EXHIBIT 4.9
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO TRANSFER OF THIS
WARRANT SHALL BE VALID OR EFFECTIVE UNLESS SUCH TRANSFER IS MADE (A) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (B) IN A TRANSACTION THAT
QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS AND FOR WHICH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT HAS BEEN PROVIDED.
Warrant No. 5 Date: Xxxxx 00, 0000
XXXXXXX TO PURCHASE COMMON STOCK
OF
CONCURRENT COMPUTER CORPORATION
Void after 5:00 P.M. (United States Eastern Time)
on January 15, 2007, unless extended as provided herein.
This certifies that, for value received, receipt and sufficiency of which
are hereby acknowledged, Comcast Concurrent Holdings, Inc., or its registered
assigns (the "HOLDER"), is entitled, subject to the terms and conditions set
forth below, to purchase from Concurrent Computer Corporation, a Delaware
corporation (the "COMPANY"), fourteen thousand three hundred and fifty-five
(14,355) (the "WARRANT NUMBER") validly issued, fully paid and nonassessable
shares (the "WARRANT SHARES") of Common Stock of the Company, par value $0.01
per share (the "COMMON STOCK"), subject to adjustment as provided herein, at a
purchase price equal to $2.89 per share (the "EXERCISE PRICE").
The term "WARRANT" as used herein shall mean 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,
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this Warrant shall be exercisable, in whole or in part, during the term
commencing on the date hereof and ending at 5:00 P.M. (United States Eastern
Time) on January 15, 2007 (subject to extension as provided below, the "EXERCISE
PERIOD"); provided, however, that (a) in the event that the expiration date of
this Warrant shall fall on a Saturday, Sunday or United States federally
recognized holiday, the expiration date for this Warrant shall be extended to
5:00 P.M. (United States Eastern Time) on the Business Day (as defined in
Section 6(i)) following such Saturday, Sunday or recognized holiday, (b) in the
event that, on the expiration date of this Warrant, the Company is then
required, pursuant to an effective demand therefor under that certain
Registration Rights Agreement of even date herewith between the Company and the
initial Holder hereof (the "REGISTRATION RIGHTS AGREEMENT") to use its
reasonable best efforts to effect, or is in the process of effecting, a
registration under the Securities Act of 1933, as amended (the "SECURITIES ACT")
for a public offering in which Warrant Shares are entitled to be included as
provided in the Registration Rights Agreement, or if the Company is in default
of any such obligations to register the sale of such Common Stock, the right to
exercise this Warrant shall continue until the later of 5:00 P.M. (United States
Eastern Time) on the 30th day following the date on which such registration
shall have become effective or the 30th day following the date all such defaults
shall have been cured, and (c) in the event that, on the expiration date of this
Warrant, the Holder and the Company are in the process of complying with the
provisions of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT"), in accordance with the provisions of Section 2(d)
below, the right to exercise this Warrant shall continue until 5:00 P.M. (United
States Eastern Time) on the 30th day following the date on which any waiting
period under the HSR Act applicable to the exercise of the Warrant shall have
expired or been terminated.
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2. Exercise of Warrant. This Warrant may be exercised by the Holder, in
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whole or in part, by (i) the surrender of this Warrant to the Company, with the
Notice of Exercise annexed hereto duly completed and executed on behalf of the
Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company) during the Exercise Period and
(ii) the delivery of payment to the Company of the Exercise Price for the number
of Warrant Shares specified in the Notice of Exercise in any manner specified in
subsection (c) of this Section 2.
(a) The Company agrees that such Warrant Shares shall be deemed to be
issued to the Holder as the record holder of such Warrant Shares as of the close
of business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid. A stock certificate or
certificates for the Warrant Shares specified in the Notice of Exercise shall be
delivered to the Holder as promptly as practicable, and in any event within ten
days thereafter. If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of the stock certificate or certificates,
deliver to the Holder a new Warrant evidencing the rights to purchase the
remaining Warrant Shares, which new Warrant shall in all other respects be
identical with this Warrant. No adjustments shall be made on Warrant Shares
issuable on the exercise of this Warrant for any cash dividends paid or payable
to holders of record of Common Stock prior to the date as of which the Holder
shall be deemed to be the record holder of such Warrant Shares.
