Exhibit 99.5
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION UNDER SUCH ACT AND APPLICABLE LAWS, OR IN A TRANSACTION WHICH,
IN THE OPINION OF COUNSEL TO THE HOLDERS OF THIS WARRANT (WHICH COUNSEL SHALL
BE SATISFACTORY TO THE COMPANY), QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE
SECURITIES ACT AND THE RULES PROMULGATED BY THE SECURITIES AND EXCHANGE
COMMISSION THEREUNDER.
No. W-2 September 25, 1998
$10.50 WARRANT TO PURCHASE COMMON STOCK
OF
ODS NETWORKS, INC.
This certifies that, for value received, SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION, a Delaware corporation ("SAIC"), or registered
assigns (the "HOLDER"), during the term of this Warrant as set forth in
SECTION 1, is entitled to purchase from ODS NETWORKS, INC., a Delaware
corporation (the "COMPANY"), for value received, shares of the Common Stock
of the Company, $0.01 par value (the "COMMON STOCK"), in the amount set forth
in SECTION 2, upon surrender hereof, at the principal office of the Company
referred to below, with a duly executed Notice of Exercise in the form
attached, and simultaneous payment therefor in lawful money of the United
States, at the Exercise Price set forth in SECTION 3. The number, 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. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, at any time
or from time to time before 5:00 p.m., on September 25, 2000. After such
date, this Warrant shall be void.
2. NUMBER OF SHARES WHICH MAY BE PURCHASED. The total number of
shares of Common Stock purchasable pursuant to this Warrant is SEVEN HUNDRED
FIFTY THOUSAND (750,000).
3. EXERCISE PRICE. The purchase price per share for the Common Stock
purchased under this Warrant shall be TEN AND 50/100 DOLLARS ($10.50) the
"EXERCISE PRICE").
4. EXERCISE OF WARRANT.
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(1) METHOD OF EXERCISE. The purchase rights represented by this
Warrant are exercisable by the Holder in whole or in part, at any time, or
from time to time, during the term hereof as described in SECTION 1 above,
by the surrender of this Warrant and delivery of the Notice of Exercise
annexed hereto duly completed and executed on behalf of the Holder, at the
office of the Company, and upon payment equal to the product of the
Exercise Price multiplied by the number of shares designated by the Holder
in the Notice of Exercise in cash or by check payable to the Company.
(2) OTHER MATTERS. 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
issued 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 remaining number of shares for which this
Warrant may then be exercised.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
6. 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.
7. NO RIGHTS AS STOCKHOLDER. This Warrant shall not entitle its Holder
to any of the rights of a stockholder of the Company.
8. TRANSFER OF WARRANT.
(1) WARRANT REGISTER. 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
or her 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.
(2) TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT. This Warrant
may not be transferred or assigned in whole or in part without compliance
with all applicable federal and state securities laws by the transferor and
the transferee (including the delivery of investment representation letters
and legal opinions reasonably satisfactory to the Company). Subject to
compliance with the foregoing and the Securities Act of 1933, as amended
(the "ACT"), and applicable state securities laws, title to this Warrant
may be transferred by endorsement (by the
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Holder executing the Assignment Form annexed hereto) and delivery in the
same manner as a negotiable instrument transferable by endorsement and
delivery. The Holder or owner hereof by the taking hereof consents and
agrees that any person in possession of this Warrant properly endorsed
for transfer to such person (including endorsed in blank) is authorized
to represent himself as absolute owner hereof and is empowered to
transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives
and renounces all of his rights in this Warrant in favor of each such
bona fide purchaser, and each bona fide purchaser shall acquire absolute
title hereto and to all rights represented hereby.
(3) EXCHANGE OF WARRANT UPON A TRANSFER. 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 8, 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.
(4) COMPLIANCE WITH SECURITIES LAWS.
(1) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be
issued upon exercise hereof are being acquired solely for the
Holder's own account for investment, and 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 under
circumstances that will not result in a violation of the Act or any
state securities laws. Upon exercise of this Warrant, the Holder
shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of Common Stock so
purchased are being acquired for investment, and not with a view
toward distribution or resale in violation of applicable securities
laws.
