EXHIBIT 10.25
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE
ARE SUBJECT TO TRANSFER AND REPURCHASE RESTRICTIONS
SET FORTH IN SECTIONS 4 AND 11 BELOW.
SCC COMMUNICATIONS CORP.
Common Stock Purchase Warrant
(Void after April 19, 2002)
Number of Shares: 36,750
(subject to adjustment)
Date of Issuance: April 19, 2000
SCC Communications Corp., a Delaware corporation (the "Company"), for value
received, hereby certifies that Leopard Communications, or its registered
assigns (the "Registered Holder"), is entitled, subject to the terms and
conditions set forth below, to purchase from the Company, at any time or from
time to time on or after the date of issuance and on or before 5 P.M. (Mountain
time) on April 19, 2002, 36,750 shares of Common Stock of the Company, at a
purchase price of $6.031 per share. The shares purchasable upon exercise of
this Warrant, and the purchase price per share, each as adjusted from time to
time pursuant to the provisions of this Warrant, are hereinafter referred to as
the "Warrant Shares" and the "Purchase Price," respectively.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole or in
part, by surrendering this Warrant, with the purchase form appended hereto as
Exhibit I duly executed by the Registered Holder or by the Registered Holder's
duly authorized attorney, at the principal office of the Company, or at such
other office or agency as the Company may designate, accompanied by payment in
full, in lawful money of the United States (except to the extent contemplated by
Section 1(b) below), of the Purchase Price payable in respect of the number of
Warrant Shares purchased upon such exercise.
(b) The Registered Holder may, at its option, elect to pay some or all of
the Purchase Price payable upon an exercise of this Warrant by canceling a
portion of this Warrant exercisable for such number of Warrant Shares as is
determined by dividing (i) the total Purchase Price payable in respect of the
number of Warrant Shares being purchased upon such exercise by (ii) the excess
of the Fair Market Value per share of Common Stock (as defined below) as of the
Exercise Date (as defined in subsection 1(c) below) over the Purchase Price per
share. If the Registered Holder wishes to exercise this Warrant pursuant to this
method of payment with respect to the maximum number of Warrant Shares
purchasable pursuant to this method, then the number of Warrant Shares so
purchasable shall be equal to the total number of Warrant Shares, minus the
product obtained by multiplying (x) the total number of Warrant Shares by (y) a
fraction, the numerator of which shall be the Purchase Price per share and the
denominator of which shall be the Fair Market Value per share of Common Stock as
of the Exercise Date. The Fair Market Value per share of Common Stock shall be
determined as follows
(i) If the Common Stock is listed on a national securities exchange,
the Nasdaq National Market or another nationally recognized trading system
as of the Exercise Date, the Fair Market Value per share of Common Stock
shall be deemed to be the average of the high and low reported sale prices
per share of Common Stock thereon for the trading day immediately
preceding the Exercise Date,
provided that if no such price is reported on such days, the Fair Market
Value per share of Common Stock shall be determined pursuant to clause (ii).
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per share of
Common Stock shall be deemed to be the amount most recently determined by
the Board of Directors to represent the fair market value per share of the
Common Stock (including without limitation a determination for purposes of
granting Common Stock options or issuing Common Stock under an employee
benefit plan of the Company); and, upon request of the Registered Holder,
the Board of Directors (or a representative thereof) shall promptly notify
the Registered Holder of the Fair Market Value per share of Common Stock.
Notwithstanding the foregoing, if the Board of Directors has not made such a
determination within the three-month period prior to the Exercise Date, then
(A) the Board of Directors shall make a determination of the Fair Market
Value per share of the Common Stock within 15 days of a request by the
Registered Holder that it do so, and (B) the exercise of this Warrant
pursuant to this subsection 1(b) shall be delayed until such determination
is made.
(c) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a) above
(the "Exercise Date"). At such time, the person or persons in whose name or
names any certificates for Warrant Shares shall be issuable upon such exercise
as provided in subsection 1(d) below shall be deemed to have become the holder
or holders of record of the Warrant Shares represented by such certificates.