(b) The Exercise Price shall be payable (i) in cash or its
equivalent, payable by wire transfer of immediately available funds to a bank
account specified by the Company or by certified or bank cashiers' check in
lawful money of the United States of America; (ii) by surrendering to the
Company the right to purchase a number of Warrant Shares equal to the product
obtained by multiplying the number of Warrant Shares to be purchased (including
any Warrant Shares to be surrendered) by a fraction, the numerator of which is
the Exercise Price and the denominator of which is the Current Market Price (as
defined in Section 6(i) below) of the Common Stock on the date of exercise of
the Warrant, or (iii) in any combination of (i) or (ii). In the event the
Exercise Price is to be paid, in whole or in part, in accordance with the
payment method described in clause (ii), and compliance with the provisions of
the HSR Act is required in accordance with subsection (d) of this Section 2
prior to the consummation of such exercise, the Current Market Price of the
Common Stock shall be calculated as of the date on which the Holder notifies the
Company of its decision to exercise the Warrant, pending compliance with the
provisions of the HSR Act, rather than the date of the consummation of such
exercise.
(c) The Holder agrees that any exercise of this Warrant is, to the
extent applicable, subject to compliance with the provisions of the HSR Act.
The Company agrees that, in the event that the exercise of this Warrant by the
Holder requires compliance with any provisions of the HSR Act, the Company shall
cooperate with the Holder in connection with any such filings by (i) making all
filings required to be made on the Company's part under the HSR Act and (ii)
promptly furnishing, or causing to be furnished, any information that may be
required by the Federal Trade Commission or the Department of Justice under the
HSR Act.
3. No Fractional Shares or Scrip. No fractional shares or scrip representing
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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 Current Market Price multiplied
by such fraction or, at the Company's option, round such fractional share to the
nearest whole share.
4, Replacement of Warrant. On receipt of evidence reasonably satisfactory to
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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.
5. Rights of Stockholders. Subject to the provisions of Sections 6(l) and 8
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hereof, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the Holder, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein.
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6. Antidilution Provisions. The Exercise Price and the Warrant Number shall
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be subject to adjustment from time to time as provided in this Section 6.
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common Stock or any
other security convertible into or exchangeable for shares of Common Stock
(other than any rights, options or warrants described in subsection (b) of this
Section 6), the Exercise Price in effect immediately prior to the opening of
business on the next Business Day following the date fixed for determination of
stockholders entitled to receive such dividend or other distribution shall be
reduced by multiplying such Exercise Price by a fraction of which (i) the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and (ii) the denominator
shall be the sum of (A) such number of shares referred to in clause (i) and (B)
the total number of shares of Common Stock constituting such dividend or other
distribution (or, in the case of a dividend or distribution of securities
convertible into or exchangeable for shares of Common Stock, the total number of
shares of Common Stock underlying such securities), such reduction to become
effective immediately prior to the opening of business on the next Business Day
following the date fixed for such determination. For the purposes of this
subsection (a), the number of shares of Common Stock at any time outstanding
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(b) In case the Company shall hereafter issue rights, options or
warrants to all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock or any other security convertible into or
exchangeable for shares of Common Stock (such rights, options or warrants not
being available on an equivalent basis to Holders of the Warrants upon exercise)
at a price per share less than the Current Market Price of the Common Stock on
the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants (other than pursuant to a dividend reinvestment
plan), (i) the Exercise Price in effect immediately prior to the opening of
business on the next Business Day following the date fixed for such
determination shall be reduced by multiplying the Exercise Price in effect
immediately prior to the close of business on the date fixed for the
determination of holders of Common Stock entitled to receive such rights,
options or warrants by a fraction of which (A) the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock that the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market Price
and (B) the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase (or such number of shares of Common Stock underlying any convertible
securities so offered for subscription or purchase), such reduction to become
effective immediately prior to the opening of business on the next Business Day
following the date fixed for such determination (for the purposes of this
subsection (b), the number of shares of Common Stock at any time outstanding
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock), and (ii) if any such rights, options or
warrants expire or terminate without having been exercised or are exercised for
a consideration different from that utilized in the computation of any
adjustment or adjustments on account of such rights, options or warrants, the
Exercise Price with respect to any Warrant not theretofore exercised shall be
readjusted such that the Exercise Price would be the same as would have resulted
had such adjustment been made without regard to the issuance of such expired or
terminated rights, options or warrants or based upon the actual consideration
received upon exercise thereof, as the case may be, which readjustment shall
become effective upon such expiration, termination or exercise, as applicable;
provided, however, that all readjustments in the Exercise Price based upon any
expiration, termination or exercise for a different consideration of any such
right, option or warrant, in the aggregate, shall not cause the Exercise Price
to exceed the Exercise Price immediately prior to the time such rights, options
or warrants were initially issued (without regard to any other adjustments of
such number under this subsection (b) that may have been made since the date of
the issuance of such rights, options or warrants).