(2) All shares of Common Stock issued upon exercise hereof
shall be stamped or imprinted with a legend in substantially the
following form (in addition to any legend required by state
securities laws and the Asset and Securities Purchase Agreement of
even date herewith):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL TO THE
HOLDERS OF THIS WARRANT (WHICH COUNSEL SHALL BE SATISFACTORY
TO THE COMPANY), QUALIFIES AS AN EXEMPT TRANSACTION UNDER
THE SECURITIES ACT AND THE RULES PROMULGATED BY THE
SECURITIES AND EXCHANGE COMMISSION THEREUNDER.
9. RESERVATION OF STOCK. 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 corporate charter to
provide sufficient reserves of shares of Common Stock issuable upon exercise
of the Warrant. The Company further covenants that all shares that may be
issued upon the exercise of this Warrant will be free from all taxes, liens
and charges except for restrictions on transfer and any taxes, liens and
charges imposed on the Holder unrelated to the Company's issuance of shares
upon exercise of the Warrant.
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10. NOTICES. All such notices, advices and communications hereunder
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.
11. AMENDMENTS. Any term of this Warrant may be amended with the
written consent of the Company and all of the Holders of this Warrant.
12. ADJUSTMENTS. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
(1) ADJUSTMENT FOR DIVIDENDS IN OTHER STOCK, PROPERTY, ETC.;
RECLASSIFICATION, ETC. In case at any time and from time to time while
this Warrant (or any Warrant issued in exchange or replacement hereof) is
outstanding and unexpired, the holders of Common Stock shall have received,
or (on or after the record date fixed for the determination of stockholders
eligible to receive) shall have become entitled to receive, without payment
therefor,
(1) other or additional stock or other securities or property
(other than cash) by way of dividend; or
(2) other or additional stock or other securities or
property by way of stock-split, spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock or Convertible Securities (as
defined in SECTION 12(d)) or any rights or options to acquire any of the
foregoing, adjustments in respect of which are provided for hereafter, then
and in each such case the Holder, upon the exercise hereof, shall be
entitled to receive the amount of stock and other securities and property
which such Holder would hold on the date of such exercise if on the
original issue date he had been the holder of record of the number of
shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the original issue date to and including
the date of such exercise, retained such shares and all such other or
additional stock and other securities and properties receivable by him as
aforesaid during such period, giving effect to all adjustments called for
during such period by this SECTION 12.
(2) ADJUSTMENTS FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In
case of any reorganization of the Company (or any other issuer of other
securities) at any time and from time to time while this Warrant (or any
Warrant issued in exchange or replacement hereof) is outstanding and
unexpired, or if the Company (or such other issuer) shall transfer all or
substantially all of its properties or assets to or consolidate with or
merge into any other person (corporate or otherwise), then and in each such
case the Holder, upon the exercise hereof, at any time after the
consummation of such reorganization, conveyance, consolidation or merger,
shall be entitled to receive, in lieu of the Common Stock (or other
securities) issuable upon such exercise prior to such consummation, the
stock and other securities or property (including cash) to which such
Holder would have been entitled upon such consummation if such Holder had
so exercised this Warrant immediately prior thereto, all subject to further
adjustments thereafter as provided in SECTION 12(a) and SECTION 12(c); in
each such case, the terms of this Warrant shall be applicable to the shares
of stock and other securities receivable upon the exercise of this Warrant
after such consummation and shall be binding upon the issuer thereof.
(3) ADJUSTMENT FOR ISSUE OR SALE OF COMMON STOCK AT LESS THAN FAIR
MARKET VALUE. In case at any time or from time to time while this Warrant
(or any Warrant issued in exchange or replacement hereof) is outstanding
and unexpired the Company shall issue or sell shares of its
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Common Stock (other than shares of Common Stock excepted from the
provisions of this SECTION 12(c) by SECTION 12(h) without consideration
or for a consideration per share less than the Fair Market Value (as
defined in SECTION 12(d)) in effect immediately prior to such issue or
sale, then and in each such case the Pro Forma Exercise Price (as
defined in SECTION 12(d)) shall be adjusted to reflect such issue or
sale; and the holder of this Warrant, upon the exercise hereof, shall be
entitled to receive the number of shares of Common Stock determined by
multiplying the number of shares of Common Stock which would otherwise
(but for the provisions of this SECTION 12(c) be issuable upon such
exercise by the fraction of which (i) the numerator is the Exercise
Price and (ii) the denominator is the Pro Forma Exercise Price, both as
in effect on the date of such exercise.
