EXHIBIT 4.7
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL)
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Series D Preferred Stock of
CHORUM TECHNOLOGIES INC.
Dated as of March 1, 2000 (the "Effective Date")
WHEREAS, CHORUM TECHNOLOGIES INC., a Delaware corporation (the "Company") has
entered into Equipment Schedule No. VL-5 and VL-6 dated as of March 1, 2000 to
Master Lease Agreement dated as of September 22, 1998, and related Summary
Equipment Schedules (collectively, the "Leases") with Comdisco, Inc., a Delaware
corporation (the 'Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder in consideration for such
Leases, the right to purchase shares of its Series D Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and delivering
such Leases and in consideration of mutual covenants and agreements contained
herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe to and purchase from the Company 77,088 fully paid and non-assessable
shares of the Company's Series D Preferred Stock ("Preferred Stock") at a
purchase price of $4.67 per share (the "Exercise Price"). The number and
purchase price of such shares are subject to adjustment as provided in Section 8
hereof.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant Agreement and
the right to purchase Preferred Stock as granted herein shall commence on the
Effective Date and shall be exercisable for a period of (i) seven (7) years or
(ii) three (3) years from the effective date of the Company's initial public
offering, whichever is shorter. Notwithstanding the term of this Warrant
Agreement fixed pursuant to preceding sentence, the right to purchase Preferred
Stock a granted herein shall expire, if not previously exercised, immediately
upon (i) a merger or consolidation of the Company with or into any other
corporation or corporations, unless the shareholders of the Company immediately
prior to any such transaction are holders of a majority of the voting securities
of the surviving corporation or acquiring corporation immediately thereafter and
hold such securities in substantially similar proportions as prior to such
transaction (and for purposes of this calculation equity securities which any
shareholder of the Company owned immediately prior to such merger or
consolidation as shareholder of another party to the transaction shall be
disregarded), or (ii) a sale or other transfer of all or substantially all of
the assets of the Company or any series of related transactions resulting in the
sale or other transfer of all or substantially all of the assets of the Company
("Termination Event").
The Company shall notify the Warrantholder if the Termination Event is proposed
no later than the date such notice is provided to the Company's stockholders of
such Termination Event. Such notice shall also contain such details of the
proposed Termination Event as are reasonable in the circumstances. If such
closing does not take place, the Company shall promptly notify the Warrantholder
that such proposed transaction has been terminated, and the Warrantholder may
rescind any exercise of its purchase rights promptly after such notice of
termination of the proposed transaction. In the event of such recission, this
Warrant Agreement shall continue to be exercisable on the same terms and
conditions contained herein.
If all of the Company's outstanding Preferred Stock is converted into shares of
Common Stock then this Warrant shall automatically become exercisable for that
number of shares of Common Stock equal to the number of shares of Common Stock
that would have been received if this Warrant had been exercised in full and the
shares of Preferred Stock received thereupon had been simultaneously converted
into shares of Common Stock immediately prior to such event, and the Exercise
Price shall be automatically adjusted to equal the amount obtained by dividing
(i) the aggregate Exercise Price of the shares of Preferred Stock for which this
Warrant was exercisable immediately prior to such conversion, by (ii) the number
of shares of Common Stock for which this Warrant is exercisable immediately
after such conversion.
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are exercisable by the
Warrantholder, in whole or in part, at any time, or from time to time, prior to
the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit I (the "Notice of Exercise"), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, and in no event later than twenty-one
(21) days thereafter, the Company shall issue to the Warrantholder a certificate
for the number of shares of
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Preferred Stock purchased and shall execute the acknowledgment of exercise in
the form attached hereto as Exhibit II (the "Acknowledgment of Exercise")
indicating the number of shares which remain subject to future purchases, if
any.
The Exercise Price may be paid at the Warrantholder's election either (i) by
cash or check, or (ii) by surrender of Warrants ("Net Issuance") as determined
below. If the Warrantholder elects the Net Issuance method, the Company will
issue Preferred Stock in accordance with the following formula:
X = Y(A-B)
------
A
Where: X = the number of shares of Preferred Stock to be issued to the
Warrantholder.
Y = the number of shares of Preferred Stock requested to be exercised under this
Warrant Agreement.