(c) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Exercise Price
in effect immediately prior to the opening of business on the next Business Day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case the outstanding shares of
Common Stock shall each be combined into a smaller number of shares of Common
Stock, the Exercise Price in effect immediately prior to the opening of business
on the next Business Day following the day upon which such combination becomes
effective shall be proportionately increased.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its
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Common Stock evidences of its indebtedness or assets (including securities, but
excluding any rights, options or warrants referred to in subsection (b) of this
Section 6, any dividend or distribution paid exclusively in cash and any
dividend referred to in subsection (a) of this Section 6), the Exercise Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Exercise Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which (i) the numerator shall be the
Current Market Price at the close of business on the date fixed for such
determination less the then fair market value of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common Stock
, and (ii) the denominator shall be such Current Market Price, such adjustment
to become effective immediately prior to the opening of business on the next
Business Day following the date fixed for the determination of stockholders
entitled to receive such distribution.
(e) The Company may make such reductions in the Exercise Price, in
addition to those required by subsections (a), (b), (c) and (d) of this Section
6, as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
(f) In case of any reclassification, recapitalization or other change
in the outstanding securities of the class issuable upon exercise of this
Warrant (including any such reclassification, recapitalization or other change
upon a consolidation or merger in which the Company is the continuing
corporation, but not including any transactions for which an adjustment is
provided in subsection (c), (d) or (g) of this Section 6), the Company shall
execute and deliver to the Holder a new warrant certificate, satisfactory in
form and substance to the Holder and without payment of any additional
consideration therefor, providing that the Holder shall have the right
thereafter, during the period such Warrant shall be outstanding, to exercise
such Warrant into the kind and amount (if any) of securities, cash and other
property receivable upon such reclassification, recapitalization or other change
by a holder of the number of shares of Common Stock issuable upon exercise of
this Warrant had it been exercised immediately prior to such reclassification,
recapitalization or other change. Such new Warrant shall provide for
adjustments that, for events subsequent to the effective date of such new
Warrant, shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 6. The above provisions of this subsection (f)
shall similarly apply to successive reclassifications, recapitalizations and
other changes in the outstanding securities of the class issuable upon exercise
of this Warrant.
(g) In case of any consolidation of the Company with, or merger of
the Company into, any other entity, any merger of another entity into the
Company (other than a merger that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the Common Stock)
or any sale or transfer of all or substantially all of the assets of the
Company, in each case in which this Warrant remains in full force and effect,
the provisions of this Warrant shall be immediately and automatically amended,
without any further action on the part of the Company or the Holder, to the
extent necessary to entitle the Holder to exercise such Warrant into the kind
and amount (if any) of securities, cash and other property receivable upon such
consolidation, merger, sale of transfer by a holder of the number of shares of
Common Stock that would have otherwise been issuable upon exercise of this
Warrant had it been exercised immediately prior to such consolidation, merger,
sale or transfer. If the holders of the Common Stock may elect from choices the
kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer, then for the purpose of this Section 6,
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer shall be deemed to be the choice
specified by the Holder, which specification shall be made by the Holder by the
later of (i) ten Business Days after the Holder is provided with a final version
of all information required by law or regulation to be furnished to holders of
Common Stock concerning such choice, or, if no such information is required, ten
Business Days after the Holder is provided with a final version of all
information that was otherwise furnished to the holders of Common Stock
concerning such choice, and (ii) the last time at which holders of Common Stock
are permitted to make their specification known to the Company. If the Holder
fails to make any specification, the Holder's choice shall be deemed to be
whatever choice is made by a plurality of holders of Common Stock not affiliated
with the Company or the other person to the merger or consolidation. Such new
Warrant shall provide for adjustments that, for events subsequent to the
effective date of such new Warrant, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. The above
provisions of this subsection (g) shall similarly apply to successive
consolidations, mergers, sales or transfers.
