EXHIBIT 4.4
THIS WARRANT AND THE SECURITIES TO BE ACQUIRED UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER
ANY APPLICABLE STATE SECURITIES LAWS.
August 17,1998 No. 001
-----
WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
CONCURRENT COMPUTER CORPORATION
This certifies that Scientific-Atlanta, Inc. and its registered successors
and assigns (the "Holder"), for value received, is entitled to purchase from
------
Concurrent Computer Corporation, a Delaware corporation (the "Company"), having
-------
a place of business at 1025 West Cypress Creek Road, Fort Lauderdale, Florida
33309, for cash at the price of $5.00 per share (the "Stock Purchase Price") at
--------------------
any time or from time to time after the date (the "Commencement Date") on which
-----------------
the Development Agreement (as hereinafter defined) is executed up to and
including 5:00 p.m. (Eastern time) on the date of the fourth anniversary of the
Commencement Date (the "Expiration Date"), two million (2,000,000) fully paid
---------------
and nonassessable shares of the Company's Common Stock, $0.01 par value per
share (the "Common Stock"), upon surrender to the Company at its principal
-------------
office (or at such other location as the Company may advise the 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;
provided however, this Warrant shall be automatically terminated and declared
null and void upon written notice by the Holder to the Company that the Holder
does not intend to enter into the Development Agreement with the Company.
"Development Agreement" shall mean the written agreement between the Holder and
the Company which sets forth the terms and conditions upon which the parties to
such agreement intend to jointly develop and deploy video-on-demand systems to
cable network operators.
54
This Warrant is subject to the following terms and conditions.
10 EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 GENERAL. This Warrant is exercisable at the option of the
Holder, at any time or from time to time after the Commencement Date up to and
including the Expiration Date for all or any part of the shares of Common Stock
(but not for a fraction of a share) which may be purchased hereunder. 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, properly endorsed, together with the completed, executed
Form of Subscription, and payment made for such shares. 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 Warrant have been so
exercised. In case of a purchase of less than all the shares of Common Stock
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 of Common Stock purchasable under the Warrant surrendered to the
Holder hereof within a reasonable time. Each stock certificate so delivered
shall be in such denominations of Common Stock as may be required by the Holder
hereof and shall be registered in the name of such Holder.
2. 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 issued, fully paid and nonassessable, 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 when and as required to provide for the exercise in full
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 is listed; provided, however, that the Company shall not be required to
effect a registration under federal or state securities laws with respect to
such exercise. If at any time the total number of shares of Common Stock
issuable pursuant hereto, together with the maximum number of shares of Common
Stock issuable upon conversion, exchange or exercise of (i) all then-outstanding
securities (whether debt or equity) of the Company convertible or exchangeable
for Common Stock and (ii) all then-outstanding warrants and options to purchase
Common Stock, would exceed the total number of shares of Common Stock then
authorized by the Company's articles of incorporation but unissued, the Company
shall promptly amend its articles of incorporation to increase the number of
authorized shares of Common Stock such that there shall be a sufficient number
of authorized and unissued shares of Common Stock available at all times to
effect the exercise hereof.
55
3. ANTIDILUTION ADJUSTMENTS. The Stock Purchase Price or shares
issuable hereunder shall be subject to adjustment from time to time upon the
occurrence of certain events described in this Section 3.
3.1 ADJUSTMENT FOR STOCK SPLITS, COMBINATIONS, DIVIDENDS AND
DISTRIBUTIONS.
(a) Adjustment for Stock Splits. If the Company shall, at any time
----------------------------
or from time to time, effect a subdivision of the outstanding shares of Common
Stock, the Stock Purchase Price payable upon exercise of this Warrant in effect
immediately prior to such subdivision shall be proportionately decreased by
multiplying (i) such Stock Purchase Price, by (ii) a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to such subdivision; and
(B) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately after such subdivision.
(b) Adjustment for Stock Combination. If the Company shall, at any
---------------------------------
time or from time to time, effect any combination of the outstanding shares of
Common Stock, the Stock Purchase Price payable upon exercise of this Warrant in
effect immediately prior to such combination shall be proportionately increased
by multiplying (i) such Stock Purchase Price, by (ii) a fraction:
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to such combination; and
(B) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately after such combination.