A = the fair market value of one (1) share of Preferred Stock at the time the
net issuance election is made.
B = the Exercise Price.
For purposes of the above calculation, current fair market value of Preferred
Stock shall mean with respect to each share of Preferred Stock:
(i) if the exercise is in connection with an initial public offering of the
Company's Common Stock, and if the Company's Registration Statement relating to
such public offering has been declared effective by the SEC, then the fair
market value per share shall be the product of (x) the initial "Price to Public"
specified in the final prospectus with respect to the offering and (y) the
number of shares of Common Stock into which each share of Preferred Stock is
convertible at the time of such exercise;
(ii) if this Warrant is exercised after, and not in connection with the
Company's initial public offering, and:
(a) if traded on a securities exchange, the fair market value shall be deemed
to be the average of the closing prices over a twenty-one (21) day period ending
three days before the day the current fair market value of the securities is
being determined ; or
(b) if actively traded over-the-counter, the fair market value shall be deemed
to be the average of the closing bid and asked prices quoted on the NASDAQ
system (or similar system) over the twenty-one (21) day period ending three days
before the day the current fair market value of the securities is being
determined;
(iii) if at any time the Common Stock is not listed on any securities exchange
or quoted in the
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NASDAQ System or the over-the-counter market, the current fair market value of
Preferred Stock shall be the product of (x) the highest price per share which
the Company could obtain from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by its Board of Directors and (y)
the number of shares of Common Stock into which each share of Preferred Stock is
convertible at the time of such exercise or such earlier time as all outstanding
share of the Company's Preferred Stock convert into shares of Common Stock;
unless the Company shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the surviving party, in which
case the fair market value of Preferred Stock shall be deemed to be the value
received by the holders of the Company's Preferred Stock on a common equivalent
basis pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall promptly
issue an amended Warrant Agreement representing the remaining number of shares
purchasable hereunder. All other terms and conditions of such amended Warrant
Agreement shall be identical to those contained herein, including, but not
limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) During the term of this Warrant Agreement, the Company will at all times
have authorized and reserved a sufficient number of shares of its Preferred
Stock to provide for the exercise of the rights to purchase Preferred Stock as
provided for herein.
(b) Registration or Listing. If any shares of Preferred Stock required to be
reserved hereunder require registration with or approval of any governmental
authority under any Federal or State law (other than any registration under the
Securities Act of 1933, as amended ("1933 Act"), as then in effect, or any
similar Federal statute then enforced, or any state securities law, required by
reason of any transfer involved in such conversion), or listing on any domestic
securities exchange, before such shares may be issued upon conversion, the
Company will, at its expense and as expeditiously as possible, use its best
efforts to cause such shares to be duly registered, listed or approved for
listing on such domestic securities exchange, as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be issued
upon the exercise of the Warrant, but in lieu of such fractional shares the
Company shall make a cash payment therefor upon the basis of the Exercise Price
then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting rights
or other rights as a shareholder of the Company prior to the exercise of the
Warrant.
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7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation whether or not the Company is the surviving corporation other than a
Termination Event, as defined in Section 2 hereof, or the sale of all or
substantially all of the Company's properties and assets to any other person
other than a Termination Event (hereinafter referred to as a "Merger Event"),
then, as a part of such Merger Event, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive, upon exercise of the
Warrant, the number of shares of preferred stock or other securities of the
successor corporation resulting from such Merger Event, equivalent in value to
that which would have been issuable if Warrantholder had exercised this Warrant
immediately prior to the Merger Event. In any such case, appropriate adjustment
(as determined in good faith by the Company's Board of Directors) shall be made
in the application of the provisions of this Warrant Agreement with respect to
the rights and interest of the Warrantholder after the Merger Event to the end
that the provisions of this Warrant Agreement (including adjustments of the
Exercise Price and number of shares of Preferred Stock purchasable) shall be
applicable to the greatest extent possible.
