EXHIBIT 4.38
APPIANT TECHNOLOGIES, INC.
WARRANT NO. 2001-
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Issued as of the 31st day of May, 2001 (1) Aggregate Price: $
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(2) Initial Warrant Price: $1.57
(3) Number of Shares Initially
Subject to Warrant:
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NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("1933
SECURITIES ACT"), OR QUALIFIED OR REGISTERED UNDER CALIFORNIA OR OTHER
APPLICABLE SECURITIES LAWS ("STATE SECURITIES LAWS"), AND THIS WARRANT HAS BEEN,
AND THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF WILL BE, ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER DISPOSITION MAY BE MADE WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 SECURITIES ACT AND COMPLIANCE
WITH THE APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE ISSUER AND ITS COUNSEL, THAT SAID REGISTRATION IS NOT
REQUIRED UNDER THE 1933 SECURITIES ACT AND THAT APPLICABLE STATE SECURITIES LAWS
HAVE BEEN SATISFIED.
COMMON STOCK WARRANT
This certifies that , ("PURCHASER"), whose address for notice
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is located at or any party to whom this
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Warrant is assigned in compliance with the terms hereof (Purchaser and any such
assignee being hereinafter sometimes referenced as "HOLDER"), is entitled to
subscribe for and purchase, in whole or in part, during the period commencing at
the issue date set forth above and ending at 5:00 p.m., California, local time,
on the fifth (5th) anniversary of such issue date, the number of shares of fully
paid and non-assessable Common Stock ("COMMON STOCK") APPIANT TECHNOLOGIES, INC,
A DELAWARE CORPORATION (the "COMPANY"), that have an aggregate purchase price
equal to the Aggregate Price as defined below. The purchase price of each such
share shall be equal to the Warrant Price, as defined below.
ARTICLE 1
DEFINITIONS
1.1 "AGGREGATE PRICE" shall be $ -.
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1.2 "WARRANT PRICE" shall be $1.57 as adjusted herein.
ARTICLE 2
EXERCISE AND PAYMENT
2.1 CASH EXERCISE. The purchase rights represented by this Warrant may
be exercised by Holder, in whole or in part, by the surrender of this Warrant at
the principal office of the Company, located at the address set forth on the
signature page hereof, accompanied by the form of Notice of Cash Exercise
attached hereto as Exhibit "B-1", and by the payment to the Company, by cash or
by certified, cashier's or other check acceptable to the Company, of an amount
equal to the aggregate Warrant Price of the shares being purchased.
2.2 NET ISSUE EXERCISE. In lieu of exercising this Warrant pursuant to
Section 2.1, Holder may elect to receive shares of Common Stock equal to the
value of this Warrant determined in the manner described below (or of any
portion thereof remaining unexercised) by surrender of this Warrant at the
principal office of the Company together with the form of Notice of Cashless
Exercise attached hereto as Exhibit "B-2", in which event the Company shall
issue to Holder a number of shares of the Company's Common Stock computed using
the following formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock purchasable under this Warrant (at
the date of such calculation).
A = the fair market value of one share of the Company's Common Stock (at
the date of such calculation).
B = Warrant Price.
2.3 FAIR MARKET VALUE. For purposes of this Article II, fair market
value of one share of the Company's Common Stock shall mean:
(i) The average of the closing bid and asked prices of the Common
Stock quoted in the Over-The-Counter Market Summary, the last reported sale
price of the Common Stock or the closing price quoted on the Nasdaq National
Market System ("NMS") or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of The Wall Street
Journal for the trading day prior to the date of determination of fair market
value; or
(ii) If the Common Stock is not traded Over-The-Counter, on the NMS or
on an exchange, the per share fair market value of the Common Stock shall be as
determined by mutual agreement of the Company and the Holder; provided, however
that if such agreement cannot be reached within twenty (20) calendar days, such
value shall be determined by an independent appraiser appointed in good faith by
the Company's Board of Directors. The cost of such appraisal shall be borne
equally by the Company and the Holder. Such appraiser shall meet the following
criteria: (a) it shall not be associated or affiliated with the Company in any
fashion and shall not have previously provided services to the Company; (b) the
appraiser shall have reasonable qualifications to appraise the value of the
Common Stock; (c) it is not (and none of its affiliates is) a promoter, director
or officer of the Company or any of its affiliates or an underwriter with
respect to any of the securities of the Company; and (d) it does not provide any
advice or opinions of the Company except as an appraiser under this section. In
the event such an appraisal is required it should be conducted under the
following procedures: the Company shall select the appraiser within ten (10)
days of receipt of written notice from the Holder that agreement cannot be
reached and the Company shall submit the name of such appraiser to Holder.