(d) As soon as practicable after the exercise of this Warrant in full or in
part, and in any event within 10 days thereafter, the Company, at its expense,
will cause to be issued in the name of, and delivered to, the Registered Holder,
or as such Holder (upon payment by such Holder of any applicable transfer taxes)
may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which the Registered Holder shall be entitled upon such exercise
plus, in lieu of any fractional share to which the Registered Holder would
otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face
or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on
the face of this Warrant minus the sum of (a) the number of such shares
purchased by the Registered Holder upon such exercise plus (b) the number of
Warrant Shares (if any) covered by the portion of this Warrant cancelled in
payment of the Purchase Price payable upon such exercise pursuant to
subsection 1(b) above.
2. Adjustments.
(a) Adjustment for Stock Splits and Combinations. If the Company shall at
any time or from time to time after the date on which this Warrant was first
issued (the "Original Issue Date") effect a subdivision of the outstanding
Common Stock, the Purchase Price then in effect immediately before that
subdivision shall be proportionately decreased. If the Company shall at any time
or from time to time after the Original Issue Date combine the outstanding
shares of Common Stock, the Purchase Price then in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
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paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event the
Company at any time, or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(ii) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of
shares of Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Purchase Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Purchase Price shall be
adjusted pursuant to this paragraph as of the time of actual payment of such
dividends or distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment is required
to be made in the Purchase Price pursuant to subsection 2(a) or 2(b), the number
of Warrant Shares purchasable upon the exercise of this Warrant shall be changed
to the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such adjustment.
(d) Adjustments for Other Dividends and Distributions. In the event the
Company at any time or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than cash out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company and/or cash and
other property which the Registered Holder would have been entitled to receive
had this Warrant been exercised into Common Stock on the date of such event and
had the Registered Holder thereafter, during the period from the date of such
event to and including the Exercise Date, retained any such securities
receivable, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered Holder.
(e) Adjustment for Mergers or Reorganizations, etc. If there shall occur
any reorganization, recapitalization, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for securities,
cash or other property (other than a transaction covered by subsections 2(a),
2(b) or 2(d)), then, following any such reorganization, recapitalization,
consolidation or merger, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash
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or other property which the Registered Holder would have been entitled to
receive if, immediately prior to such reorganization, recapitalization,
consolidation or merger, the Registered Holder had held the number of shares of
Common Stock subject to this Warrant. In any such case, appropriate adjustment
(as determined in good faith by the Board of Directors of the Company) shall be
made in the application of the provisions set forth herein with respect to the
rights and interests thereafter of the Registered Holder, to the end that the
provisions set forth in this Section 2 (including provisions with respect to
changes in and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities, cash
or other property thereafter deliverable upon the exercise of this Warrant.
(f) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Purchase Price pursuant to this Section 2, the Company at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Registered Holder a certificate setting
forth such adjustment or readjustment (including the kind and amount of
securities, cash or other property for which this Warrant shall be exercisable
and the Purchase Price) and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written request
at any time of the Registered Holder, furnish or cause to be furnished to the
Registered Holder a certificate setting forth (i) the Purchase Price then in
effect and (ii) the number of shares of Common Stock and the amount, if any, of
other securities, cash or property which then would be received upon the
exercise of this Warrant.
3. Fractional Shares.
The Company shall not be required upon the exercise of this Warrant to issue
any fractional shares, but shall make an adjustment therefor in cash on the
basis of the Fair Market Value per share of Common Stock, as determined pursuant
to subsection 1(b) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or transferred
unless either (i) they first shall have been registered under the Securities Act
of 1933, as amended (the "Act"), or (ii) the Company first shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
(b) Notwithstanding the foregoing, no registration or opinion of counsel
shall be required for (i) a transfer by a Registered Holder which is a
corporation to a wholly owned subsidiary of such corporation, a transfer by a
Registered Holder which is a partnership to a partner of such partnership or a
retired partner of such partnership or to the estate of any such partner or
retired partner, or a transfer by a Registered Holder which is a limited
liability company to a member of such limited liability company or a retired
member or to the estate of any such member or retired member, provided that the
transferee in each case agrees in writing to be subject to the terms of this
Section 4, or (ii) a transfer made in accordance with Rule 144 under the Act.