(h) If the Company, at any time within nine (9) months following the
issuance of this Warrant and while the Warrant remains outstanding and
unexpired, shall issue any Additional Shares of Common Stock (as defined below)
(otherwise than as provided in the foregoing subsections 6(a) through 6(g)
above) at a price per share less, or for other consideration lower, than the
Current Market Price as of the date of issuance of such Additional Shares of
Common Stock, or without consideration, then upon such issuance the Exercise
Price shall be
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adjusted to that price determined by multiplying the Exercise Price by a
fraction (i) the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to the issuance of such Additional Shares of
Common Stock plus the number of shares of Common Stock which the aggregate
consideration for the total number of such Additional Shares of Common Stock so
issued would purchase at the Current Market Price as of the date of issuance of
such Additional Shares of Common Stock, and (ii) the denominator of which shall
be the total number of shares of Common Stock outstanding immediately after the
issuance of such Additional Shares of Common Stock. No adjustment of the
Exercise Price shall be made under this subsection 6(h) upon the issuance of any
Additional Shares of Common Stock which are issued pursuant to the exercise of
any warrants, options or other subscription or purchase rights or pursuant to
the exercise of any conversion or exchange rights in any convertible securities
if any such adjustments shall previously have been made upon the issuance of any
such warrants, options or other rights or upon the issuance of any such
convertible securities (or upon the issuance of any warrants, options or any
rights therefor) pursuant to subsections 6(i) or 6(j) hereof.
(i) In case the Company shall issue any warrants, options or other
rights to subscribe for or purchase any Additional Shares of Common Stock during
the nine (9) month period referred to in Section 6(h) above, and the price per
share for which Additional Shares of Common Stock may be issuable pursuant to
the terms of such warrants, options or other rights on the date of issuance of
such warrants, options or other rights shall be less than the Current Market
Price as of the date of issuance of such warrants, options or other rights, then
upon such issuance the Exercise Price shall be adjusted as provided in
subsection 6(h) hereof on the basis that (i) the maximum number of Additional
Shares of Common Stock issuable pursuant to such warrants, options or other
rights shall be deemed to have been issued as of the date of issuance of such
warrants, options or rights, and (ii) the aggregate consideration for such
maximum number of Additional Shares of Common Stock shall be deemed to be the
consideration received by the Company for the issuance of such warrants,
options, or other rights plus the minimum consideration to be received by the
Company for the issuance of Additional Shares of Common Stock pursuant to such
warrants, options, or other rights. Notwithstanding any other language in this
Section 6 to the contrary, the adjustments required under this Section 6, and
the issuance of a new Warrant pursuant to Section 2(b), shall not be deemed, for
purposes of further adjustments, to be an issuance of any warrants, options or
other rights to subscribe for or purchase any Additional Shares of Common Stock.
