EXHIBIT 10.6
WARRANT
WARRANT NO. 2
-----
THIS WARRANT OR THE SHARES ISSUABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THIS WARRANT, OR THE SHARES ISSUABLE HEREUNDER, MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR THE AVAILABILITY OF
AN EXEMPTION FROM REGISTRATION THEREUNDER.
EXTREME NETWORKS, INC.
WARRANT TO PURCHASE COMMON STOCK
Void after April 3, 2002
This certifies that, for value received, 3Com Corporation or
registered assigns ("Holder") is entitled, subject to the terms set forth below,
to purchase from Extreme Networks, Inc. (the "Company"), a Delaware corporation,
1,500,000 shares (such number of shares being referred to herein as the
"Original Amount") of the Common Stock of the Company (the "Common Stock"), as
constituted on the date hereof (the "Warrant Issue Date"), upon surrender
hereof, at the principal office of the Company referred to below, with the
notice of exercise form attached hereto duly executed, and simultaneous payment
therefor in lawful money of the United States or otherwise as hereinafter
provided, at the Exercise Price as set forth in Section 2 below. The Original
Amount, character and Exercise Price of such shares of Common Stock are subject
to adjustment as provided below. The term "Warrant" as used herein shall include
this Warrant, and any warrants delivered in substitution or exchange therefor as
provided herein.
1. Term of Warrant.
---------------
(a) Subject to the terms and conditions set forth herein and
compliance with any applicable regulatory requirements, this Warrant shall be
exercisable, in whole or in part, at any time during the term commencing on
April 3, 2000 and ending at 5:00 p.m., Pacific standard time, on April 3, 2002
(the "Expiration Date"), and, except as otherwise provided herein, shall be void
thereafter. This Warrant shall expire earlier upon the closing of an event in
which more than fifty percent (50%) of the Company's assets or capital stock is
acquired by or merged into another corporation that is not under direct or
indirect control of the persons who are the shareholders of the Company
immediately prior to such acquisition or merger, provided that Holder is given
at least 20 days prior written notice of such acquisition or merger in which to
exercise this Warrant in advance of its expiration.
(b) In the event that the Expiration Date of this Warrant
falls on a day which is not a Business Day, the Expiration Date shall be
adjusted to the Business Day immediately following such Expiration Date. As used
herein, the term "Business Day" means each day other
than a Saturday, Sunday or other day on which banks in the location of the
principal office of the Company are legally authorized to close.
2. Exercise Price. The Exercise Price at which this Warrant may be
--------------
exercised shall be $79.00 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof (the "Exercise Price").
3. Exercise of Warrant.
-------------------
(a) The purchase rights represented by this Warrant are exercisable
by the Holder in whole or in part subject to compliance with applicable
regulatory requirements, at any time and from time to time, during the term
hereof as described in Section 1 above, by the surrender of this Warrant and the
Notice of Exercise annexed hereto duly completed and executed on behalf of the
Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company), upon payment (i) in cash or
by check acceptable to the Company, (ii) by cancellation by the Holder of
indebtedness of the Company to the Holder, or (iii) by a combination of (i) and
(ii), of an amount equal to the then applicable Exercise Price per share
multiplied by the number of shares then being purchased. For so long as the
Company remains a publicly listed company, the Holder may pay the Exercise Price
of the Warrant (i) by surrendering to the Company shares of the Company's Common
Stock having a value equal to the Exercise Price of the Warrant being exercised
or (ii) by directing the Company to apply toward payment of the Exercise Price
from the number of shares of the Common Stock for which the Warrant is being
exercised, shares of the Common Stock having a value equal to the Exercise Price
of the Warrant being exercised. For purposes of this Section 3, the value of
each share of Common Stock shall be the average of the daily closing prices of
the Common Stock for the five consecutive Trading Days ending on the Trading Day
preceding the date of such exercise. As used herein the term "Trading Days" with
respect to Common Stock means (i) if the Common Stock is quoted on the NASDAQ
Stock Markets, Inc. any similar system of automated dissemination of quotations
of securities prices, days on which trades may be made on such system or (ii) if
the Common Stock is listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is open for business.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company, at its expense, shall issue and deliver to the person
or persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company, at its expense, will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
-2-
4. Fractional Shares. No fractional shares will be issued in connection
-----------------
with any exercise of this Warrant, and the number of shares to which the Holder
is entitled upon exercise of this Warrant shall be rounded down to the nearest
whole number.