(4) DEFINITIONS, ETC. For purposes of this SECTION 12:
(1) The "PRO FORMA EXERCISE PRICE" per share of Common Stock,
which shall be adjusted and readjusted from time to time as
provided in this SECTION 12 (and, as so adjusted or readjusted,
shall remain in effect until a further adjustment or readjustment
thereof is required by this SECTION 12), shall (upon any such
adjustment or readjustment) be computed (to the nearest cent, a
half cent being considered a full cent) by dividing
(x) the sum of (i) the result obtained by multiplying the
number of shares of Common Stock of the Company outstanding
immediately prior to such issue or sale by the Pro Forma Exercise
Price in effect immediately prior to such issue or sale and
(ii) the consideration, if any, received by the Company upon such
issue or sale by
(y) the number of shares of Common Stock of the Company
outstanding immediately after such issue or sale,
PROVIDED THAT (i) prior to the first issue or sale referred to in
SECTION 12(c) the Pro Forma Exercise Price shall be the Exercise Price
in effect on the date of this Warrant and (ii) at no time shall the
Pro Forma Exercise Price exceed the Exercise Price then in effect.
(2) The term "CONVERTIBLE SECURITIES" shall mean any stock
(other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable for Common Stock.
(3) The consideration received by the Company for any issue
or sale of Common Stock shall include any consideration received
for shares of Common Stock referred to in SECTION 12(h), and shall,
(1) insofar as it consists of cash, be computed at the net
amount thereof received by the Company after deduction of any
expenses payable at the Company and any underwriting or
similar commissions, compensation or concessions paid or
allowed by the Company in connection with such issue or sale;
(2) insofar as it consists of assets other than cash, be
computed at the fair value thereof as determined in good faith
by the Board of Directors of the Company, but in no event at
more than the amount at which such tangible or intangible
assets are recorded on the books of the Company for accounting
purposes; and
(3) insofar as it is attributable to the issue or sale
of stock or other securities or other assets of the Company
other than Common Stock or Convertible
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Securities, be Company among such other stock, securities and
assets and Common Stock and Convertible Securities.
(4) The date of the issue or sale of Common Stock issuable
upon the exercise of any rights or options or the conversion or
exchange of any Convertible Securities shall be deemed to be the
date of issue or sale of such rights or options or such Convertible
Securities, or rights or options to subscribe for, purchase or
otherwise acquire such Convertible Securities; PROVIDED that if a
record of the holders of any class of securities shall be taken for
the purpose of entitling such holders to receive any dividend or
other distribution payable in, or any rights or options to
subscribe for, purchase or otherwise acquire, Common Stock or
Convertible Securities, the date of the issue or sale of any Common
Stock issuable in payment of any such dividend or other
distribution or upon the exercise of any such rights or options, or
upon the conversion or exchange of any Convertible Securities so
issuable, shall be deemed to be the date of such record.
(5) The term "FAIR MARKET VALUE" shall mean the value of the
Common Stock as determined by the Company's Board of Directors in
good faith; PROVIDED, HOWEVER, that where there exists a public
market for the Company's Common Stock, the Fair Market Value per
share shall be equal to the average of the closing bid and asked
prices of the Common Stock as quoted on the NASDAQ Small-Cap Market
or the closing price quoted on the Nasdaq National Market or on any
exchange on which the Common Stock is listed, whichever is
applicable, for the five (5) trading days prior to the date of
determination of Fair Market Value.
(5) ADJUSTMENTS FOR STOCK DIVIDENDS, ETC. In case the Company shall
declare any dividend or make any other distribution on any stock of the
Company of any class, payable in Common Stock or Convertible Securities,
such declaration or other distribution shall be deemed to be an issue or
sale, without consideration, of such Common Stock or Convertible
Securities, as the case may be, and the Pro Forma Exercise Price shall
thereupon be adjusted to reflect such issue or sale.