(j) In case the Company shall issue any securities convertible into
Additional Shares of Common Stock during the nine (9) month period referred to
in Section 6(h) above and the price per share for which Additional Shares of
Common Stock may be issuable pursuant to the terms of such convertible
securities on the date of issuance of such convertible securities shall be less
than the Current Market Price as of the date of issuance of such convertible
securities, then upon such issuance the Exercise Price shall be adjusted as
provided in subsection 6(h) hereof on the basis that (i) the maximum number of
Additional Shares of Common Stock issuable upon the conversion or exchange of
all such convertible securities shall be deemed to have been issued as of the
date of issuance of such convertible securities, and (ii) the aggregate
consideration for such maximum number of Additional Shares of Common Stock shall
be deemed to be the consideration received by the Company for the issuance of
such convertible securities plus the minimum consideration to be received by the
Company for the issuance of such Additional Shares of Common Stock pursuant to
the terms of such convertible securities. No adjustment of the Exercise Price
shall be made under this subsection upon the issuance of any convertible
securities that are issued pursuant to the exercise of any warrants, options or
other subscription or purchase rights therefor, if any such adjustments shall
previously have been made upon the issuance of such warrants, options or other
rights pursuant to subsection 6(i) hereof. Notwithstanding any other language
in this Section 6 to the contrary, the adjustments required under this Section
6, and the issuance of a new Warrant pursuant to Section 2(b), shall not be
deemed, for purposes of further adjustments, to be an issuance of any securities
convertible into Additional Shares of Common Stock.
(k) Whenever there shall be any change in the Exercise Price under
this Section 6, then there shall be an adjustment (to the nearest thousandth) in
the Warrant Number, which adjustment shall become effective at the time such
change in the Exercise Price becomes effective and shall be made by multiplying
the Warrant Number in effect immediately before such change in the Exercise
Price by a fraction the numerator of which is the Exercise Price immediately
before such change and the denominator of which is the Exercise Price
immediately after such change.
(l) The following provisions will be applicable to the making of
adjustments in the Exercise Price hereinabove provided in this Section 6:
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(i) Computation of Consideration. To the extent that any
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Additional Shares of Common Stock or any warrants, options or other rights to
subscribe for or purchase any Additional Shares of Common Stock or any
securities convertible into Additional Shares of Comon Stock shall be issued for
a cash consideration, the consideration received by the Company therefor shall
be deemed to be (x) the amount of the cash received by the Company therefor, (y)
if such Additional Shares of Common Stock or warrants, options or other rights
or convertible securities are offered by the Company for subscription, the
subscription price, or (z) if such Additional Shares of Common Stock or
warrants, options or other rights or convertible securities are sold to or
through underwriters or dealers for public offering without a subscription
offering, the public offering price, in any such case disregarding any amounts
paid or incurred by the Company for and in the underwriting of, or otherwise in
connection with the issuance thereof. To the extent that such issuance shall be
for a consideration other than cash, then, except as herein otherwise expressly
provided, the amount of such consideration shall be deemed to be the fair value
of such consideration at the time of such issuance as determined in good faith
by the Company's Board of Directors in a manner reasonably acceptable to the
Holder. The consideration for any Additional Shares of Common Stock issuable
pursuant to any warrants, options or other rights to subscribe for or purchase
the same shall be the consideration received by the Company for issuing such
warrants, options or other rights, plus the additional consideration payable to
the Company upon the exercise of such warrants, options or other rights. The
consideration for any Additional Shares of Common Stock issuable pursuant to the
terms of any convertible securities shall be the consideration paid or payable
to the Company in respect of the subscription for or purchase of such
convertible securities, plus the additional consideration, if any, payable to
the Company upon the exercise of the right of conversion or exchange in such
convertible securities. In case of the issuance at any time of any Additional
Shares of Common Stock or warrants, options or other rights or convertible
securities in payment or satisfaction of any dividends in a fixed amount, the
Company shall be deemed to have received for such Additional Shares of Common
Stock or warrants, options or other rights or convertible securities a
consideration equal to the amount of such dividend so paid or satisfied.