5. Replacement of Warrant. On receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. No Rights as Stockholder. Subject to Sections 9 and 11 of this
------------------------
Warrant, the Holder shall not be entitled to vote or receive dividends pursuant
to this Warrant or be deemed the holder of Common Stock pursuant to this
Warrant, nor shall anything contained herein be construed to confer upon the
Holder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, or change of stock to no par
value, consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised as provided herein.
7. Transfer of Warrant. As this warrant is issued in furtherance of the
-------------------
relationship between the Company and the initial Holder, this warrant may not be
transferred without the written approval of the Company, which consent may be
withheld for any reason.
(a) The Company will maintain a register (the "Warrant Register")
containing the names and addresses of the Holder or Holders. Any Holder of this
Warrant or any portion thereof may change his address as shown on the Warrant
Register by written notice to the Company requesting such change. Any notice or
written communication required or permitted to be given to the Holder may be
delivered or given by mail to such Holder as shown on the Warrant Register and
at the address shown on the Warrant Register. Until this Warrant is transferred
on the Warrant Register of the Company, the Company may treat the Holder as
shown on the Warrant Register as the absolute owner of this Warrant for all
purposes, notwithstanding any notice to the contrary.
(b) The Company may, by written notice to the Holder, appoint an
agent for the purpose of maintaining the Warrant Register referred to in Section
7(a) above, issuing the Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging this Warrant, replacing this Warrant, or
any or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or replacement, as the case may be, shall be made at the office of
such agent.
(c) This Warrant may not be transferred or assigned in whole or in
part without compliance with applicable federal and state securities laws by the
transferor and the transferee. Subject to the provisions of this Warrant with
respect to compliance with the Securities Act of 1933, as amended (the "Act"),
title to this Warrant may be transferred by
-3-
endorsement (by the Holder executing the Assignment Form annexed hereto) and
delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery.
(d) On surrender of this Warrant for exchange, properly endorsed on
the Assignment Form and subject to the provisions of this Warrant with respect
to compliance with the Act and with the limitations on assignments and transfers
contained in this Section 7, the Company at its expense shall issue to or on the
order of the Holder a new warrant or warrants of like tenor, in the name of the
Holder or as the Holder (on payment by the Holder of any applicable transfer
taxes) may direct, for the number of shares issuable upon exercise hereof.
(e) The Holder of this Warrant, by acceptance hereof, acknowledges
that the Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock to be issued upon exercise hereof except in compliance
with the registration requirements of the Act, subject, nevertheless, to the
disposition of the Holder's property being at all times within its control.
(f) This Warrant and all shares of Common Stock issued upon exercise
hereof (unless registered under the Act) shall be stamped or imprinted with a
legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION THEREUNDER.
8. Reservation of Stock; Stock Fully Paid. The Company covenants that
--------------------------------------
during the term 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 and, from
time to time, will take all steps necessary to amend its Certificates of
Incorporation (the "Certificates") to provide sufficient reserves of shares of
Common Stock issuable upon exercise of the Warrant and will refrain from
effecting any amendment to the Certificates which in any manner would affect the
rights or privileges of the holders of its Common Stock. The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant, upon exercise of the rights represented by this
Warrant and payment of the Exercise Price, all as set forth herein, will be duly
authorized, validly issued, fully paid and nonassessable, and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously). 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.
9. Notices.
-------
-4-
(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
issue a certificate signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by first-
class mail, postage prepaid) to the Holder of this Warrant.
(b) In case: (i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon the
exercise of this Warrant) for the purpose of entitling them to receive any
dividend or other distribution, or 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
(ii) of any capital reorganization of the Company, any stock
split or subdivision, or reverse stock split or combination, or any similar
event involving the Common Stock, any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into another
corporation, or any sale, transfer or other conveyance of all or substantially
all of the assets of the Company to another corporation, or
(iii) of any voluntary 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 Holder or Holders a notice specifying, as the case may be, (A) 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 (B) the date on which a record is to be taken for
determining stockholders entitled to vote upon such reorganization,
reclassification, consolidation, merger, conveyance, 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 stock or securities at the time
receivable 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, conveyance, dissolution, liquidation or winding-up. Such
notice shall be mailed at least 10 days prior to the date therein specified.
