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EXHIBIT 10.5
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE PURSUANT TO IT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL (WHICH
MAY BE COUNSEL FOR THE COMPANY) REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.
AUSPEX SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
1. Number and Price of Shares Subject to Warrant. Subject to the terms
and conditions set forth herein, Baruch and Xxxxxxxx Xxxxxxx (the "HOLDERS"),
are entitled to purchase from Auspex Systems, Inc., a Delaware corporation (the
"COMPANY"), at any time after the date hereof and on or before the date of
termination of this Warrant provided for in Section 10 hereof, up to 531,048
shares (which number of shares is subject to adjustment and certain conditions
as described below) of fully paid and nonassessable Common Stock of the Company
(the "SHARES") upon surrender hereof at the principal office of the Company, and
upon payment of the purchase price at said office in cash or by check. Subject
to adjustment as hereinafter provided, the purchase price of one share of Common
Stock (or such securities as may be substituted for one share of Common Stock
pursuant to the provisions hereinafter set forth) shall be $7.9625. The purchase
price of one share of Common Stock (or such securities as may be substituted for
one share of Common Stock pursuant to the provisions hereinafter set forth)
payable from time to time upon the exercise of this Warrant (whether such price
be the price specified above or an adjusted price determined as hereinafter
provided) is referred to herein as the "WARRANT PRICE."
2. Adjustment of Warrant Price and Number of Shares. The number and kind
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time and the Company agrees to provide notice upon the
happening of certain events as follows:
(a) Adjustment for Dividends in Stock. In case at any time or
from time to time on or after the date hereof, the holders of the Common Stock
of the Company (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) shall have received, or, on or
after the record date fixed for the determination of eligible stockholders,
shall have become entitled to receive, without payment therefor, other or
additional securities or other property of the Company by way of dividend or
distribution, then and in each case, Holders shall, upon the exercise hereof, 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 such other or additional securities or other property of
the Company which Holders would hold on the date of such exercise had it been
the Holders of record of such Common Stock on the date hereof and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and/or all other additional securities or
other property receivable by it as aforesaid during such period, giving effect
to all adjustments called for during such period by this paragraph (a) and
paragraphs (b) and (c) of this Section 2.
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(b) Adjustment for Reclassification or Reorganization. In case
of any reclassification or change of the outstanding Common Stock of the Company
or of any reorganization of the Company on or after the date hereof (other than
a merger or acquisition of the Company described in Section 10), then and in
each such case the Company shall give Holders at least ten (10) days notice of
the proposed effective date of such transaction, and Holders, upon the exercise
hereof at any time after the consummation of such reclassification, change or
reorganization, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which Holders would
have been entitled upon such consummation if Holders had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
paragraphs (a), (b) and (c); in each such case, the terms of this Section 2
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
(c) Stock Splits and Reverse Stock Splits. If at any time on or
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of the Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
3. No Fractional Shares. No fractional shares of Common Stock or any
other security will be issued in connection with any exercise or conversion
hereunder. In lieu of any fractional shares which would otherwise be issuable,
the Company shall pay cash equal to the product of such fraction multiplied by
the fair market value of one share of such security on the date of exercise, as
determined in good faith by the Company's Board of Directors.
4. No Shareholders Rights. This Warrant as such shall not entitle
Holders to any of the rights of a stockholder of the Company.
5. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
6. Exercise of Warrant.
(a) Manner of Exercise. This Warrant may be exercised, in whole
or in part, by Holders by the surrender of this Warrant (with the notice of
exercise form attached hereto as Attachment A and the Investment Representation
Statement attached hereto as Attachment C duly executed) at the principal office
of the Company, accompanied by payment in full of the purchase price of the
Shares purchased thereby, as described above.
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(b) Right to Convert Warrant. This Warrant may be converted into
Shares in whole or in part, by Holders by the surrender of this Warrant (with
the notice of conversion form attached hereto as Attachment B and the Investment
Representation Statement attached hereto as Attachment C duly executed) at the
principal office of the Company. Upon conversion of this Warrant, Holders shall
be entitled to receive that number of Shares of the Company equal to (x) the
number of shares of Common Stock specified by Holders in its Notice of
Conversion up to the maximum number of shares of Common Stock subject to this
Warrant (the "SPECIFIED NUMBER") less (y) the number of shares of Common Stock
equal to the quotient obtained by dividing (A) the product of the Specified
Number and the then existing Warrant Price by (B) the Fair Market Value, as
defined below.
"FAIR MARKET VALUE" of a Share shall mean the fair value as determined
in good faith by the Company's Board of Directors; provided, however, that where
there exists a public market for the Company's Shares at the time of Holders'
exercise of this conversion right, the Fair Market Value per Share shall be the
average of the closing bid and asked prices of the Shares quoted in the
Over-The-Counter Market Summary or the last reported sale price of the Common
Stock or the closing price quoted on the Nasdaq National Market or on any
exchange on which the Shares are listed, whichever is applicable, as published
in The Wall Street Journal for the five (5) trading days prior to the date of
conversion.