(ii) Readjustment of Exercise Price. Upon the expiration of
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the right to convert or exchange any convertible securities, or upon the
expiration of any options, warrants or other rights, the issuance of which
convertible securities, options, warrants or other rights effected an adjustment
in the Exercise Price, if any such convertible securities shall not have been
converted or exchanged, or if any such options, warrants or other rights shall
not have been exercised, the number of shares of Common Stock deemed to be
issued and outstanding by reason of the fact that they were issuable upon
conversion or exchange of any such convertible securities or upon exercise of
any such options, warrants or other rights shall no longer be computed as set
forth above, and the Exercise Price shall forthwith be readjusted and thereafter
be the price which it would have been (but reflecting any other adjustments in
the Exercise Price made pursuant to the provisions of this Section 6 after the
issuance of such convertible securities, options, warrants or other rights) had
the adjustment of the Exercise Price made upon the issuance or sale of such
convertible securities or issuance of options, warrants or other rights been
made on the basis of the issuance only of the number of Additional Shares of
Common Stock actually issued upon conversion or exchange of such convertible
securities, or upon the exercise of such options, warrants or other rights, and
thereupon only the number of Additional Shares of Common Stock actually so
issued shall be deemed to have been issued and only the consideration actually
received by the Company (computed as in subsection (l)(i) hereof) shall be
deemed to have been received by the Company.
(m) For the purpose of any computation under subsection (c) of
Section 2, Section 3 or Section 6, the current market price per share of Common
Stock (the "Current Market Price") on any day shall be deemed to be the closing
price per share as of the earlier of the last trading day prior to the date in
question or the day before the Ex Date (as defined below) with respect to the
issuance, payment or distribution. For this purpose, the term "Ex Date," when
used with respect to the issuance, payment or distribution, shall mean the first
date on which the Common Stock trades regular way on the applicable securities
exchange or in the applicable securities market without the right to receive
such issuance or distribution. The closing price for each day shall be (i) as
reported in the Wall Street Journal (Eastern Edition) on the Nasdaq National
Market System, (ii) if the Common Stock is not listed or admitted to trading on
the Nasdaq National Market System, as reported in the Wall Street Journal
(Eastern Edition) on the SmallCap Market or the principal national securities
exchange on which the Common Stock is listed or admitted to trading or (iii) if
not listed or admitted to trading on the Nasdaq National Market System, on the
SmallCap Market or on any national securities exchange, as determined in good
faith by the Board of Directors of Company for that purpose. In the event that
the Board of Directors of the Company determines the Current Market Price
pursuant to the preceding sentence, the Holder may, at its sole discretion,
cause the Company to engage external independent appraisers selected by the
Holder to determine the Current Market Price, which determination shall be
binding. In the event that the Current Market Price determined by such
independent appraisers differs from the Current Market Price determined by the
Board of Directors of the
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Company by five percent (5%) or more and such difference is adverse to the
interests of Holder, the Company shall bear the costs and expenses related to
the independent audit; otherwise, the Holder shall bear such costs and expenses.
(n) No adjustment in the Exercise Price shall be required unless such
adjustment (plus any adjustments not previously made by reason of this
subsection (n)) would require an increase or decrease of at least 1% in such
Exercise Price; provided, however, that any adjustments that by reason of this
subsection (n) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
subsection (n) shall be made to the nearest cent or to the nearest 1/100 of a
share of Common Stock, as the case may be. Notwithstanding the foregoing, any
adjustment required by this subsection (n) shall be made no later than the
expiration of the right to exercise the Warrant or a portion thereof.
(o) Whenever the Exercise Price and Warrant Number is adjusted as
herein provided:
(i) the Company shall compute the adjusted Exercise Price and
Warrant Number in accordance with Section 6 and shall prepare a certificate
signed by the treasurer of the Company setting forth the adjusted Exercise Price
and Warrant Number and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed with any
transfer agent; and
(ii) a notice stating that the Exercise Price and Warrant
Number have been adjusted and setting forth the adjusted Exercise Price and
Warrant Number shall forthwith be required, and as soon as practicable after it
is required, such notice (together with a copy of the certificate prepared under
Section 6(o)(i) hereof) shall be mailed by the Company to the Holder of the
Warrant at its last address as shall appear in the Warrant Register (as defined
in Section 7(a)).