Twenty (20) days after selection of the appraiser, the Company and the Holder
shall each submit to the appraiser a single value representing such party's
contention as to the fair market value of one share of the Company's Common
Stock. Within fifteen (15) days after receipt of the submission of the Company
and the Holder, the appraiser shall select one of the two values submitted by
the parties, and such value shall be the fair market value of one share of the
Common Stock for purpose of this Warrant. The appraiser shall have no discretion
to take any action other than selection of one of the two values submitted to
the appraiser. The parties may submit to the appraiser and one another, at the
time they submit their respective single values, such supporting documentation
as they deem necessary or appropriate. The parties shall have the opportunity
seven (7) business days after receipt of other party's proposed valuation and
supporting documentation to provide the appraiser and each other with
supplemental written information. The appraiser may, in its discretion, hold a
single six (6) hour hearing on valuation issues. If a hearing is held, each
party shall be allocated three (3) hours. The appraiser may conduct the hearing
in accordance with any rules of procedure it deems appropriate. The value
selected by the appraiser shall be final and binding upon the parties without
any further right of appeal.
2.4 STOCK CERTIFICATES. 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 Holder within a reasonable time and, unless this
Warrant has been fully exercised or has expired, a new Warrant representing the
remaining unexercised Aggregate Price shall also be issued to Holder at such
time.
2.5 STOCK FULLY PAID; RESERVATION OF SHARES. The Company covenants and
agrees that all Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issue thereof
(excluding taxes based on the income of Holder). 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 issuance a sufficient number of shares of its Common Stock or other
securities as would be required upon the full exercise of the rights represented
by this Warrant (including conversion of all such Common Stock issuable
hereunder).
2.6 FRACTIONAL SHARES. No fractional share of Common Stock will be issued
in connection with any exercise hereof; in lieu of a fractional share
upon complete exercise hereof, Holder may purchase a whole share by delivering
payment equal to the appropriate portion of the then effective Warrant Price.
ARTICLE 3
CERTAIN ADJUSTMENTS OF NUMBER
OF SHARES PURCHASABLE AND WARRANT PRICE
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:
3.1 RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of: (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant; (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification, change or exchange of outstanding securities issuable upon
exercise of this Warrant); or (iii) any sale or transfer to another corporation
of all, or substantially all, of the property of the Company, then, and in each
such event, the Company or such successor or purchasing corporation, as the case
may be, shall execute a new Warrant of like form, tenor and effect and which
will provide that Holder shall have the right to exercise such new Warrant and
purchase upon such exercise, in lieu of each share of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of securities, money
and property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by a holder of one share of Common Stock issuable upon
exercise of this Warrant had this Warrant been exercised immediately prior to
such reclassification, change, consolidation, merger, sale or transfer. Such new
Warrant shall be as nearly equivalent in all substantive respects as practicable
to this Warrant and the adjustments provided in this Article III and the
provisions of this Section 3.1, shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
3.2 SUBDIVISION OR COMBINATION OF SHARES. If the Company shall at any time
while this Warrant remains outstanding and less than fully exercised: (i) divide
its Company Stock, the Warrant Price shall be proportionately reduced; or (ii)
shall combine shares of its Common Stock, the Warrant Price shall be
proportionately increased.
3.3 STOCK DIVIDENDS. If the Company, at any time while this Warrant is
outstanding and unexpired, shall pay a dividend payable in, or make any other
distribution to holders of, Common Stock (except any distribution described in
Sections 3.1 and 3.2 hereof) then the Warrant Price shall be adjusted to that
price determined by multiplying the Warrant Price then in effect by a fraction,
the numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
3.4 TIME OF ADJUSTMENTS TO THE WARRANT PRICE. All adjustments to the
Warrant Price and the number of shares purchasable hereunder, unless otherwise
specified herein, shall be effective as of the earlier of:
(i) the date of issue of the security causing the adjustment;
(ii) the date of sale of the security causing the adjustment;
(iii) the effective date of a division or combination of shares;
(iv) the record date of any action of holders of any class of the
Company's capital stock taken for the purpose of entitling shareholders to
receive a distribution or dividend payable in equity securities, provided that
such division, combination, distribution or dividend actually occurs.
3.5 NOTICE OF ADJUSTMENTS. In each case of an adjustment in the Warrant
Price and the number of shares purchasable hereunder, the Company, at its
expense, shall cause the Chief Financial Officer of the Company to compute such
adjustment and prepare a certificate setting forth such adjustment and showing
in detail the facts upon which such adjustment is based. The Company shall
promptly mail a copy of each such certificate to Holder pursuant to Section 6.8
hereof.