(c) Date Adjustment Effective. Any adjustment under paragraph (a)
---------------------------
or (b) of this Section 3.1 shall become effective at the close of business on
the date on which such subdivision or combination becomes effective.
(d) Adjustment for Stock Dividend or Distribution. In the event the
---------------------------------------------
Company shall, at any time or from time to time, make or issue, or fix a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of Common Stock,
then, and in each such event, the Stock Purchase Price payable upon exercise of
this Warrant then in effect shall be decreased as of the time of such issuance
or, in the event such a record date shall have been fixed, as of the close of
the business on such record date, by multiplying (i) the Stock Purchase Price
payable upon exercise of this Warrant then in effect, by (ii) a fraction:
56
(A) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date; and
(B) the denominator of which shall be the sum of (1) the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date, plus (2) the
total number of shares of Common Stock issuable in payment of such dividend or
distribution; provided however, that if such a record date shall have been fixed
and such dividend is not fully paid, or such distribution is not fully made, on
the date fixed therefor, then the Stock Purchase Price shall be recomputed
accordingly as of the close of business on such record date.
In the event that the Holder elects to exercise such Warrant after any
record date for determining holders of Common Stock entitled to receive any
dividend or other distribution payable in shares of Common Stock but prior to
the date on which such dividend is paid, the Company may defer, until such
dividend is paid, the issue to the Holder of all of the additional shares of
Common Stock issuable to the Holder upon the exercise of this Warrant solely by
reason of the adjustment made to the Stock Purchase Price pursuant to paragraph
(d) of this Section 3.1 on the record date for such dividend; provided however,
that the Company shall, promptly upon the request of the Holder, issue to the
Holder a written certificate or other instrument evidencing the Holder's right
to receive such additional shares of Common Stock
3.2 DIVIDENDS IN OTHER STOCK AND PROPERTY; RECLASSIFICATION. If at any
time or from time to time 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) any shares of stock or other securities which 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 by way of dividend or other distribution,
(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 an event for which adjustment is
otherwise made pursuant to Section 3.4 below), 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 therefor, the amount of stock
and other securities and property (other than cash paid or payable as a cash
dividend) 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 other shares of stock
and other securities and property.
57
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
If any reorganization of the capital stock of the Company, or any consolidation
or merger of the Company with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be effected in such
a way that holders of Common Stock shall be entitled to receive stock,
securities, or other assets or property, 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
other assets or property 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
reorganization described above, appropriate provisions 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 number of shares of Common Stock purchasable and receivable
upon the exercise of this Warrant) shall thereafter be applicable, as nearly as
may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise hereof. The Company will not effect any such
consolidation, merger or sale unless, prior to the consummation thereof, the
successor corporation (if other than the Company) resulting from such
consolidation or the corporation purchasing such assets shall assume by written
instrument, executed and mailed or delivered to the registered Holder hereof at
the last address of such Holder appearing on the books of the Company, the
obligation to deliver to such Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Holder may be entitled to
purchase.
3.4 NOTICE OF ADJUSTMENT. Upon any adjustment pursuant to this Section
3, 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, and, in case of a Holder with
an address of record outside of the United States, by facsimile, and confirmed
in writing by first class air mail. The notice shall be signed by the Company's
chief financial officer and shall state the nature of such adjustment, setting
forth in reasonable detail the method of effecting the adjustment and the facts
upon which such adjustment is based. If at any time in addition to any of the
adjustments set forth in this Section 3, an increase in the number of authorized
and unissued shares of Common Stock is required pursuant to Section 2 hereof,
the Company shall promptly provide to the Holder a certificate of the Secretary
of the Company certifying that the requisite number of shares of Common Stock
have been authorized to permit the exercise of the Warrant.
58
3.5 OTHER NOTICES. If at any time:
(1) the Company shall declare any cash dividend upon its Common
Stock;
(2) the Company shall declare any dividend upon its Common Stock
payable in stock or make any special dividend or other distribution to the
holders of its Common Stock;
(3) 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;
(4) there shall be any capital reorganization or reclassification
of the capital stock of the Company; or consolidation or merger of the Company;
or consolidation or merger of the Company with, or sale of all or substantially
all of its assets to, another corporation; or
(5) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
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, (a) at least twenty (20) days'
prior written notice (by the method set forth in Section 3.4 above) of the date
on which the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights or for determining rights to
vote in respect of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, and (b) in the case of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, at least twenty (20) days' prior written notice of
the date when the same shall take place. Any notice given in accordance with
the foregoing clause (a) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto. Any notice given in accordance with the
foregoing clause (b) shall 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 such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding-up or conversion, as the case
may be.