(b) Reclassification of Shares. If the Company at any time shall, by
combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the securities as to which purchase rights under this
Warrant Agreement exist into the same or a different number of securities of any
other class or classes, this Warrant Agreement shall thereafter represent the
right to acquire such number and kind of securities as would have been issuable
as the result of such change with respect to the securities which were subject
to the purchase rights under this Warrant Agreement immediately prior to such
combination, reclassification, exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall
combine or subdivide its Preferred Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) Stock Dividends. If the Company at any time shall pay a dividend payable
in, or make any other distribution (except any distribution specifically
provided for in the foregoing subsections (a) or (b)) of the Company's Preferred
Stock, then the Exercise Price shall be adjusted, from and after the record date
of such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction (i)
the numerator of which shall be the total number of all shares of the Company's
Preferred Stock outstanding immediately prior to such dividend or distribution,
and (ii) the denominator of which
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shall be the total number of all shares of the Company's Preferred Stock
outstanding immediately after such dividend or distribution. The Warrantholder
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Preferred Stock (calculated to the
nearest whole share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Preferred Stock
issuable upon the exercise hereof immediately prior to such adjustment and
dividing the product thereof by the Exercise Price resulting from such
adjustment.
(e) Antidilution Rights. Antidilution rights applicable to the Preferred Stock
purchasable hereunder are as set forth in the Company's Certificate of
Incorporation, as amended through the Effective Date, a true and complete copy
of which is attached hereto as Exhibit IV (the "Charter"). The Company shall
promptly provide the Warrantholder with any restatement, amendment, modification
or waiver of the Charter. The Preferred Stock purchasable hereunder shall have
the benefit of the same antidilution rights applicable to such Preferred Stock
as designated in the Company's Charter, and the Company shall provide
Warrantholder with all notices and information at the time and to the extent it
is required to do so to the holders of the Preferred Stock.
(f) Notice of Adjustments. If: (i) the Company shall declare any dividend or
distribution upon its stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription prorata to the holders
of any class of its Preferred or other convertible stock on the basis of their
ownership thereof any additional shares of stock of any class or other rights;
(iii) there shall be any Merger Event; (iv) there shall be an initial public
offering; or (v) there shall be any voluntary dissolution, liquidation or
winding up of the Company; then, in connection with each such event, the Company
shall send to the Warrantholder: (A) prior written notice no later than the date
that such notice is provided to the Company's shareholders of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution, subscription rights (specifying the date on which the
holders of Preferred Stock shall be entitled thereto) or for determining rights
to vote in respect of such Merger Event, dissolution, liquidation or winding up;
(B) in the case of any such Merger Event, dissolution, liquidation or winding
up, prior written notice no later than the date that such notice is provided to
the Company's shareholders of the date when the same shall take place (and
specifying the date on which the holders of Preferred Stock shall be entitled to
exchange their Preferred Stock for securities or other property deliverable upon
such Merger Event, dissolution, liquidation or winding up); and (C) in the case
of a public offering, the Company shall give the Warrantholder prior written
notice no later than the date that such notice is provided to the Company's
shareholders.
Each such written notice shall set forth, in reasonable detail, (i) the event
requiring the adjustment, (ii) the amount of the adjustment, (iii) the method by
which such adjustment was calculated, (iv) the Exercise Price, and (v) the
number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
(g) Timely Notice. Failure to timely provide such notice required by subsection
(f) above shall entitle Warrantholder to retain the benefit of the applicable
notice period notwithstanding
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anything to the contrary contained in any insufficient notice received by
Warrantholder. The notice period shall begin on the date Warrantholder actually
receives a written notice containing all the information specified above.
9. REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Preferred Stock. The Preferred Stock issuable upon exercise
of the Warrantholder's rights has been duly and validly reserved and, when
issued in accordance with the provisions of this Warrant Agreement, will be
validly issued, fully paid and non-assessable, and will be free of any taxes,
liens, charges or encumbrances of any nature whatsoever; provided, however, that
the Preferred Stock issuable pursuant to this Warrant Agreement may be subject
to restrictions on transfer under state and/or Federal securities laws. The
Company has made available to the Warrantholder true, correct and complete
copies of its Charter and Bylaws, as amended. The issuance of certificates for
shares of Preferred Stock upon exercise of the Warrant Agreement shall be made
without charge to the Warrantholder for any issuance tax in respect thereof, or
other cost incurred by the Company in connection with such exercise and the
related issuance of shares of Preferred Stock. The Company shall not be required
to pay any tax which may be payable in respect of any transfer involved and the
issuance and delivery of any certificate in a name other than that of the
Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this Warrant
Agreement and the performance of all obligations of the Company hereunder,
including the issuance to Warrantholder of the right to acquire the shares of
Preferred Stock, have been duly authorized by all necessary corporate action on
the part of the Company, and the Leases and this Warrant Agreement are not
inconsistent with the Company's Charter or Bylaws, to the Company's knowledge,
do not contravene any law or governmental rule, regulation or order applicable
to it, do not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument to which it is a
party or by which it is bound, and the Leases and this Warrant Agreement
constitute legal, valid and binding agreements of the Company, enforceable in
accordance with their respective terms , except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditor's rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
(c) Consents and Approvals. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement, except for any filing of notices pursuant to Regulation
D under the 1933 Act and any filing required by applicable state securities law,
which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws. In addition the
authorized capital of the Company consists of the following as of February 24,
2000:
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(i) Preferred Stock. Forty-nine million three hundred eighty-two thousand
seven hundred sixty-nine (49,382,769) shares of Preferred Stock (the "Preferred
Stock"), of which eleven million one hundred sixty thousand (11,160,000) shares
have been designated as Series A Preferred Stock, all of which are issued and
outstanding, six million two hundred twelve thousand two hundred fifty-nine
(6,212,259) shares have been designated Series B-1 Preferred Stock (the "Series
B-1 Preferred Stock"), all of which are issued and outstanding, nine million
eight hundred ten thousand five hundred ten (9,810,510) shares have been
designated Series B-2 Preferred Stock (the "Series B-2 Preferred Stock"), nine
million seven hundred thirty-two thousand five hundred ten (9,732,510) of which
are issued and outstanding, twelve million six hundred thousand (12,600,000)
shares have been designated Series C Preferred Stock (the "Series C Preferred
Stock"), twelve million ninety-eight thousand six hundred sixty-four
(12,098,664) of which were issued or outstanding and nine million six hundred
thousand (9,600,000) shares have been designated Series D Preferred Stock (the
"Series D Preferred Stock"), nine million ninety-three thousand eight hundred
forty-three (9,093,843) of which were issued and outstanding immediately prior
to the Closing.
(ii) Common Stock. Ninety million (90,000,000) shares of Common Stock ("Common
Stock"), of which six million four hundred ten thousand five hundred forty-one
(6,410,541) shares are issued and outstanding.
(iii) Except for (A) the conversion privileges of the Series A, Series B-1,
Series B-2, Series C and Series D Preferred Stock, (B) the rights provided in
Section 2.4 of the Rights Agreement (as defined below), and (C) currently
outstanding options to purchase one million three hundred nine thousand one
(1,309,001) shares of the Company's Common Stock, there are not outstanding any
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Company of any shares of its
capital stock. The Company has reserved two million one hundred fifty nine
thousand one hundred forty seven (2,159,147) shares of its Common Stock for
purchase upon exercise of options to be granted in the future under the
Company's 1997 Stock Plan.
(e) Other Commitments to Register Securities. Except as set forth in this
Warrant Agreement and in that certain Amended and Restated Investors Rights
Agreement (the "Rights Agreement") dated as of November 10, 1999 by and between
the Company and the Founders and the Investors (as defined therein), the Company
is not, pursuant to the terms of any other agreement currently in existence,
under any obligation to register under the 1933 Act any of its presently
outstanding securities or any of its securities which may hereafter be issued.
(f) Exempt Transaction. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Preferred Stock upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act, in reliance upon Section
4(2) thereof, and (ii) the qualification requirements of the applicable state
securities laws.
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10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance upon the
following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Preferred Stock or the Preferred
Stock issuable upon exercise of the Warrantholder's rights contained herein or
Common Stock issuable upon conversion thereof will be acquired for investment
and not with a view to the sale or distribution of any part thereof, and the
Warrantholder has no present intention of selling or engaging in any public
distribution of the same except pursuant to a registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the Preferred Stock
issuable upon exercise of this Warrant (or Common Stock issuable upon conversion
thereof) is not registered under the 1933 Act or qualified under applicable
state securities laws on the ground that the issuance contemplated by this
Warrant Agreement will be exempt from the registration and qualifications
requirements thereof, and (ii) that the Company's reliance on such exemption is
predicated on the representations set forth in this Section 10.
