EXHIBIT 10.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
SERIES A WARRANT
TO
PURCHASE COMMON STOCK
OF
RAPTOR NETWORKS TECHNOLOGY, INC.
ISSUE DATE: APRIL 1, 2004 WARRANT NO. A-__
THIS CERTIFIES that _________________________or any subsequent holder
hereof (the "HOLDER"), has the right to purchase from RAPTOR NETWORKS
TECHNOLOGY, INC., a Colorado corporation (the "COMPANY"), up to ____________
fully paid and nonassessable shares of the Company's common stock, par value
$0.001 per share (the "COMMON STOCK"), subject to adjustment as provided herein,
at a price per share equal to the Exercise Price (as defined below), at any time
beginning on the date on which this Warrant is issued (the "ISSUE DATE") and
ending at 5:00 p.m., eastern time, on the sixtieth (60th) day following the
Effective Date (the "EXPIRATION DATE"). This Warrant is issued pursuant to a
Securities Purchase Agreement, dated as of April 1, 2004 (the "SECURITIES
PURCHASE AGREEMENT"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Securities Purchase
Agreement.
1. EXERCISE.
(a) RIGHT TO EXERCISE; EXERCISE PRICE. The Holder shall have
the right to exercise this Warrant at any time and from time to time during the
period beginning on the Issue Date and ending on the Expiration Date as to all
or any part of the shares of Common Stock covered hereby (the "WARRANT SHARES").
The "EXERCISE PRICE" for each Warrant Share purchased by the Holder upon the
exercise of this Warrant shall be equal to $2.25, subject to adjustment for the
events specified in Section 4 below.
(b) EXERCISE NOTICE. In order to exercise this Warrant, the
Holder shall send by facsimile transmission, at any time prior to 5:00 p.m.,
eastern time, on the Business Day on which the Holder wishes to effect such
exercise (the "EXERCISE DATE"), to the Company an executed copy of the notice of
exercise in the form attached hereto as EXHIBIT A (the "EXERCISE NOTICE"), the
original Warrant and the Exercise Price. The Exercise Notice shall also state
the name or names (with address) in which the shares of Common Stock that are
issuable on such exercise shall be issued. If shares are to be issued in the
name of a person other than the Holder, the Holder will pay all transfer taxes
payable with respect thereto.
(c) HOLDER OF RECORD. The Holder shall, for all purposes, be
deemed to have become the holder of record of the Warrant Shares specified in an
Exercise Notice on the Exercise Date specified therein, irrespective of the date
of delivery of such Warrant Shares. Except as specifically provided herein,
nothing in this Warrant shall be construed as conferring upon the Holder hereof
any rights as a stockholder of the Company prior to the Exercise Date.
(d) CANCELLATION OF WARRANT. This Warrant shall be canceled
upon its exercise and, if this Warrant is exercised in part, the Company shall,
at the time that it delivers Warrant Shares to the Holder pursuant to such
exercise as provided herein, issue a new Warrant, and deliver to the Holder a
certificate representing such new Warrant, with terms identical in all respects
to this Warrant (except that such new Warrant shall be exercisable into the
number of shares of Common Stock with respect to which this Warrant shall remain
unexercised); provided, however, that the Holder shall be entitled to exercise
all or any portion of such new Warrant at any time following the time at which
this Warrant is exercised, regardless of whether the Company has actually issued
such new Warrant or delivered to the Holder a certificate therefor.
2. DELIVERY OF WARRANT SHARES UPON EXERCISE.
Upon receipt of an Exercise Notice pursuant to paragraph 1
above, the Company shall, no later than the close of business on the later to
occur of (i) the third (3rd) Business Day following the Exercise Date set forth
in such Exercise Notice and (ii) the date on which the Company has received
payment of the Exercise Price, issue and deliver or caused to be delivered to
the Holder the number of Warrant Shares as shall be determined as provided
herein. The Company shall effect delivery of Warrant Shares to the Holder by, as
long as the Transfer Agent participates in the Depository Trust Company ("DTC")
Fast Automated Securities Transfer program ("FAST"), crediting the account of
the Holder or its nominee at DTC (as specified in the applicable Exercise
Notice) with the number of Warrant Shares required to be delivered, no later
than the close of business on such Delivery Date. In the event that the Transfer
Agent is not a participant in FAST, or if the Warrant Shares are not otherwise
eligible for delivery through FAST, or if the Holder so specifies in an Exercise
Notice or otherwise in writing on or before the Exercise Date, the Company shall
effect delivery of Warrant Shares by delivering to the Holder or its nominee
physical certificates representing such Warrant Shares, no later than the close
of business on such Delivery Date.
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3. FAILURE TO DELIVER WARRANT SHARES.