(c) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered, sold
or otherwise transferred, pledged or hypothecated unless and until such
securities are registered under such Act or an opinion of counsel
satisfactory to the issuer is obtained to the effect that such registration
is not required.
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The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the Registered Holder thereof, at such time as
they become eligible for resale pursuant to Rule 144(k) under the Act.
5. No Impairment.
The Company will not, by amendment of its charter or through reorganization,
transfer 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 Registered Holder against impairment.
6. Notices of Record Date, etc.
In the event:
(a) the Company shall take a record of the holders of its Common Stock (or
other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right;
(b) of any capital reorganization of the Company, any reclassification of
the Common Stock of the Company, any consolidation or merger of the Company with
or into another corporation (other than a consolidation or merger in which the
Company is the surviving entity and its Common Stock is not converted into or
exchanged for any other securities or property), or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten days prior
to the record date or effective date for the event specified in such notice.
7. Reservation of Stock.
The Company will at all times reserve and keep available, solely for
issuance and delivery upon the exercise of this Warrant, such number of Warrant
Shares and other securities, cash and/or property, as from time to time shall be
issuable upon the exercise of this Warrant.
8. Exchange of Warrants.
Upon the surrender by the Registered Holder, properly endorsed, to the
Company at the principal office of the Company, the Company will, subject to the
provisions of Section 4 hereof, issue and deliver to or upon the order of such
Holder, at the Company's expense, a new Warrant or Warrants of like tenor, in
the name of the Registered Holder or as the Registered Holder (upon payment by
the Registered Holder
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of any applicable transfer taxes) may direct, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this Warrant.
9. Replacement of Warrants.
Upon 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) upon delivery of an indemnity agreement (with surety if
reasonably required) in an amount reasonably satisfactory to the Company, or (in
the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will issue, in lieu thereof, a new Warrant of like tenor.
10. Transfers, etc.
(a) The Company will maintain a register containing the name and address of
the Registered Holder of this Warrant. The Registered Holder may change its or
his address as shown on the warrant register by written notice to the Company
requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender of this
Warrant with a properly executed assignment (in the form of Exhibit II hereto)
at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant register, the
Company may treat the Registered Holder as the absolute owner hereof for all
purposes; provided, however, that if and when this Warrant is properly assigned
in blank, the Company may (but shall not be obligated to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
11. Purchase Option.
(a) The Company shall have the right and option (the "Purchase Option") to
purchase from the Registered Holder (i) at any time at which this Warrant is
outstanding, the rights of the Registered Holder to acquire some or all of the
Warrant Shares then subject to this Warrant, at a price equal to $25.00 per
Warrant Share (subject to equitable adjustment for stock dividends,
combinations, subdivisions and the like) less the Purchase Price
(b) The Company may exercise the Purchase Option by delivering or mailing
to the Registered Holder a written notice of exercise of the Purchase Option.
Such notice shall specify the rights or number of Warrant Shares to be
purchased. Within 10 days after delivery of such notice, the Registered Holder
shall tender to the Company at its principal offices either (i) this Warrant or
(ii) the certificate or certificates representing the Warrant Shares that the
Company has elected to purchase, duly endorsed in blank or with duly endorsed
stock powers attached thereto, all in form suitable for the transfer of such
Warrant Shares to the Company. Promptly thereafter, the Company shall pay to the
Registered Holder, in cash or by check (at the option of the Company), the
aggregate purchase price with respect to such exercise of the Purchase Option
and a replacement Warrant (in the event the Purchase Option has been exercised
to acquire some but not all of the rights of the Registered Holder to purchase
Warrant Shares hereunder) or a balance stock certificate (in the event the
Purchase Option has been exercised to acquire some but not all of the shares of
Common Stock represented by the tendered certificate or certificates). After the
time at which any Warrant Shares are required to be delivered to the Company for
transfer to the Company pursuant to this subsection (b), the Company shall not
pay any dividend to the Registered Holder on account of such Warrant Shares or
permit the Registered Holder to exercise any of the
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privileges or rights of a stockholder with respect to such Warrant Shares, but
shall, in so far as permitted by law, treat the Company as the owner of such
Warrant Shares.