59
3.6 CERTAIN EVENTS. If any change in the outstanding Common
Stock of the Company or any other event occurs as to which the other provisions
of this Section 3 are not strictly applicable or if strictly applicable would
not, in the reasonable opinion of the Company, fairly protect the purchase
rights of the Holder of the Warrant in accordance with the essential intent and
principles of such provisions, then the Board of Directors of the Company shall
make an adjustment in the number and class of shares purchasable upon exercise
of this Warrant or the application of such provisions, so as to protect such
purchase rights as aforesaid. The adjustment shall be such as will give the
Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price
the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Common Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) 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.
5. 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.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATIONS OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company or any other matters or any rights whatsoever as a stockholder 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 stockholder of the Company,
whether such liability is asserted by the Company or by its creditors.
7. REGISTRATION RIGHTS. The Holder hereof shall have the following
rights:
7.1 DEMAND REGISTRATION. The Holder hereof shall have the right
to request, on one (1) occasion, that the Company prepare and promptly file a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") covering the shares of Common Stock then issuable upon
exercise hereof (but not less than 500,000 shares) and the Company shall use its
best efforts to cause such registration statement to become effective as
expeditiously as possible. Upon the receipt of such written request, the
Company shall give prompt written notice to all the Holders that it shall use
its best efforts to effect such registration; provided, however, that the
-------- -------
Company shall not be required to effect any registration pursuant to this
Section 7.1:
(A) unless it shall have received written assurance that the
Warrant will be exercised no later than the closing of the sale of the Common
Stock to be sold pursuant to the related registration statement; or
60
(B) at any time prior to the expiration of a period of such
number of days following the date on which any previous distribution attempted
in respect of a registration requested pursuant to this Section 7.1 shall have
been terminated without being consummated as shall be determined by the lead
managing underwriter of any such underwritten offering (or, in the event no
underwriter shall have participated in such terminated distribution, by an
investment banking firm of recognized national standing selected by the Holder)
to be reasonably necessary and appropriate to effect the successful distribution
of securities in a subsequent registration requested pursuant to this Section
7.1, but in any event not more than 90 days after any such registration shall
have been terminated or not consummated; or
(C) at any time, as the Board of Directors of the Company
shall have reasonably determined that (1) such registration would have a
material adverse effect on any plan by the Company to engage in any acquisition
of material assets or any merger, consolidation, tender offer, or similar
transaction, (2) such registration would require the Company to file a
registration statement which includes audited financial statements as of any
date other than the date as of which the Company regularly prepares audited
financial statements and if the preparation thereof would entail material
out-of-pocket expense on the part of the Company, (3) such registration would
have a material adverse effect on the distribution of a registered primary
offering of equity securities by the Company pursuant to a registration
statement filed no more than four months before the date of such demand in
connection with which the Holder was offered the opportunity to participate
pursuant to Section 7.2 hereof, or (4) the Company has received a written
opinion of independent counsel, a copy of which will be provided to the Holder,
that the securities requested to be registered are freely tradable without
registration pursuant to Rule 144(k) (or any successor thereto) under the
Securities Act and applicable state securities laws; in any of the events
described in clauses (C) (1), (C) (2), (C) (3) or (C) (4), the Company may delay
commencement of its efforts to effect the registration pursuant to this Section
7.1 until the earlier to occur of (x) the expiration of the 90-day period
following the date on which such registration was requested or (y) such time as
the circumstances requiring such a delay in registration cease to exist,
provided, however, that the Company shall not be entitled to delay any such
- -------- -------
registration for more than one such 90-day period; and provided, further,
-------- -------
however, that in any of the events described in clauses (C) (1), (C) (2), (C)
- -------
(3), or (C) (4), the Holder shall be entitled to withdraw such request and,
notwithstanding anything else provided herein, such demand shall not count as
the permitted demand registration as described in this Section 7.1.
