANT; PURCHASE PRICE. This Warrant has
been issued in connection with the acquisition by the Company of an indirect
ownership interest in 90% of the outstanding capital stock of Moduler
Electronics (India) Pvt. Ltd., a corporation organized and existing under the
laws of India ("Moduler"). This Warrant shall, upon issuance, be exercisable
only as to Five Hundred Thousand (500,000) shares of Common Stock. This
Warrant shall become exercisable as to an additional Two Hundred Fifty Thousand
(250,000) shares of Common Stock only when, and only if such occurs by
September 30, 1996, there becomes available to Moduler, on commercially
reasonable and customary terms and conditions, borrowing and credit facilities
from banks and/or other institutional lenders within India in the aggregate
amount of U.S.$29,000,000, which borrowings are available unconditionally to
Moduler subject only to formal request by Moduler and customary procedural
draw-down conditions, but without further requirements with respect to either
the creditworthiness of Moduler or the value or amount of collateral (except
such as Moduler is in fact able to provide) available to the lenders (it being
acknowledged and agreed that, although the Company shall use commercially
reasonable efforts to assist Moduler in implementing such credit facilities, it
shall be incumbent upon the holder of this Warrant to take such actions, or
provide or cause to be provided to such lenders such assurances, guarantees or
collateral, as such lenders may require to implement such credit facilities and
thus cause this Warrant to become exercisable as to such additional 250,000
shares). Subject to the immediately preceding sentence (with respect to the
contingency applicable to 250,000 shares covered by this Warrant), this Warrant
may be
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exercised until the close of business on April 4, 2001. The exercise price to
be paid upon exercise of this Warrant shall be U.S.$0.25 per share of Common
Stock.
2. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT; TRANSFER
AND EXCHANGE. This Warrant may be exercised by the holder hereof, in whole or
in part, by the surrender of this Warrant, properly endorsed, at the principal
office of the Company and by (a) the payment to the Company of the then
applicable Warrant Price of the Common Stock being purchased ("Warrant Price"
shall mean the price specified in the first paragraph of this Warrant and such
other prices as shall result from the adjustments specified in Section 5
hereof), and (b) delivery to the Company of a customary investment letter
executed by the holder, confirming that the shares of Common Stock being
purchased are being acquired for the holder's own account and acknowledging
securities law restrictions applicable to such shares, and agreeing that
certificates evidencing such shares shall bear a legend accordingly restricting
the transfer of such shares. In addition, if this Warrant is exercised
concurrent with the closing of an initial public offering ("IPO"), the holder,
in lieu of exercising this Warrant by the payment of the Warrant Price pursuant
to the preceding sentence of this Section 2, may elect to receive that number
of shares of Common Stock equal to the quotient obtained by dividing (A) the
difference between (i) the IPO Price (as hereinafter defined) of the Common
Stock, less (ii) the Warrant Price then in effect, multiplied by the number of
shares of Common Stock the holder would otherwise have been entitled to
purchase hereunder (or such lesser number of shares as the holder may designate
in the case of a partial exercise of this Warrant), by (B) the IPO Price. In
the event of any exercise of the rights represented by this Warrant,
certificates for the shares of Common Stock so purchased shall be delivered to
the holder hereof within a reasonable time after the rights represented by this
Warrant shall have been so exercised, and unless this Warrant has expired, a
new Warrant representing the number of shares of Common Stock, if any, with
respect to which this Warrant shall not then have been exercised, shall also be
issued to the holder hereof within such time. Notwithstanding the foregoing,
in the event that escrow instructions are pending pursuant to that certain
Escrow Agreement, of even date herewith, between Lunenburg S.A. and the Company
(the "Escrow Agreement"), then the shares of Common Stock issued upon exercise
of this Warrant shall be delivered to the party specified in the Escrow
Agreement in accordance with the terms thereof.
For purposes of this Section 2, "IPO Price" means the gross
sales price of one share of the Company's Common Stock to the public in the
IPO.
3. STOCK FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that all shares which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all liens. The Company
further covenants and agrees that, at all times during the period within which
the rights represented by this Warrant may be exercised, it will reserve for
the purpose of issuance upon exercise of the purchase rights evidenced by this
Warrant, at least the maximum number of shares of Common Stock as are issuable
at such time upon the exercise of the rights represented by this Warrant.
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4. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT.
(a) RESTRICTIONS ON TRANSFERABILITY. This Warrant and
the shares of Common Stock issuable hereunder shall not be transferable except
upon the conditions specified in this Section, which conditions are intended to
insure compliance with the provisions of the Securities Act of 1933, as amended
(the "Securities Act"). Each holder of this Warrant or the Common Stock
issuable hereunder will cause any proposed transferee of the Warrant or such
Common Stock to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Section.