(6) ADJUSTMENTS FOR ISSUES, ETC. OF OPTIONS OR CONVERTIBLE
SECURITIES. In case the Company shall (a) grant any rights or options to
subscribe for, purchase or otherwise acquire Common Stock, or (b) issue or
sell any Convertible Securities, the price per share of Common Stock
issuable upon the exercise of such rights or options or the conversion or
exchange of such Convertible Securities shall be determined by dividing
(i) the total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or options or the issue or
sale of such Convertible Securities, plus the minimum aggregate amount of
additional consideration payable to the Company upon the exercise of such
rights or options or the conversion or exchange of such Convertible
Securities, by (ii) the maximum number of shares of Common Stock issuable
upon such exercise or conversion or exchange, all as the case may be. If
the price per share so determined is less than the Fair Market Value
immediately prior to the granting of such rights or options or the issue or
sale of such Convertible Securities, such granting or issue or sale shall
be deemed to be an issue or sale for cash of such maximum number of shares
of Common Stock at such price per share, and the Pro Forma Exercise Price
shall thereupon be adjusted to reflect (on the basis of such determination)
such issue or sale, provided that
(1) if such rights or options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any
increase in the amount of additional consideration payable to the
Company or decrease in the number of shares of Common
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Stock issuable upon such exercise or conversion or exchange (by
change of rate or otherwise), the Pro Forma Exercise Price shall,
upon each such increase or decrease becoming effective, be
readjusted to reflect such increase or decrease insofar as it
affects rights of acquisition, exchange or conversion which have
not theretofore expired, and
(2) upon the expiration of such rights or options or the
rights of conversion or exchange of such Convertible Securities, if
any thereof shall not have been exercised, the Pro Forma Exercise
Price shall, upon such expiration, be readjusted and shall
thereafter be such as it would have been had it been adjusted on
the basis that (x) the only shares of Common Stock so issued were
the shares of Common Stock issued or sold upon the exercise of such
rights or options or the rights of conversion or exchange of such
Convertible Securities and (y) such shares of Common Stock were
issued or sold for the consideration actually received by the
Company upon such exercise plus the consideration, if any, actually
received by the Company for the granting of all of such rights or
options, whether or not exercised, or for the issue or sale of all
such Convertible Securities which shall have been converted or
exchanged,
all as the case may be; and provided further that no such readjustment
shall have the effect of increasing the Pro Forma Exercise Price by an
amount in excess of the amount of the adjustment thereof initially made in
respect of the granting of such rights or options or the issue or sale of
such Convertible Securities. In case the Company shall grant any rights or
options to subscribe for, purchase or otherwise acquire Convertible
Securities, such Convertible Securities shall be deemed, for the purposes
of this SECTION 12(f), to have been issued or sold; and the total amount
received or receivable by the Company as consideration for such issue or
sale shall be computed (for the purposes of clause (i) of this SECTION
12(f), in determining the price per share of Common Stock issuable upon the
conversion or exchange of such Convertible Securities) and the Pro Forma
Exercise Price shall be adjusted and readjusted as provided above in this
SECTION 12(f) in the case of rights or options for the acquisition of
shares of Common Stock.
(7) DILUTION IN CASE OF OTHER SECURITIES. In case any other
securities shall be issued or sold, or shall become subject to issue upon
the conversion or exchange or any stock (or other securities) of the
Company (or any other issuer of other securities or any other person
referred to in SECTION 12(b) or to subscription, purchase or other
acquisition pursuant to any rights or options granted by the Company (or
such other issuer or person), for a consideration per share such as to
dilute the purchase rights evidenced by this Warrant, the computations,
adjustments and readjustments provided for in this SECTION 12 with respect
to the Pro Forma Exercise Price shall be made as nearly as possible in the
manner so provided and applied to determine the amount of other securities
from time to time receivable upon the exercise of the Warrant, so as to
protect the Holder of the Warrant against the effect of such dilution.
(8) EXCEPTED ISSUES. The following issues of Common Stock shall, for
the purposes of SECTION 12(c), be deemed not to be issues or sales of
Common Stock at less than the Fair Market Value, and no adjustment or
readjustment pursuant to this SECTION 12 in the Pro Forma Exercise Price
shall be made in respect thereof:
(1) the issuance of Common Stock (or other securities) upon
the exercise of this Warrant or the $8.00 Warrant issued to SAIC on
the date hereof;
(2) the issuance of Common Stock (or other securities) upon
the exercise of warrants, options, or convertible securities
outstanding on the date hereof; and
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(3) the issuance of Common Stock (and options therefor)
pursuant to employee stock option plans approved by the Company's
Board of Directors.