(c) Disposition of Warrantholder's Rights. In no event will the Warrantholder
make a disposition of any of its rights to acquire Preferred Stock or Preferred
Stock issuable upon exercise of such rights (or Common Stock issuable upon
conversion thereof) unless and until (i) it shall have notified the Company of
the proposed disposition, and (ii) if requested by the Company, it shall have
furnished the Company with an opinion of counsel (which counsel may either be
inside or outside counsel to the Warrantholder) satisfactory to the Company and
its counsel to the effect that (A) appropriate action necessary for compliance
with the 1933 Act has been taken, or (B) an exemption from the registration
requirements of the 1933 Act is available. Notwithstanding the foregoing, the
restrictions imposed upon the transferability of any of its rights to acquire
Preferred Stock or Preferred Stock issuable on the exercise of such rights (or
Common Stock issuable upon conversion thereof) do not apply to transfers from
the beneficial owner of any of the aforementioned securities to its nominee or
from such nominee to its beneficial owner, and shall terminate as to any
particular share of Preferred Stock when (1) such security shall have been
effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration or (2) such security shall have been sold
without registration in compliance with Rule 144 under the 1933 Act, or (3) a
letter shall have been issued to the Warrantholder at its request by the staff
of the Securities and Exchange Commission or a ruling shall have been issued to
the Warrantholder at its request by such Commission stating that no action shall
be recommended by such staff or taken by such Commission, as the case may be, if
such security is transferred without registration under the 1933 Act in
accordance with the conditions set forth in such letter or ruling and such
letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as
hereinabove provided, the Warrantholder or holder of a share of Preferred Stock
then outstanding (or Common Stock issuable upon conversion thereof) as to which
such restrictions have terminated shall be entitled to receive from the Company,
without expense to such holder, one or more new certificates for the Warrant or
for such shares of Preferred Stock (or Common Stock issuable upon conversion
thereof) not bearing any restrictive legend.
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(d) Financial Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(e) Risk of No Registration. The Warrantholder understands that if the Company
does not register with the Securities and Exchange Commission pursuant to
Section 12 of the 1934 Act (the "1934 Act"), or file reports pursuant to Section
15(d), of the 1934 Act, or if a registration statement covering the securities
under the 1933 Act is not in effect when it desires to sell (i) the rights to
purchase Preferred Stock pursuant to this Warrant Agreement, or (ii) the
Preferred Stock issuable upon exercise of the right to purchase (or Common Stock
issuable upon conversion thereof) it may be required to hold such securities for
an indefinite period. The Warrantholder also understands that any sale of its
rights of the Warrantholder to purchase Preferred Stock or Preferred Stock (or
Common Stock issuable upon conversion thereof) which might be made by it in
reliance upon Rule 144 under the 1933 Act may be made only in accordance with
the terms and conditions of that Rule.
(f) Accredited Investor. Warrantholder is an "accredited investor" within the
meaning of the Securities and Exchange Rule 501 of Regulation D, as presently in
effect.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof, this Warrant
Agreement and all rights hereunder are transferable in whole or in part by the
Warrantholder and any successor transferee, provided, however, in no event shall
the number of transfers of the rights and interests in all of the Warrants
exceed three (3) transfers and in all events shall the transferee be subject to
the obligations hereunder. The transfer shall be recorded on the books of the
Company upon receipt by the Company of a notice of transfer in the form attached
hereto as Exhibit III (the "Transfer Notice"), at its principal offices and the
payment to the Company of all transfer taxes and other governmental charges
imposed on such transfer.
12. MARKET STANDOFF.
Warrantholder hereby agrees that, during the period of duration specified by the
Company and an underwriter of Common Stock or other securities of the Company,
following the effective date of a registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it immediately prior to the
effective date of such registration statement, except Common Stock included in
such registration; provided, however, that:
(a) such agreement shall be applicable only to the first such registration
statement of the Company that covers Common Stock (or other securities) to be
sold on its behalf to the public in an underwritten offering;
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(b) all officers and directors of the Company and all other persons with
registration rights (whether or not pursuant to this Agreement) enter into
similar agreements; and
(c) such market stand-off time period shall not exceed one hundred eighty (180)
days.