(b) RESTRICTIVE LEGEND. Each certificate representing
(i) this Warrant, (ii) the shares of Common Stock issued upon exercise of the
Warrant and (iii) any other securities issued in respect of such shares of
Common Stock upon any stock split, stock dividend or similar event
(collectively, the "Restricted Securities"), shall (unless otherwise permitted
by the provisions of Section 4(c) below or unless such securities have been
registered under the Securities Act) be imprinted with the following legend, in
addition to any legend required under applicable state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend therefrom or issue to such holder a new certificate
therefor free of any transfer legend, if, with such request, the Company shall
have received either the opinion referred to in Section 4(c)(i) or the
"no-action" letter referred to in Section 4(c)(ii) to the effect that any
transfer by such holder of the securities evidenced by such certificate will be
exempt from the registration and/or qualification requirements of, and that
such legend is not required in order to establish compliance with the
Securities Act, and if applicable, any state securities laws under which
transfer restrictions on such securities had been previously imposed.
(c) NOTICE OF PROPOSED TRANSFERS. The holder of each
certificate representing Restricted Securities by acceptance thereof agrees to
comply in all respects with the provisions of this Section 4(c). Prior to any
proposed transfer of any Restricted Securities occurring prior to such time as
the Company's Common Stock becomes listed on a national securities exchange or
quoted in the National Association of Securities Dealers' Automated Quotation
System, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer. Each such notice shall describe
the manner and circumstances of the proposed transfer in sufficient detail,
and, except for transfers to any trustee appointed in a pending bankruptcy
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case or any distributing agent or trustee appointed pursuant to a plan of
reorganization in any bankruptcy case, shall be accompanied by either (i) an
unqualified written legal opinion addressed to the Company from counsel who
shall be reasonably satisfactory to the Company, which opinion shall be
reasonably satisfactory in form and substance to the Company's legal counsel,
to the effect that the proposed transfer of the Restricted Securities may be
effected without registration under the Securities Act and any applicable state
securities laws, or (ii) a "no-action" letter from the Securities and Exchange
Commission (and any necessary state securities administrator) to the effect
that the distribution of such securities without registration will not result
in a recommendation by the staff of the Commission (or such administrators)
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the appropriate restrictive legend set forth in
Section 4(b) above.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES OF COMMON
STOCK. The number and kind of securities purchasable upon the exercise of this
Warrant and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
(a) CONSOLIDATION, MERGER, REORGANIZATION, ETC. If the
Company at any time while this Warrant remains outstanding and unexpired shall
consolidate with or merge into any other corporation, reorganize, or
reclassify, or in any manner change the securities then purchasable upon the
exercise of this Warrant, then upon consummation thereof this Warrant shall
thereafter represent the right of the holder to receive, to the extent this
Warrant is exercisable as provided above in Section 1, in lieu of shares of
Common Stock, the cash or securities to which such holder would have been
entitled upon consummation thereof if such holder had exercised this Warrant
immediately prior thereto. The Company agrees that the rights set forth herein
shall be preserved in any such merger or consolidation. Upon any such event,
an appropriate adjustment shall be made to the Warrant Price, if necessary in
the good faith judgment of the Board of Directors of the Company, to preserve
the economic benefit intended to be conferred upon the holder of this Warrant
hereunder in accordance with its terms.
(b) SUBDIVISION OR COMBINATION OF SHARES; DIVIDENDS AND
DISTRIBUTION OF COMMON STOCK. If the Company at any time shall subdivide or
combine its Common Stock, or take a record of the holders of its Common Stock
for the purpose of entitling them to receive without payment a dividend payable
in, or other distribution of, Common Stock or other securities, then the number
of shares of Common Stock purchasable hereunder shall be adjusted to that
number determined by multiplying the number of shares purchasable upon the
exercise of this Warrant immediately prior to such adjustment by a fraction (i)
the numerator of which shall
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be the total number of shares of Common Stock outstanding immediately after
such subdivision, combination, dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such subdivision, combination, dividend or
distribution. Additionally, the Warrant Price shall be adjusted to that price
determined by multiplying the Warrant Price in effect immediately prior to such
subdivision, combination, dividend or distribution by a fraction (x) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such subdivision, combination, dividend or
distribution, and (y) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such subdivision,
combination, dividend or distribution.
6. FRACTIONAL SHARES. No fractional shares of Common Stock will
be issued in connection with any exercise hereunder but in lieu of such
fractional shares, the Company shall make a cash payment therefor upon the
basis of the fair market value of the Common Stock.
7. GOVERNING LAW. 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.
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IN WITNESS WHEREOF, this Warrant has been executed and issued by the
officer or officers thereunto duly authorized as of the day and year first
written above.
JT STORAGE, INC.
By:_____________________________________
David T. Mitchell, President and
Chief Executive Officer
ACCEPTED AND AGREED TO:
LUNENBURG S.A.
By:________________________________________
Its:_______________________________________
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FORM OF EXERCISE
(To be signed only upon exercise of Warrant)
To JT Storage, Inc.:
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, _____________________ (______) of the number of shares of
Common Stock purchasable under this Warrant and herewith makes payment of
____________ _____________ Dollars ($_________) therefor, and requests that a
certificate(s) for such shares be issued in the name of, and delivered to, ____
________________________________, whose address is_____________________________
______________________________.
The undersigned represents that he is acquiring such shares of Common
Stock for its own account for investment purposes only and not with a view to
or for sale in connection with any distribution thereof.
Dated:____________________________ _______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
_______________________________________
_______________________________________
(Address)
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