61
7.2 PIGGYBACK RIGHTS. In addition, each time the Company shall
determine to file a registration statement under the Securities Act, (excluding
a registration on Form S-4 or S-8 or a registration statement on Form S-1
covering solely an employee benefit plan) in connection with the proposed offer
and sale for money of any of its securities either for its own account or on
behalf of any other security holder, the Company shall give prompt written
notice of such determination to the Holder hereof. The Holder hereof shall
provide a written request to the Company if it desires to participate in such
registration (the "Holder Notice"), accompanied by this Warrant, duly endorsed,
together with a Form of Subscription attached hereto, duly filled in and signed,
and the prompt payment in cash or by check of the aggregate Stock Purchase Price
for the shares for which this Warrant is being exercised in accordance with
Section 1 hereof, stating the number of shares of Common Stock to be
registered, which Holder Notice must be given within twenty (20) days after the
receipt by the Holder of the Company's notice. Upon receipt of the Holder
Notice, the Company shall cause all shares of Common Stock issuable upon
exercise of this Warrant with respect to which the Holder hereof has requested
registration to be included in such registration statement and registered under
the Securities Act, all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Common Stock issuable
upon exercise hereof to be so registered. If the registration of which the
Company gives written notice pursuant to this Section 7.2 is for a public
offering involving an underwriting, the Company shall so advise the Holder as a
part of its written notice. In such event, the right of the Holder hereof to
registration pursuant to this Section 7.2 shall be conditioned upon the Holder's
participation in such underwriting and the inclusion of such Holder's shares of
Common Stock in the underwriting to the extent provided herein.
If, at any time after giving written notice of its intention to
register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company will
give written notice of such determination to the Holder, and, upon giving such
notice, the Company shall be relieved of its obligation to register any Common
Stock acquired upon exercise of the Warrant in connection with such registration
(but not from its obligation to pay the registration expenses in connection
therewith), without prejudice, however, to the rights of the Holder to request
that such registration be effected as a registration under Section 7.1.
If, in connection with a registration pursuant to this Section 7.2,
the lead managing underwriter advises the Company in writing that, in its
opinion, the total number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially and adversely affecting the offering price of such securities by such
underwriters (such opinion to state the reasons therefor), the Company will
promptly furnish the Holder with a copy of such opinion and will include the
Common Stock to be acquired upon exercise of the Warrant in such registration to
the extent of the number which the Company is so advised can be sold in such
offering, determined as follows:
(i) if such registration as proposed by the Company involves
a primary registration of its securities, (x) first, the securities the Company
-----
proposes to sell, and (y) second, securities of the Company (including without
-------
limitation securities issuable upon conversion, exercise or exchange of other
securities of the Company, and including the Common Stock to be acquired upon
exercise of the Warrant) pursuant to contractual rights, pro rata among the
--- ----
holders thereof (or, where appropriate, of the securities convertible into or
exercisable or exchangeable for the securities to be registered) on the basis of
the number of shares of such securities requested to be included by such
holders, and
62
(ii) if such registration as proposed by the Company was
requested by holders of securities of the Company other than the Holder, (x)
first, such securities held by the holders initiating such registration, and (y)
- -----
second, securities of the Company (including without limitation securities
- ------
issuable upon conversion, exercise or exchange of other securities of the
Company, and including the Common Stock to be acquired upon exercise of the
Warrant) requested to be included in such registration pursuant to contractual
rights, pro rata among the holders thereof (or, where appropriate, of the
- ------ --- ----
securities convertible into or exercisable or exchangeable for the securities to
be registered) on the basis of the number of shares of such securities requested
to be included by such holders.
7.3 PROCEDURE. If and whenever the Company is required by the
provisions of this Section 7 to effect the registration of shares of Common
Stock issuable upon the exercise hereof under the Securities Act, the Company,
at its expense and as expeditiously as possible shall, in accordance with the
Securities Act and all applicable rules and regulations, prepare and file with
the Securities and Exchange Commission (the "Commission") a registration
----------
statement with respect to such securities and shall use its best efforts to
cause such registration statement to become and remain effective until the
securities covered by such registration statement have been sold, and prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to keep such registration statement effective and such registration statement
and prospectus accurate and complete until the securities covered by such
registration statement have been sold. The Company shall furnish to the Holder
participating in such registration and to the underwriters of securities being
registered such number of copies of the registration statement and each
amendment and supplement thereto, preliminary prospectus, final prospectus and
such other documents as such underwriters and holders may reasonably request in
order to facilitate the public offering of such securities. In addition, the
Company shall otherwise take such other actions as are necessary and appropriate
to effect any such registration in compliance with all provisions of the
Securities Act and all applicable state securities laws, including, without
limitation, using its best efforts to register or qualify the securities covered
by such registration statement under such state securities or Blue Sky laws of
such jurisdictions as reasonably necessary to effect the sale thereof and such
other actions as the Holder shall reasonably request.