In order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Company's securities held by the Warrantholder
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
13. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant Agreement shall be construed
and shall be given effect in all respects as if it had been executed and
delivered by the Company on the date hereof. This Warrant Agreement shall be
binding upon any successors or assigns of the Company and Warrantholder.
(b) Attorney's Fees. In any litigation, arbitration or court proceeding between
the Company and the Warrantholder relating hereto, the prevailing party shall be
entitled to attorneys' fees and expenses and all costs of proceedings incurred
in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and construed
for all purposes under and in accordance with the laws of the State of Texas.
(d) Counterparts. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery or mail as
hereinafter set forth) or seven (7) days after deposit in the United States
mail, by registered or certified mail, addressed (i) to the Warrantholder at
0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Venture Lease
Administration, cc: Legal Department, Attention.: General Counsel, (and/or, if
by facsimile, (000)000-0000 and (000)000-0000) and (ii) to the Company at 0000
Xxxx Xxxxxxx Xxxx. Xxxxxxxxxx, XX 00000, Attention: Chief Financial Officer
(and/or if by facsimile, (000)000-0000) or at such other address as any such
party may subsequently designate by written notice to the other party.
(f) Remedies. In the event of any default hereunder, the non-defaulting party
may proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including but not limited to an action for damages as a result of
any such default, and/or an action for specific performance for any default
where Warrantholder will not have an adequate remedy at law and where damages
will not be readily ascertainable. The Company expressly agrees that it shall
not oppose an application by the Warrantholder or any other person entitled to
the benefit of this
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Agreement requiring specific performance of any or all provisions hereof or
enjoining the Company from continuing to commit any such breach of this Warrant
Agreement.
(g) No Impairment of Rights. The Company will not, by amendment of its Charter
or through any other means, 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 actions as
may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment. The foregoing notwithstanding, the Company
shall not be deemed to have impaired the Warrantholder's rights hereunder if it
amends its Charter, or the holders of the Preferred Stock waive rights
thereunder or if the holders of Preferred Stock elect to convert all outstanding
shares of the Company into Common Stock, in a manner that does not affect the
Warrantholder in a manner different from the effect that such amendments or
waivers or election have on the rights of the holders of the Preferred Stock.
(h) Survival. The representations, warranties, covenants and conditions of the
respective parties contained herein or made pursuant to this Warrant Agreement
shall survive the execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended or
waived by a written instrument signed by the Company and by the Warrantholder.
(k) Additional Documents. The Company, upon execution of this Warrant
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (f) of Section 9 above.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be
executed by its officers thereunto duly authorized as of the Effective Date.
Company: CHORUM TECHNOLOGIES INC.
By: /s/ Xxxx Xxxxx
---------------------------------------
Title: CFO
------------------------------------
Warrantholder: COMDISCO, INC.
By:
---------------------------------------
Title:
____________________________________
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EXHIBIT I
NOTICE OF EXERCISE
To: ____________________________________
(1) The undersigned Warrantholder hereby elects to purchase ________________
shares of the Series __ Preferred Stock of ______________, pursuant to the terms
of the Warrant Agreement dated the ___ day of ____________ 20__ (the "Warrant
Agreement") between __________________ and the Warrantholder, and tenders
herewith payment of the purchase price for such shares in full, together with
all applicable transfer taxes, if any.
(2) In exercising its rights to purchase the Series __ Preferred Stock of
______________________, the undersigned hereby confirms and acknowledges the
investment representations and warranties made in Section 10 of the Warrant
Agreement.
(3) Please issue a certificate or certificates representing said shares of
Series __ Preferred Stock in the name of the undersigned or in such other
name as is specified below.
______________________________
(Name)
______________________________
(Address)
Warrantholder: COMDISCO, INC.
By: __________________________
Title: _______________________
Date: ________________________
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EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned ________________, hereby acknowledge receipt of the "Notice
of Exercise" from Comdisco, Inc., to purchase ________________ shares of the
Series __ Preferred Stock of ________________, pursuant to the terms of the
Warrant Agreement, and further acknowledges that _____________ shares remain
subject to purchase under the terms of the Warrant Agreement.
Company:
By: ______________________________
Title: ___________________________
Date: ____________________________
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