(9) NO DILUTION OR IMPAIRMENT. The Company will not, by amendment to
its certificate of incorporation or through any reorganization, sale of
assets, consolidation, merger, dissolution, issue or sale of securities, or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but 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 the Warrant against dilution or other
impairment. Without limiting the generality of the foregoing, the Company
(a) will not increase the par value of any shares of stock receivable upon
the exercise of the Warrant above the amount payable therefor upon such
exercise; (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of stock upon the full exercise of the Warrant as from
time to time outstanding; and (c) will not transfer all or substantially
all of its properties and assets to any other person (corporate or
otherwise), or consolidate with or merge into any other person or permit
any such person to consolidate with or merge into the Company (if the
Company is not the surviving person), unless such other person shall
expressly assume in writing and will be bound by all the terms of this
Warrant.
(10) CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment or
readjustment in the shares of Common Stock (or other securities) issuable
upon the exercise of the Warrant, the Company's Chief Financial Officer
will promptly compute such adjustment or readjustment in accordance with
the terms of the Warrant and prepare a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or to be received by the Company for any additional
shares of Common Stock issued or sold or deemed to have been issued or
sold, (b) the number of shares of Common Stock outstanding or deemed to be
outstanding and (c) the Pro Forma Exercise Price in effect immediately
prior to such issue or sale and as adjusted and readjusted (if required by
SECTION 12) on account thereof. The Company will forthwith mail a copy of
each such certificate to each Holder. Upon request, the Company will mail
to the Holder a certificate of the Company's Chief Financial Officer
containing a statement of the Pro Forma Exercise Price at the time in
effect and showing how it was calculated.
(11) NOTICES OF RECORD DATE, ETC. In the event of:
(1) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend (other than a cash dividend)
or other distribution, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right; or
(2) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any conveyance of all or substantially all the assets of
the Company to or consolidation or merger of the Company with or into
any other corporation; or
(3) any voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then and in each such event the Company will mail or cause to be mailed to
the Holder a notice specifying (i) the date on which any such record is to
be taken for the purpose of such dividend,
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distribution or right, and stating the amount and character of such
dividend, distribution or right; (ii) the date on which any such
reorganization, reclassification, conveyance, consolidation, merger,
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 other securities) shall be entitled to exchange their shares of
Common Stock (or other securities) for securities or other property
deliverable upon such reorganization, reclassification,
recapitalization, conveyance, consolidation, merger, dissolution,
liquidation, or winding up; and (iii) the amount and character of any
stock or other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or
grant is to be offered or made. Such notice shall be mailed at least 15
days prior to the date therein specified.
2. MISCELLANEOUS.
(1) SUCCESSORS AND ASSIGNS. This Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the successors of
the Company and the Holder and their respective permitted assigns. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant, and shall be enforceable by any
such Holder.
(2) HEADINGS. The headings of the Sections of this Warrant are for
the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
(3) CHOICE OF LAW. This Warrant and the performance or breach
thereof shall be governed by and interpreted as to substantive matters in
accordance with the applicable laws of the State of Delaware (excluding its
choice of law rules).
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated: September 25, 1998 The Company:
ODS NETWORKS, INC.
By: /s/ X. Xxxx Xxxxxx
-----------------------------------
Title: President
--------------------------------
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NOTICE OF EXERCISE
(1) The undersigned hereby elects to purchase ___________ shares of
Common Stock of ODS NETWORKS, INC., pursuant to the provisions of Section
4(a) of the attached Warrant, and tenders herewith payment of the purchase
price for such shares in full.
(2) In exercising this Warrant, the undersign hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for
investment, and that the undersigned will not offer, sell or otherwise
dispose of any such shares of Common Stock except in compliance with the
Securities Act of 1933, as amended, or any applicable state securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in the following name:
_______________________ .
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in the following name:
____________________ .
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
By:
-----------------------------
Title:
--------------------------
Date:
---------------------------
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ASSIGNMENT FORM
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 ____________________ to
make such transfer on the books of ODS Networks, Inc., maintained for the
purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will
not offer, sell or otherwise dispose of this Warrant or any shares of stock
to be issued upon exercise hereof except in compliance with the Securities
Act of 1933, as amended, or any state securities laws. Further, the Assignee
has acknowledge that upon exercise of this Warrant, the Assignee shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Printed Name of Holder:
----------------------------
Signature:
-----------------------------------------
Name of Authorized Representative,
if a legal entity:
--------------------------------
Title of Representative:
---------------------------
Date:
----------------------------------------------
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