(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery and (ii) in the case of mailing, on the third business day following
the date of such mailing.
10. Amendments.
----------
(a) This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
-5-
(b) No waivers of, or exceptions to, any term, condition or provision
of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
11. Adjustments.
-----------
(a) The Exercise Price and the number of shares purchasable hereunder
shall be subject to adjustment from time to time as follows:
(i) The Exercise Price shall be adjusted from time to time in
the case of any stock split, subdivision of the number of shares of the Common
Stock or similar event involving Common Stock (a "Split") or any reverse stock
split, combination or similar event involving the Common Stock (a "Combination")
and, accordingly, the Exercise Price shall be proportionately decreased in the
case of a Split or increased in the case of a Combination, as of the close of
business on the date the Split or Combination becomes effective, computed to the
nearest cent.
(ii) In case of any reclassification or change of outstanding
shares of Common Stock (except a split or combination, or a change in par value,
or a change from par value to no par value, or a change from no par value to par
value), or in case of any consolidation or merger to which the Company is a
party (other than a consolidation or merger that results in the termination of
this Warrant under Section 1 or in which the Company is the surviving
corporation and which does not result in any reclassification of or change in
the outstanding Common Stock of the Company) or any sale, transfer or other
conveyance of all or substantially all of the Company's assets, the Company, or
its successor, as the case may be, shall assume, by written instrument executed
and delivered to the registered holder of this Warrant at such Holder's address
shown on the registration books of the Company the obligation to deliver to the
Holder of this Warrant, upon due exercise thereof, the kind and amount of stock
and other securities and property receivable upon such reclassification, change,
consolidation, merger, sale, transfer or conveyance by a Holder of the number of
shares which would have been issued to such Holder had this Warrant been
exercised immediately prior thereto.
As evidence of the kind and amount of stock or other securities
or property which shall be issuable upon the exercise of this Warrant after any
such reclassification, change, consolidation, merger, sale, transfer or
conveyance, the Company shall maintain in its records at its principal office a
certificate of any firm of independent public accountants (who may be the
regular auditors retained by the Company) with respect thereto.
The provisions of this clause (ii) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales, transfers
or conveyances.
Upon any adjustment of the Exercise Price herein above provided
for, the number of shares issuable upon exercise of this Warrant shall be
changed to the number of shares calculated to the next highest whole share
obtained by dividing (A) the aggregate Exercise Price payable for the purchase
of all shares issuable upon exercise prior to such adjustment by (B) the
Exercise Price in effect immediately after such adjustment.
-6-
(iii) Whenever the Exercise Price or the number of shares
purchasable upon the exercise of this Warrant is adjusted as herein provided,
the Company shall:
(A) forthwith place on file at its office a certificate
signed by the chief financial officer of the Company, showing in appropriate
detail the facts requiring such adjustment, the computation thereof, the
Exercise Price after such adjustment, and the number of shares purchasable upon
the exercise of this Warrant after such adjustment with respect to each share
originally purchasable upon exercise hereof, and shall exhibit the same from
time to time to any holder of this Warrant desiring an inspection thereof, and
(B) within ten (10) days thereafter cause a notice to be
mailed to the Holder hereof at its address shown in the registration books of
the Company stating that such adjustment has been effected and the adjusted
Exercise Price and the number of shares purchasable as aforesaid.
(iv) Irrespective of any adjustments in the Exercise Price or
the number of shares or the number or kind of other securities purchasable upon
exercise of this Warrant, this Warrant or any Warrant thereafter issued may
continue to express the same price and number and kind of shares as are stated
in the Warrants initially issued by the Company.
(b) In the event that the Company (i) issues as a dividend or other
similar distribution (an "Extraordinary Dividend") on all of its then
outstanding Common Stock, (A) securities of the Company of a class other than
Common Stock, (B) rights, warrants or options (individually, a "Right" and
collectively, the "Rights") to acquire any securities of the Company (including
Common Stock) or (C) evidences of its indebtedness or assets (any securities
(other than Rights) issued as an Extraordinary Dividend or issued upon exercise
of any Rights issued as an Extraordinary Dividend shall be referred to as
"Dividend Securities"):
(x) this Warrant shall thereafter be exercisable for (1) the
Original Amount of shares of Common Stock (subject to adjustment as herein
provided), (2) such Dividend Securities and Rights as would theretofore have
been issued in respect of such shares (adjusted as herein provided) had such
shares been outstanding at the time of such Extraordinary Dividend; and
(y) any Right issued as an Extraordinary Dividend shall (1)
expire upon the later of (a) the original expiration date of such Right or (b)
the 180th day following the exercise of this Warrant, and (2) be exercisable for
the Dividend Securities issuable upon exercise of such Right.