3.6 DURATION OF ADJUSTED WARRANT PRICE. Following each adjustment of the
Warrant Price, such adjusted Warrant Price shall remain in effect until a
further adjustment of the Warrant Price.
3.7 ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the Warrant
Price pursuant to this Article III, the number of shares of Common Stock
purchasable hereunder shall be adjusted to the nearest whole share, to the
number obtained by dividing the Aggregate Price by the Warrant Price as
adjusted.
ARTICLE 4
TRANSFER, EXCHANGE AND LOSS
4.1 TRANSFER. This Warrant is transferable on the books of the Company at
its principal office by the registered Holder hereof upon surrender of this
Warrant properly endorsed, subject to compliance with federal and state
securities laws. The Company shall issue and deliver to the transferee a new
Warrant or Warrants representing the Warrants so transferred. Upon any partial
transfer, the Company will issue and deliver to Holder a new Warrant or Warrants
with respect to the Warrants not so transferred. Notwithstanding the foregoing,
Holder shall not be entitled to transfer a number of shares or an interest in
this Warrant representing less than five percent (5%) of the aggregate shares
initially covered by this Warrant (as presently constituted, with appropriate
adjustment being made in the event of stock splits, combinations,
reorganizations and the like occurring after the issue date hereof). Any
transferee shall be subject to the same restrictions on transfer with respect to
this Warrant as the Purchaser.
4.2 SECURITIES LAWS. Upon any issuance of shares of Common Stock upon
exercise of this Warrant, it shall be the Company's responsibility to comply
with the requirements of: (1) the Securities Act of 1933, as amended; (2) the
Securities Exchange Act of 1934, as amended; (3) any applicable listing
requirements of any national securities exchange; (4) any state securities
regulation or "Blue Sky" laws; and (5) requirements under any other law or
regulation applicable to the issuance or transfer of such shares. If required by
the Company, in connection with each issuance of shares of Common Stock upon
exercise of this Warrant, the Holder will give: (i) assurances in writing,
satisfactory to the Company, that such shares are not being purchased with a
view to the distribution thereof in violation of applicable laws, (ii)
sufficient information, in writing, to enable the Company to rely on exemptions
from the registration or qualification requirements of applicable laws, if
available, with respect to such exercise, and (iii) its cooperation to the
Company in connection with such compliance.
4.3 EXCHANGE. This Warrant is exchangeable at the principal office of the
Company for Warrants which represent, in the aggregate, the Aggregate Price
hereof; each new Warrant to represent the right to purchase such portion of the
Aggregate Price as Holder shall designate at the time of such exchange. Each new
Warrant shall be identical in form and content to this Warrant, except for
appropriate changes in the number of shares of Common Stock covered thereby, the
percentage stated in Section 4.1 above, and any other changes which are
necessary in order to prevent the Warrant exchange from changing the respective
rights and obligations of the Company and the Holder as they existed immediately
prior to such exchange.
4.4 LOSS OR MUTILATION. Upon receipt by the Company of evidence
satisfactory to it of the ownership of, and the loss, theft, destruction or
mutilation of, this Warrant and (in the case of loss, theft, or destruction) of
indemnity satisfactory to it, and (in the case of mutilation) upon surrender and
cancellation hereof, the Company will execute and deliver in lieu hereof a new
Warrant.
ARTICLE 5
HOLDER RIGHTS
5.1 NO SHAREHOLDER RIGHTS UNTIL EXERCISE. No Holder hereof, solely by
virtue hereof, shall be entitled to any rights as a shareholder of the Company.
Holder shall have all rights of a shareholder with respect to securities
purchased upon exercise hereof at the time: (i) the cash exercise price for such
securities is delivered pursuant to Section 2.1 hereof and this Warrant is
surrendered, (ii) of delivery of notice of cashless exercise pursuant to Section
2.2 hereof and this Warrant is surrendered, or (iii) of automatic exercise
hereof (even if not surrendered) pursuant to Section 2.5 hereof.
ARTICLE 6
MISCELLANEOUS
6.1 GOVERNMENTAL APPROVALS. The Company will from time to time take all
action which may be necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and
securities acts filings under federal and state laws, which may be or become
requisite in connection with the issuance, sale, and delivery of this Warrant,
and the issuance, sale and delivery of the Common Stock or other securities or
property issuable or deliverable upon exercise of this Warrant.
6.2 GOVERNING LAWS. IT IS THE INTENTION OF THE PARTIES HERETO THAT EXCEPT
AS SET FORTH BELOW, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, U.S.A.
(IRRESPECTIVE OF ITS CHOICE OF LAW PRINCIPLES) SHALL GOVERN THE VALIDITY OF THIS
WARRANT, THE CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION AND ENFORCEMENT
OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO.