(c) Issuance of Shares. This Warrant shall be deemed to have
been exercised or converted immediately prior to the close of business on the
date of its surrender for exercise or conversion in accordance with Section 6(a)
or 6(b), and the person entitled to receive the Shares or other securities
issuable upon such exercise shall be treated for all purposes as the Holders of
record of such securities as of the close of business on such date. As promptly
as practicable and in any event within fifteen (15) days after such date, the
Company shall issue and deliver to the person or persons entitled to receive the
same a certificate or certificates for the number of full shares of Common Stock
or other security issuable upon such exercise, together with cash in lieu of any
fraction of a share as provided above, and a Warrant in like tenor as this
Warrant to purchase the number of Shares in respect of which this Warrant shall
not have been exercised, converted or waived.
7. Certificate of Adjustment. Whenever the Warrant Price or the number
or type of securities issuable upon exercise of this Warrant is adjusted, as
herein provided, the Company shall promptly deliver to Holders a certificate of
an officer of the Company setting forth the nature of such adjustment and a
brief statement of the facts requiring such adjustment.
8. Transfer of Warrant. This Warrant may not be transferred by Holders
without the written consent of the Company, which consent will not be
unreasonably withheld. Any such transfer will require an opinion of counsel
reasonably acceptable the Company stating that such transfer is exempt from the
registration requirements of the Securities Act of 1933. No such transfer shall
be effective as against the Company until this Warrant shall have been
surrendered to the Company along with transfer instructions duly executed by
Holders. Within 15 days of the fulfillment of the foregoing requirements of this
Section 8, the Company will issue to the transferee of this Warrant a new
Warrant in like tenor for such number of Shares or other securities as this
Warrant is then exercisable.
9. Restrictive Legend. Each certificate representing (i) the Shares, and
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization,
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merger, consolidation or similar event, shall be stamped or otherwise imprinted
with legends in the following form (in addition to any legend required under
applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"). SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY)
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT."
10. Termination. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate upon the earliest of (a) September 27, 2004,
(b) the sale of all or substantially all of the assets of the Company, or (c)
the acquisition of the Company by means of merger or consolidation resulting in
the exchange of the outstanding shares of the Company for securities or
consideration issued, or caused to be issued, by the acquiring corporation or
its subsidiary (other than an acquisition primarily for the purpose of changing
the state of domicile of the Company).
11. Miscellaneous. This Warrant shall be governed by the laws of the
State of Delaware. The headings in this Warrant are for purposes of convenience
of reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the Company and
Holders. All notices and other communications from the Company to Holders shall
be delivered personally or mailed by first class mail, postage prepaid, to the
address furnished to the Company in writing by Holders who shall have furnished
an address to the Company in writing, and if mailed shall be deemed given five
days after deposit in the U.S. Mail.
ISSUED this _______ day of ______________ 2000.
Auspex Systems, Inc.
a Delaware corporation
/s/ XXXXX X. XXXXXXX
-------------------------------------------
By:
Title: CFO
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ATTACHMENT A
NOTICE OF EXERCISE
TO: AUSPEX SYSTEMS, INC.
1. The undersigned hereby elects to purchase ____________ shares of
Common Stock of Auspex Systems, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares
of stock in the name of the undersigned or in such other name as is specified
below:
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(Name)
-------------------------------------
(Address)
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3. The undersigned represents that the aforesaid shares of stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
In support thereof, the undersigned has executed an Investment Representation
Statement included herewith.
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(Warrantholders signature)
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(Print name and title of
signatory if warrantholders is
not an individual)
-------------------------------------
(Date)
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ATTACHMENT B
NOTICE OF CONVERSION
TO: AUSPEX SYSTEMS, INC.
1. The undersigned hereby elects to convert its right to purchase
__________ shares of Common Stock pursuant to the attached Warrant into such
number of shares of Common Stock of Auspex Systems, Inc. as is determined
pursuant to Section 6(b) of such Warrant, which conversion shall be effected
pursuant to the terms of the attached Warrant.
2. Please issue a certificate or certificates representing said shares
of stock in the name of the undersigned or in such other name as is specified
below:
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(Name)
-------------------------------------
(Address)
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3. The undersigned represents that the aforesaid shares of stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
In support thereof, the undersigned has executed an Investment Representation
Statement included herewith.
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(Warrantholders signature)
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(Print name and title of
signatory if warrantholders is
not an individual)
-------------------------------------
(Date)
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ATTACHMENT C
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
COMPANY : AUSPEX SYSTEMS, INC.
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed securities (the
"SECURITIES"), I, the Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933 ("SECURITIES ACT").
(b) I understand that the Securities will be issued with the
restrictive legends described in Section 9 of the Warrant.
(c) I understand that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission ("SEC"), the statutory basis
for such exemption may be unavailable if my representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(d) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, I understand
that the Company is under no obligation to register the Securities. In addition,
I understand that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
(e) I am aware of the provisions of Rule 144, promulgated under
the Securities Act, which, in substance, permits limited public resale of
"RESTRICTED SECURITIES" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions. I understand that there can be no
assurance that the such conditions will ever be satisfied.
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(f) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale.
(g) I further understand that in the event all of the
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
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(purchaser signature)
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(Print name and title of
signatory if purchaser is not
an individual)
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(Date)
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