8. MODIFICATION AND WAIVER. This Warrant and any provision hereof may
be changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, 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 or such
other address as either may from time to time provide to the other and shall be
sent to any such holder located outside of the United States by facsimile
confirmed in writing by first class air mail.
10. 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 assigns of the holder hereof.
63
11. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description 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 Florida.
12. LOST WARRANTS. 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 this Warrant 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, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
64
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its officers, thereunto duly authorized this 17th day of August, 1998.
CONCURRENT COMPUTER CORPORATION
a Delaware corporation
By: /s/ E. Courtney Siegel
-------------------------
E. Courtney Siegel
Title: Chairman, President and Chief
--------------------------------
Executive Officer
------------------
ATTEST:
/s/ Karen G. Fink
- --------------------
Karen G. Fink
Secretary
65
EXHIBIT A
SUBSCRIPTION FORM
Date:
Gentlemen:
The undersigned hereby elects to exercise the warrant issued to it by Concurrent
Computer Corporation (the "Company") and dated , 1998, (the
------- -----------------
"Warrant") and initially to purchase thereunder shares of the
------- ---------------
Common Stock of the Company (the "Shares"), subject to adjustment and increase,
------
at a purchase price of Dollars ($ )
----------------------------------- ---------
per share or an aggregate purchase price of Dollars ($ ) (the "Purchase
---------- --------
Price").
- -----
Pursuant to the terms of the Warrant the undersigned has delivered the
Purchase Price herewith in full in cash or by certified check or wire transfer.
The undersigned also makes the representations set forth on the attached Exhibit
B of the Warrant.
Very truly yours,
By:
---------------------------------
Title:
---------------------------------
66
EXHIBIT B
THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO CONCURRENT COMPUTER
CORPORATION, ALONG WITH THE SUBSCRIPTION FORM BEFORE THE COMMON STOCK ISSUABLE
UPON EXERCISE OF THE WARRANT CERTIFICATE DATED , 1998 WILL BE ISSUED.
____________________________
Concurrent Computer Corporation
Attention: President
The undersigned, ("Purchaser"), intends to acquire up
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to shares of the Common Stock (the "Common
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Stock") of Concurrent Computer Corporation (the "Company") from the Company
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pursuant to the exercise or conversion of a certain Warrant to purchase Common
Stock held by Purchaser. The Common Stock will be issued to Purchaser in a
transaction not involving a public offering and pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the "Securities Act")
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and applicable state securities laws. In connection with such purchase and in
order to comply with the exemptions from registration relied upon by the
Company, Purchaser represents, warrants and agrees as follows:
Purchaser is acquiring the Common Stock for its own account, to hold for
investment, and Purchaser shall not make any sale, transfer or other disposition
of the Common Stock in violation of the Securities Act or the General Rules and
Regulations promulgated thereunder by the Securities and Exchange Commission
(the "SEC") or in violation of any applicable state securities law.
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Purchaser has been advised that the Common Stock has not been registered
for initial issuance under the Securities Act or state securities laws on the
ground that this transaction is exempt from registration, and that reliance by
the Company on such exemptions is predicated in part on Purchaser's
representations set forth in this letter.
Purchaser has been informed that under the Securities Act and applicable
state securities laws, the Common Stock must be held indefinitely unless it is
subsequently registered under the Securities Act and applicable state securities
laws or unless an exemption from such registration is available with respect to
any proposed transfer or disposition by Purchaser of the Common Stock.
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Purchaser also understands and agrees that there will be placed on the
certificate(s) for the Common Stock, or any substitutions therefor, a legend
stating in substance:
The securities evidenced by this certificate have not been registered under the
securities act of 1933, as amended, or under any applicable state securities
laws. The securities may not be sold or transferred in the absence of such
registration or an exemption therefrom under such act and under any applicable
state securities laws.
Purchaser has carefully read this letter and has discussed its requirements
and other applicable limitations upon Purchaser's resale of the Common Stock
with Purchaser's counsel.
Very truly yours,
(Purchaser)
By:
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Title:
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