(p) In case:
(i) the Company shall declare a dividend or other distribution
on its Common Stock (other than a dividend payable exclusively in cash that
would not cause an adjustment to the Exercise Price to take place pursuant to
Section 6 above);
(ii) the Company or any of its subsidiaries shall make a tender
offer for the Common Stock;
(iii) the Company shall authorize the granting to all Holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class;
(iv) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock), or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(v) of the voluntary of involuntary dissolution, liquidation
or winding up of the Company;then the Company shall cause to be filed with any
warrant agent, and shall cause to be mailed to the Holder of this Warrant at its
last address as shall appear in the Warrant Register, at least ten days prior to
the effective date hereinafter specified, a notice stating (A) the date on which
a record has been taken for the purpose of such dividend, distribution or grant
of rights, options or warrants, or, if record is not to be taken, the date as of
which the identity of the holders of Common Stock of record entitled to such
dividend, distribution, rights, options or warrants is to be determined, or (B)
the date on which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up. Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(i) through (v) of this subsection (p).
(q) For the purpose of this Section 6,
(i) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued by the Company, except:
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(a) shares of Common Stock outstanding as of the date
hereof;
(b) shares of Common Stock issuable upon the exercise of
warrants, including this Warrant, which are outstanding on the date hereof;
and
(c) shares of Common Stock (and/or options, warrants or
other Common Stock purchase rights) issued or to be issued to employees,
officers or directors of, or advisors to the Company, pursuant to
compensation plans, agreements or other arrangements that are approved by
the Company's Board of Directors.
(ii) "Common Stock" shall mean the Company's Common Stock and
any other shares of capital stock of the Company of any class, or series within
a class, whether now or hereafter authorized, which has the right to participate
in the distribution of earnings or assets of the Company without limit as to
amount or percentage.
7. Transfer of Warrant.
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(a) Warrant Register. The Company will maintain a register (the
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"WARRANT REGISTER") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his address as
shown on the Warrant Register or transfer this Warrant in accordance with the
terms of this Warrant 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 actual receipt
by the Company of written notice from the Holder requesting a change of address
or the transfer of this Warrant, the Company may treat the Holder as shown on
the Warrant Register as the absolute owner of this Warrant for all purposes.
(b) Warrant Agent. The Company may, by written notice to the Holder,
-------------
appoint an agent for the purpose of maintaining the Warrant Register referred to
in subsection (a) of this Section 7, issuing the Common Stock or other
securities then issuable upon the exercise of this Warrant, exchanging this
Warrant, replacing this Warrant, or any or all of the foregoing. Thereafter,
any such registration, issuance, exchange, or replacement, as the case may be,
shall be made at the office of such agent.
(c) Transferability. Subject to the restrictions on transfer set
---------------
forth in subsection (d) of this Section 7, title to this Warrant may be
transferred, in whole or in part, without the consent of the Company, by
endorsement (by the Holder executing the Assignment Form annexed hereto) and
delivery in the same manner as a negotiable instrument transferred by
endorsement and delivery. Upon surrender of this Warrant for transfer, properly
endorsed on the Assignment Form, the Company at its expense shall issue, on the
order of the Holder, a new warrant or warrants of like tenor, in such name as
the Holder (on payment by the Holder of any applicable transfer taxes) may
direct, for the number of shares issuable upon exercise hereof. Each holder of
this Warrant, by holding it, agrees that this Warrant, when endorsed in blank,
may be deemed negotiable, and that, when this Warrant shall have been so
endorsed, the holder of this Warrant may be treated by the Company and all other
persons dealing with this Warrant as the absolute owner of this Warrant for any
purpose and as the person entitled to exercise the rights represented by this
Warrant, or to the transfer of this Warrant on the books of the Company, any
notice to the contrary notwithstanding.
(d) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that the transfer of this Warrant and the Warrant Shares is subject
to the Holder's compliance with the provisions of the Securities Act and any
applicable state securities laws in respect of any such transfer.
(ii) The certificate or certificates representing any Warrant
Shares acquired upon exercise of this Warrant, and any Common Stock or other
securities issued in respect of such Warrant Shares upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall be
stamped or otherwise imprinted with the following legend (unless such a legend
is no longer required under the Securities Act):
THE TRANSACTION IN WHICH THE SHARES REPRESENTED BY THIS CERTIFICATE
WERE ACQUIRED WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL BE VALID
OR EFFECTIVE UNLESS SUCH TRANSFER IS MADE (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS, OR (B) IN A TRANSACTION THAT
QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND FOR WHICH AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH
EFFECT HAS BEEN PROVIDED.
