Exhibit 4.1
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT"). THE WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED,
ASSIGNED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH WARRANT UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS
AVAILABLE.
THIS WARRANT AND THE SHARES OF PREFERRED STOCK OR COMMON STOCK ISSUED UPON ITS
EXERCISE OR CONVERSION ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN
SECTION 4 OF THIS WARRANT.
Warrant No. Number of Shares:
Date of Issuance: December 5, 2000 (subject to adjustment as set forth herein)
THE IXATA GROUP, INC.
Form of Series C Preferred Stock Purchase Warrant
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(Void after December 5, 2005)
The IXATA Group, Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that _______________ or its registered assigns (the
"Registered Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time on or after the date
of issuance and on or before December 5, 2005, at not later than 5:00 P.M.
(Eastern Time) _____________ (______) shares of Series C Convertible Preferred
Stock of the Company ("Series C Preferred"), at a purchase price per share (the
"Purchase Price") of $1.00. The shares purchasable upon exercise of this
Warrant, and the purchase price per share, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as the
"Warrant Shares" and the "Purchase Price," respectively. This Warrant is issued
pursuant to a Series C Convertible Preferred Stock and Series C Convertible
Preferred Stock Warrant Purchase Agreement of even date herewith among the
Company and the Purchasers named therein (the "Agreement"), and the terms of
this Warrant are subject to the terms of the Agreement.
1. Exercise.
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(a) Except as set forth in subsection 1(b) below, this Warrant may be
exercised by the Registered Holder in whole or in part, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by
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such Registered Holder's duly authorized attorney, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased upon
such exercise.
(b) The Registered Holder may, at its option, elect to pay some or
all of the Purchase Price payable upon an exercise of this Warrant by canceling
a portion of this Warrant exercisable for such number of shares of the Company's
common stock, $0.001 par value (the `Common Stock"), as is then issuable upon
conversion of the Series C Preferred (as to which this Warrant is exercisable)
determined by dividing (i) the total Purchase Price payable in respect of the
number of shares of Series C Preferred being purchased upon such exercise by
(ii) the excess of the Fair Market Value per share of Common Stock as of the
effective date of exercise, as determined pursuant to Section 1(c) below (the
"Exercise Date") over the Purchase Price per share. If the Registered Holder
wishes to exercise this Warrant pursuant to this method of payment with respect
to the maximum number of shares of Common Stock so purchasable pursuant to this
method, then the number of shares of Common Stock so purchasable shall be equal
to the total number of shares of Common Stock, minus the product obtained by
multiplying (x) the total number of shares of Common Stock purchasable by (y) a
fraction, the numerator of which shall be the Purchase Price per share and the
denominator of which shall be the Fair Market Value per share of Common Stock as
of the Exercise Date. The Fair Market Value per share of Common Stock shall be
determined as follows:
(i) If the Common Stock is listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized exchange
or trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the average last reported sale prices per
share of Common Stock thereon over the thirty-day period the Exercise Date; or,
if no such price is reported on such date, such price on the next preceding
business day.
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized exchange
or trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by the
Board of Directors to represent the fair market value per share of the Common
Stock (including without limitation a determination for purposes of granting
Common Stock options or issuing Common Stock under an employee benefit plan of
the Company); and, upon request of the Registered Holder, the Board of Directors
(or a representative thereof) shall promptly notify the Registered Holder of the
Fair Market Value per share of Common Stock. Notwithstanding the foregoing, if
the Board of Directors has not made such a determination within the three-month
period prior to the Exercise Date, then (A) the Fair Market Value per share of
Common Stock shall be the amount next determined by the Board of Directors to
represent the Fair Market Value per share of Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under an employee benefit plan of the Company), (B) the
Board of Directors shall make a determination within 15 days of a request by the
Registered Holder that it do so, and (C) the exercise of this Warrant pursuant
to this subsection 1(b) shall be delayed until such determination is made.
References in this Warrant to "Warrant Shares" shall include shares of Common
Stock purchasable under this subsection (b).
(c) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above. At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such
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exercise as provided in subsection 1(d) below shall be deemed to have become the
holder or holders of record of the Warrant Shares represented by such
certificates.
(d) As soon as practicable after the exercise of this Warrant in
whole or in part the Company, at its expense, will cause to be issued in the
name of, and delivered to, the Registered Holder, or as such Registered Holder
(upon payment by such Registered Holder of any applicable transfer taxes and
subject to compliance with all applicable federal and state securities laws) may
direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of such shares purchased by the Registered
Holder upon such exercise as provided in subsection 1(a) above.
2. Adjustments.
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(a) Purchase Price. The Purchase Price shall be equal to the
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Conversion Price (as adjusted), as defined in the Certificate of Designates of
the Series C Convertible Preferred Stock of the Company.