6.3 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless otherwise
provided in, this Warrant, each and all of the covenants, terms, provisions, and
agreements contained herein shall be binding upon, and inure to the benefit of
the permitted successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
6.4 SEVERABILITY. If any one or more provisions of this Warrant, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Warrant and the application of such
provisions to other persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties hereto. The parties further agree to
replace any such void or unenforceable provisions of this Warrant with valid and
enforceable provisions which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.5 DEFAULT, AMENDMENT AND WAIVERS. This Warrant may be amended upon the
written consent of the Company and the holders in the aggregate of the right to
purchase a majority of the number of unexercised shares covered by the Warrant
initially issued by the Company pursuant to the Consulting Agreement. The waiver
by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default. The failure
to cure any breach of any term of this Warrant within ten (10) days of written
notice thereof shall constitute an event of default under this Warrant.
6.6 NO WAIVER. The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such party
thereafter to enforce such provisions.
6.7 ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this Warrant, the prevailing party shall be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal). The prevailing party shall be the party entitled to recover its
costs of suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating the
amount of a judgment for purposes of determining if a party is entitled to
recover costs or attorneys' fees.
6.8 NOTICES. Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Warrant, each such communication
shall be in writing and shall be effective only if it is delivered by personal
service or mailed, United States certified mail, postage prepaid, return receipt
requested, addressed as follows:
Company: Appiant Technologies, Inc.
6663 Owens Drive
Pleasanton
California 94588
Attn: Douglas S. Zorn
Holder:
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Such communications shall be effective when they are received by the addressee
thereof; but if sent by certified mail in the manner set forth above, they shall
be effective three (3) business days after being deposited in the United States
mail. Any party may change its address for such communications by giving notice
thereof to the other party in conformity with this Section.
6.9 TIME. Time is of the essence of this Warrant.
6.10 CONSTRUCTION OF AGREEMENT. A reference in this Warrant to any Section
shall include a reference to every Section the number of which begins with the
number of the Section to which reference is specifically made (E.G., a reference
to Section 3 shall include a reference to Sections 3.5 and 3.7). The titles and
headings herein are for reference purposes only and shall not in any manner
affect the interpretation of this Warrant.
6.11 NO ENDORSEMENT. Holder understands that no federal or state securities
administrator has made any finding or determination relating to the fairness of
investment in the Company or purchase of the Common Stock hereunder and that no
federal or state securities administrator has recommended or endorsed the
offering of securities by the Company hereunder.
6.12 PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
6.13 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
any other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes of
this Warrant.
Appiant Technologies, Inc., a Delaware corporation
By: /s/ Sandra Williams Smith
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Sandra Williams Smith General Council and
Corporate Secretary
EXHIBIT B-1
NOTICE OF EXERCISE OF COMMON STOCK WARRANT
BY CASH PAYMENT OF WARRANT PRICE
DATE: __________________________
_________________________ Aggregate Price of Warrant
_________________________ Before Exercise: $_______________
_________________________ Aggregate Price
Attention: Chief Financial Officer Being Exercised: $_______________
Warrant Price: $ per share
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Number of Shares of Common Stock to be
Issued Under this Notice:
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Remainder Aggregate
Price (if any) After Issuance: $
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CASH EXERCISE
Gentlemen:
The undersigned registered Holder of the Common Stock Warrant delivered
herewith ("WARRANT"), hereby irrevocably exercises such Warrant for, and
purchases thereunder, shares of the Common Stock of Appiant Technologies, Inc.,
a Delaware corporation, as provided below. Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given in the Warrant.
The portion of the Aggregate Price (as defined in the Warrant) to be applied
toward the purchase of Common Stock pursuant to this Notice of Exercise is
$______, thereby leaving a remainder Aggregate Price (if any) equal to $______.
Such exercise shall be pursuant to the cash exercise provisions of Section 2.1
of the Warrant. Therefore, Holder makes payment with this Notice of Exercise by
way of check payable to the Company in the amount of $______. Such check is
payment in full under the Warrant for shares of Common Stock based upon the
Warrant Price of $ per share, as currently in effect under the Warrant. Holder
requests that the certificates for the purchased shares of Common Stock be
issued in the name of and delivered to "_______________________",
_______________________________. To the extent the foregoing exercise is for
less than the full Aggregate Price, a Replacement Warrant representing the
remainder of the Aggregate Price and otherwise of like form, tenor and effect
should be delivered to Holder along with the share certificates evidencing the
Common Stock issued in response to this Notice of Exercise.
By:
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(NAME)
NOTE
The execution to the foregoing Notice of Exercise must exactly correspond
to the name of the Holder on the Warrant.