(iii) The Company shall not be required to register the transfer
of this Warrant or the Warrant Shares on the books of the Company unless the
Company shall have been provided with an opinion of counsel in form and
substance reasonably satisfactory to the Company that this Warrant or the
Warrant Shares, as applicable, are eligible for transfer without registration
under the Securities Act; provided, however, that no such opinion of counsel
shall be necessary in order to effectuate a transfer of this Warrant or any of
the Warrant Shares (A) in accordance with the provisions of Rule 144(k)
promulgated under the Securities Act or (B) with respect to the Warrant Shares,
in accordance with the intended method of disposition set forth in any
registration statement filed by the Company and covering the Warrant Shares
pursuant to the Registration Rights Agreement.
(iv) The conditions precedent imposed by this subsection (d)
upon the transferability of this Warrant and the Warrant Shares shall cease and
terminate as to this Warrant and any of the Warrant Shares (A) when such
securities shall have been registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration statement covering
such securities, (B) at such time as the Company shall have been provided with
an opinion of counsel in form and substance reasonably satisfactory to the
Company to the effect that the restrictive legend on such securities is no
longer required in order to establish compliance with the provisions of the
Securities Act, or (C) when such securities are transferred pursuant to Rule 144
or become transferable in accordance with the provisions of Rule 144(k)
promulgated under the Securities Act. Whenever the conditions imposed by this
subsection (d) shall terminate as hereinabove provided with respect to any of
the Warrant Shares, the holder of any such securities bearing the legend set
forth in Section 7(d)(ii) shall be entitled to receive from the Company, without
expense (except for the payment of any applicable transfer taxes) and as
expeditiously as possible, new stock certificates not bearing such legend.
8. Covenants of the Company. The Company hereby covenants and agrees that:
------------------------
(a) during the term of this Warrant, the Company will reserve a
sufficient number of shares of authorized and unissued Common Stock to provide
for the issuance of Common Stock, which shares shall be duly authorized, fully
paid and non-assessable, upon the exercise of this Warrant and, from time to
time, will take all steps necessary to amend its Certificate of Incorporation to
provide sufficient reserves of shares of Common Stock issuable upon exercise of
the Warrant;
(b) the Company will not, by amendment of its Certificate of
Incorporation or through reorganization, consolidation, merger, dissolution or
sale of assets, or by any other voluntary act, avoid or seek to avoid the
observance or performance of any of the covenants, stipulations or conditions to
be observed or performed hereunder by the Company;
(c) all shares that may be issued upon exercise of this Warrant and
payment of the Exercise Price, in accordance with the provisions set forth
herein, will be free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein); and
(d) issuance of this Warrant by the Company shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the exercise of this Warrant and payment of the Exercise
Price, in accordance with the provisions set forth herein.
9. Notices. Notices under this Warrant to the Company and the Holder shall be
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provided in the manner, and to the addresses of the Company and the Holder, set
forth in the Registration Rights Agreement, or to such other
9
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
10. Amendments. Neither this Warrant 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.
11. Governing Law. This Warrant shall be governed in all respects by the
-------------
internal laws of the State of Delaware as applied to contracts entered into
solely between residents of, and to be performed entirely within, such state,
and without reference to principles of conflicts of laws or choice of laws.
12. Successors and Assigns. This Warrant shall be binding upon the Company's
----------------------
successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and assigns.
13. Attorney's Fees. In the event of a dispute with regard to the
---------------
interpretation of this Warrant, the prevailing party may collect the cost of
reasonable attorney's fees, litigation expenses or such other expenses as may be
incurred in the enforcement of the prevailing party's rights hereunder.
IN WITNESS WHEREOF, CONCURRENT COMPUTER CORPORATION has caused this Warrant
to be executed by its authorized officer.
Dated: March 22, 2004
CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Executive Vice President and CFO
---------------------------------
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