(b) Mergers, etc. If there shall occur any capital reorganization or
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reclassification of the Company's Series C Preferred or Common Stock (other than
a change in par value or a subdivision or combination that results in an
adjustment to the Purchase as provided for in subsection 2(a) above), including
without limitation any mandatory conversion of the Series C Preferred, or any
consolidation or merger of the Company with or into another corporation, or a
transfer of all or substantially all of the assets of the Company, then, as part
of any such reorganization, reclassification, consolidation, merger or sale, as
the case may be, lawful provision shall be made so that the Registered Holder of
this Warrant shall have the right thereafter to receive upon the exercise hereof
the kind and amount of shares of stock or other securities or property which
such Registered Holder would have been entitled to receive if, immediately prior
to any such reorganization, reclassification, consolidation, merger or sale, as
the case may be, such Registered Holder had held the number of the Company's
Series C Preferred or Common Stock which were then purchasable upon the exercise
of this Warrant. In any such case, appropriate adjustment (as reasonably
determined in good faith by the Board of Directors of the Company) shall be made
in the application of the provisions set forth herein with respect to the rights
and interests thereafter of the Registered Holder of this Warrant, such that the
provisions set forth in this Section 2 (including provisions with respect to
adjustment of the Purchase Price) shall thereafter be applicable, as nearly as
is reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this Warrant.
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(c) Adjustment in Number of Warrant Shares. When any adjustment is
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required to be made in the Purchase Price, the number of Warrant Shares
purchasable upon the exercise of this Warrant shall be changed to the number
determined by dividing (i) an amount equal to the number of shares issuable upon
the exercise of this Warrant immediately prior to such adjustment, multiplied by
the Purchase Price in effect immediately prior to such adjustment, by (ii) the
Purchase Price in effect immediately after such adjustment.
(d) Certificate of Adjustment. When any adjustment is required to be
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made pursuant to this Section 2, the Company shall promptly mail to the
Registered Holder a certificate setting forth the Purchase Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Such certificate shall also set forth the kind and amount of stock
or other securities or property into which this Warrant shall be exercisable
following such adjustment.
3. Fractional Shares. The Company shall not be required upon the exercise
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of this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per share of Common
Stock, as determined pursuant to subsection 1(b) above.
4. Requirements for Transfer.
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(a) This Warrant, the Warrant Shares and any shares of Common Stock
issued upon conversion of the Warrant Shares or of this Warrant (collectively,
the "Securities") shall not be sold or transferred unless either (i) they first
shall have been registered under the Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
(b) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such securities are registered
under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act, upon
compliance with all requirements of the transfer agent for such shares.
5. No Impairment. The Company will not, by amendment of its charter or
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through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but
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will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holder of this Warrant against impairment.
6. Notices of Record Date, etc. In case:
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(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or
(b) any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity), or any transfer of all or substantially
all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company will mail or
cause to be mailed to the Registered Holder of this Warrant at its last known
address as shown on the records of the Company a notice specifying, as the case
may be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice.
7. Reservation of Stock. The Company will at all times reserve and keep
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available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
8. Exchange of Warrants. Upon the surrender by the Registered Holder of
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any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section 4
hereof, issue and deliver to or upon the order of such Holder, at the Company's
expense, a new Warrant or Warrants of like tenor, in the name of such Registered
Holder or as such Registered Holder (upon payment by such Registered Holder of
any applicable transfer taxes) may direct, calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock called for on the face
or faces of the Warrant or Warrants so surrendered.
9. Replacement of Warrants. Upon receipt of evidence reasonably
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satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft
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or destruction) upon delivery of an indemnity agreement (with surety if
reasonably required) in an amount reasonably satisfactory to the Company, or (in
the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
10. Transfers, etc.
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(a) The Company will maintain a register containing the names and
addresses of the Registered Holders of this Warrant. Any Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
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hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when
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this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
11. Mailing of Notices, etc. All notices and other communications from the
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Company to the Registered Holder of this Warrant shall be mailed by first-class
certified or registered mail, postage prepaid to the address furnished to the
Company in writing by the last Registered Holder of this Warrant who shall have
furnished an address to the Company in writing. All notices and other
communications from the Registered Holder of this Warrant or in connection
herewith to the Company shall be mailed by first class certified or registered
mail, postage prepaid to the Company at its principal office set forth below.
If the Company should at any time change its facsimile number or the location of
its principal office to a place other than as set forth below, it shall give
prompt written notice to the Registered Holder of this Warrant and thereafter
all references in this Warrant to the Company's facsimile number and the
location of its principal office at the particular time shall be as so specified
in such notice.
12. No Rights as Stockholder. Until the exercise of this Warrant, the
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Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
13. Change or Waiver. Any term of this Warrant may be changed or waived
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only by an instrument in writing signed by the party against which enforcement
is sought.
14. Headings. The headings in this Warrant are for purposes of reference
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only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
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15. Governing Law. This Warrant will be governed by and construed in
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accordance with the laws of the State of Delaware.
THE IXATA GROUP, INC.
8989 Rio San Diego Drive, Suite 160
San Diego, CA 92108
By: ________________________________
Name:
Title:
ATTEST:
_________________________
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EXHIBIT I
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PURCHASE FORM
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To:_________________ Dated:______________
The undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ), hereby irrevocably (check one) ___ (i) elects to purchase _____ shares
of the _________ Stock covered by such Warrant and herewith makes payment of
$____________, representing the full purchase price for such shares at the price
per share provided for in such Warrant, or __ (ii) authorizes the Company to
convert ______________ of the shares of the _________ Stock covered hereby into
the number of shares of Common Stock issuable pursuant to subsection 1(b) of the
Warrant.
Signature:_________________________
Address:__________________________
__________________________
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EXHIBIT II
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ASSIGNMENT FORM
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FOR VALUE RECEIVED, ________________________________________
hereby sells, assigns and transfers all of the rights of the undersigned under
the attached Warrant (No. ) with respect to the number of shares of stock
covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
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Dated:_______________________
Signature:____________________
Dated:_______________________
Witness:_____________________
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