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EXHIBIT 10.4
AUSPEX SYSTEMS, INC.
WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement is made as of this 17th day of October,
2000, between Auspex Systems, Inc., a Delaware corporation (the "COMPANY"), and
Baruch and Xxxxxxxx Xxxxxxx (the "HOLDERS" or the "PURCHASERS").
The parties hereby agree as follows:
1. Purchase and Sale of Warrants. Subject to the terms and conditions
set forth herein, the Company will sell and issue to Holders two warrants
("WARRANTS"), in the form attached hereto as Exhibit A and B, to purchase from
the Company, on or before the date of termination of the Warrants, shares of
fully paid and nonassessable Common Stock (as defined in the Warrants) of the
Company ("SHARES"). The Warrants and the Shares are collectively referred to
herein as the "SECURITIES."
2. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
2.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as currently conducted.
2.2 Authorization. The Company has authorized the sale and
issuance of warrants to purchase shares of Common Stock.
2.3 Valid Issuance of the Shares. The Shares when issued, sold
and delivered upon exercise of the Warrants in accordance with the terms of this
Agreement for the exercise price expressed herein, will be duly and validly
issued, fully paid, and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
3. Representations and Warranties of Purchasers. Purchasers hereby
represent and warrant that:
3.1 Experience. Purchasers are experienced in evaluating
development-stage companies such as the Company, are able to evaluate and
represent their own interests in transactions such as the one contemplated by
this Agreement, have such knowledge and experience in financial and business
matters that Purchasers are capable of evaluating the merits and risks of
Purchasers' prospective investment in the Company, and have the ability to bear
the economic risks of the investment.
3.2 Investment. Purchasers are acquiring the Securities for
investment for Purchasers' own account and not with the view to, or for resale
in connection with, any distribution
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thereof. Purchasers understand that the Securities have not been registered
under the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment intent as expressed herein. Purchasers
further represent that they do not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to any
third person with respect to the Securities. Purchasers understand and
acknowledge that the offering of the Securities pursuant to this Agreement will
not be registered under the Securities Act on the ground that the sale provided
for in this Agreement and the issuance of securities hereunder is exempt from
the registration requirements of the Securities Act.
3.3 Accredited Investor. Purchasers are "accredited investors"
within the meaning of Securities and Exchange Commission Rule 501 of Regulation
D, as presently in effect.
3.4 Rule 144. Purchasers acknowledge that the Securities must be
held indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser are aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions. Purchasers covenant that, in the absence of an effective
registration statement covering the securities in question, such Purchasers will
sell, transfer, or otherwise dispose of the Securities only in a manner
consistent with such Purchasers' representations and covenants set forth in this
Section 3. In connection therewith, such Purchasers acknowledge that the Company
will make a notation on its stock books regarding the restrictions on transfers
set forth in this Section 3 and will transfer securities on the books of the
Company only to the extent not inconsistent therewith.
3.5 Authorization. This Agreement when executed and delivered by
Purchasers will constitute a valid and legally binding obligation of Purchasers,
enforceable in accordance with its terms, subject to: (i) judicial principles
respecting election of remedies or limiting the availability of specific
performance, injunctive relief, and other equitable remedies and (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights.
4. Miscellaneous.
4.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware, without regard to any provisions
thereof relating to conflicts of laws among different jurisdictions.
4.2 Not Legal or Tax Advice. Purchasers should carefully read
this Agreement. Nevertheless, the contents of this Agreement should not be
considered to be legal or tax advice. Purchasers should consult with their own
counsel and advisers as to all matters concerning acquisition of the Warrants as
well as matters concerning the exercise of the Warrants into Common Stock.
4.3 Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and
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administrators of the parties hereto; provided, however, that the rights of
Purchasers to acquire the Warrants shall not be assignable without the consent
of the Company.
4.4 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by Purchasers or the
Company and the closing of the transactions contemplated hereby.
4.5 Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement among the parties with regard to the
subjects hereof and thereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by the party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
4.6 Counterparts. This Agreement may be executed in any number
of counterparts all of which together shall constitute one instrument.
4.7 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AUSPEX SYSTEMS, INC. PURCHASERS
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXX
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Name: Xxxxx X. Xxxxxxx Name: Xxxxxx Xxxxxxx
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Title: CFO
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By: /s/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
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Apt. 10A
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Xxx Xxxx, XX 00000
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