(c) In the event that at any time while this Warrant is outstanding,
the Company shall offer to sell to all of the holders of Common Stock as a
class, rights or options to purchase Common Stock or rights or options to
purchase any stock or securities convertible into or exchangeable for Common
Stock (such exchangeable or convertible stock or securities being herein called
"Convertible Securities"), whether or not such rights or options are immediately
exercisable, and the price per share for which Common Stock is issuable upon the
exercise of such rights or options or upon conversion or exchange of such
Convertible Securities (determined by dividing (i) the total amount received or
receivable by the Company upon
-7-
issuance and sale of such rights or options, plus the aggregate amount of
additional consideration payable to the Company upon the exercise of all such
rights or options, plus, in the case of rights or options which relate to
Convertible Securities, the aggregate amount of additional consideration, if
any, payable upon the conversion or exchange of all such Convertible Securities,
by (ii) the total maximum number of shares of Common Stock issuable upon the
exercise of all such rights or options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of all such rights or
options) shall be less than the Exercise Price in effect immediately prior to
the initial sale of any such rights or options, the Company shall offer to sell
to the Holder, at the price and upon the terms at which such rights or options
are offered to holders of its Common Stock, such number of such rights or
options as the Holder would have been entitled to purchase had the Holder
exercised this Warrant immediately prior to the commencement of the offering of
such rights or options.
(d) If any event occurs as to which in the opinion of the Board of
Directors of the Company the other provisions of this Section 11 are not
strictly applicable or if strictly applicable would not adequately protect from
dilution the exercise rights of the Holder in accordance with the intent and
principles of such provisions, then the Board of Directors of the Company shall
make an equitable adjustment in the application of such provisions, in
accordance with such intent and principles of such provisions, so as to protect
such exercise rights as aforesaid, but in no event shall such adjustment have
the effect of increasing the Exercise Price.
12. Taxes. The issue of any stock or other certificate upon the exercise
-----
of this Warrant shall be made without charge to the Holder for any documentary,
stamp or similar tax in respect of the issue of such stock or certificate.
13. Valid Issuance. Company represents to Holder that this Warrant and the
--------------
shares of Common Stock issuable upon the exercise of this Warrant have been duly
authorized by all necessary corporate actions, this Warrant has been duly
executed and delivered and constitutes a legally binding agreement of the
Company enforceable in accordance with the terms hereof, the Company has
reserved out of its authorized and unissued shares of Common Stock a number of
shares sufficient to provide for the exercise of the rights represented by this
Warrant, and the shares of Common Stock issuable upon exercise of this Warrant,
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable.
14. Registration Rights. The Company hereby undertakes to use its best
-------------------
efforts to grant "piggy back" registration rights to the Holder, entitling the
Holder to include in a registration statement filed by the Company with the
Securities Exchange Commission the shares issuable upon exercise of this
Warrant. Such rights shall be on the same terms as certain existing holders of
the Company's common stock held pursuant to the Company's registration rights
agreement with its investors, and may require amendment of such agreement, which
amendment the Company will seek to obtain immediately following the issuance of
this Warrant.
15. Governing Law. This Warrant shall be governed by, construed, and
-------------
enforced in accordance with the laws of the State of Delaware without reference
to its principles of conflicts of law.
-8-
IN WITNESS WHEREOF, Extreme Networks, Inc. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated as of: April 3, 2000
EXTREME NETWORKS, INC.
By:_____________________________
-9-
NOTICE OF EXERCISE
To: Extreme Networks, Inc.
(1) The undersigned hereby elects to purchase ______ shares of Common
Stock of Extreme Networks, Inc., pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price for such shares in full.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
________________________________
(Name)
________________________________
(Address)
(3) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other name as is
specified below:
________________________________
(Name)
____________________ ___________________________________
(Date) (Signature)
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint Attorney _____________ to
make such transfer on the books of Extreme Networks, Inc., maintained for the
purpose, with full power of substitution in the premises.
Dated:__________________
________________________________
Signature of Holder