(c) The Registered Holder acknowledges and agrees that the Company has the
right to deduct from payments of any kind otherwise due to the Registered Holder
any federal, state or local taxes of any kind required by law to be withheld
with respect to the exercise of the Purchase Option.
(d) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate are subject to repurchase by
the issuer pursuant to the provisions of Section 11 of the Warrant under
which they were acquired. A copy of those provisions is available from the
issuer upon written request."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the Registered Holder thereof, at such time as
the Purchase Option has expired
12. Mailing of Notices, etc.
All notices and other communications from the Company to the Registered
Holder shall be mailed by first-class certified or registered mail, postage
prepaid, to the address last furnished to the Company in writing by the
Registered Holder. All notices and other communications from the Registered
Holder or in connection herewith to the Company shall be mailed by first-class
certified or registered mail, postage prepaid, to the Company at its principal
office set forth below. If the Company should at any time change the location of
its principal office to a place other than as set forth below, it shall give
prompt written notice to the Registered Holder and thereafter all references in
this Warrant to the location of its principal office at the particular time
shall be as so specified in such notice.
13. No Rights as Stockholder.
Until the exercise of this Warrant, the Registered Holder shall not have or
exercise any rights by virtue hereof as a stockholder of the Company.
Notwithstanding the foregoing, in the event (i) the Company effects a split of
the Common Stock by means of a stock dividend and the Purchase Price of and the
number of Warrant Shares are adjusted as of the date of the distribution of the
dividend (rather than as of the record date for such dividend), and (ii) the
Registered Holder exercises this Warrant between the record date and the
distribution date for such stock dividend, the Registered Holder shall be
entitled to receive, on the distribution date, the stock dividend with respect
to the shares of Common Stock acquired upon such exercise, notwithstanding the
fact that such shares were not outstanding as of the close of business on the
record date for such stock dividend.
14. Change or Waiver.
Any term of this Warrant may be changed or waived only by an instrument in
writing signed by the party against which enforcement of the change or waiver is
sought.
15. Section Headings.
The section headings in this Warrant are for the convenience of the parties
and in no way alter, modify, amend, limit or restrict the contractual
obligations of the parties.
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16. Governing Law.
-------------
This Warrant will be governed by and construed in accordance with the
internal laws of the State of Colorado (without reference to the conflicts of
law provisions thereof).
Executed as of the Date of Issuance indicated above.
SCC Communications Corp.
By:___________________________________
Title:_____________________________
LEOPARD COMMUNICATIONS
By:___________________________________
Title:_____________________________
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EXHIBIT I
PURCHASE FORM
-------------
To: SCC Communications Corp. Dated:____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase (check applicable box):
[ ] _____ shares of the Common Stock covered by such Warrant; or
[ ] the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in Section 1(b).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant, which is $________.
Such payment takes the form of (check applicable box or boxes):
[ ] $______ in lawful money of the United States; and/or
[ ] the cancellation of such portion of the attached Warrant as is
exercisable for a total of ________ Warrant Shares (using a Fair
Market Value of $_____ per share for purposes of this calculation);
and/or
[ ] the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in Section 1(b), to exercise
this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in
Section 1(b).
Signature:_________________________
Address: _________________________
_________________________
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EXHIBIT II
ASSIGNMENT FORM
---------------
For Value Received, _______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant with respect to the number of shares of Common Stock covered thereby set
forth below, unto:
Name of Assignee Address No. of Shares
---------------- ------- -------------
Dated:_____________________ Signature:________________________________
Signature Guaranteed:
By:________________________
The signature should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934.
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