(a) In the event that the Company fails for any reason to
deliver to the Holder the number of Warrant Shares specified in the applicable
Exercise Notice on or before the Delivery Date therefor (an "EXERCISE DEFAULT"),
and such default continues for five (5) Business Days following delivery of a
written notice of such default by the Holder to the Company, the Company shall
pay to the Holder payments ("EXERCISE DEFAULT PAYMENTS") in the amount of (i)
(N/365) MULTIPLIED BY (ii) the aggregate Exercise Price of the Warrant Shares
which are the subject of such Exercise Default MULTIPLIED BY (iii) the lower of
fifteen percent (15%) and the maximum rate permitted by applicable law (the
"DEFAULT INTEREST RATE"), where "N" equals the number of days elapsed between
the original Delivery Date of such Warrant Shares and the date on which all of
such Warrant Shares are issued and delivered to the Holder. Cash amounts payable
hereunder shall be paid on or before the fifth (5th) Business Day of the
calendar month following the calendar month in which such amount has accrued.
(b) The Holder's rights and remedies hereunder are cumulative,
and no right or remedy is exclusive of any other. In addition to the amounts
specified herein, the Holder shall have the right to pursue all other remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief). Nothing herein shall limit the
Holder's right to pursue actual damages for the Company's failure to issue and
deliver Warrant Shares on the applicable Delivery Date (including, without
limitation, damages relating to any purchase of Common Stock by the Holder to
make delivery on a sale effected in anticipation of receiving Warrant Shares
upon exercise, such damages to be in an amount equal to (A) the aggregate amount
paid by the Holder for the Common Stock so purchased MINUS (B) the aggregate
amount of net proceeds, if any, received by the Holder from the sale of the
Warrant Shares issued by the Company pursuant to such exercise).
4. ADJUSTMENTS TO EXERCISE PRICE.
(a) ADJUSTMENT UPON SUBDIVISION OR COMBINATION OF COMMON
STOCK. If the Company, at any time after the Issue Date, subdivides (by any
stock split, stock dividend, recapitalization, reorganization, reclassification
or otherwise) its shares of Common Stock into a greater number of shares, then
after the date of record for effecting such subdivision, the Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced. If
the Company, at any time after the Issue Date, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionally increased.
(b) DISTRIBUTIONS. If the Company shall declare or make any
distribution of its assets (or rights to acquire its assets) to holders of
Common Stock as a partial liquidating dividend or otherwise (including without
limitation any dividend or distribution to the Company's stockholders in cash or
shares (or rights to acquire shares) of capital stock of a subsidiary) (a
"DISTRIBUTION"), the Company shall deliver written notice of such Distribution
(a "DISTRIBUTION NOTICE") to the Holder at least fifteen (15) Business Days
prior to the earlier to occur of (i) the record date for determining
stockholders entitled to such Distribution (the "RECORD DATE") and (ii) the date
on which such Distribution is made (the "DISTRIBUTION DATE"). The Holder shall
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be entitled, at its option (to be exercised by written notice delivered to the
Company on or before the fifteenth (15th) Business Day following the date on
which a Distribution Notice is delivered to the Holder), either (A) upon any
exercise of this Warrant on or after the Record Date, to be entitled to receive
on the Distribution Date (for any exercise effected on or prior to the
Distribution Date) or the applicable Delivery Date (for any exercise effected
after the Distribution Date), the amount of such assets which would have been
payable to the holder with respect to the shares of Common Stock issuable upon
such exercise had the Holder been the holder of such shares of Common Stock on
the Record Date or (B) upon any exercise of this Warrant on or after the Record
Date, to reduce the Exercise Price applicable to such exercise by reducing the
Exercise Price in effect on the Business Day immediately preceding the Record
Date by an amount equal to the fair market value of the assets to be distributed
divided by the number of shares of Common Stock as to which such Distribution is
to be made, such fair market value to be reasonably determined by a nationally
recognized investment banking firm retained by the Company and reasonably
acceptable to the holders of a majority of the Outstanding Registrable
Securities.
(c) MAJOR TRANSACTIONS. In the event of a merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock of the Company shall be changed into the same or
a different number of shares of the same or another class or classes of stock or
securities or other assets of the Company or another entity or the Company shall
sell all or substantially all of its assets (each of the foregoing being a
"MAJOR TRANSACTION"), the Company will give the Holder at least thirty (30) days
written notice prior to the closing of such Major Transaction; PROVIDED,
HOWEVER, that the Company shall publicly disclose the terms of any such Major
Transaction on or before the date on which it delivers notice of a Major
Transaction to the Holder. Upon the occurrence of a Major Transaction, (i) the
Holder shall be permitted to exercise this Warrant in whole or in part at any
time prior to the record date for the receipt of such consideration and shall be
entitled to receive, for each share of Common Stock issued to Holder for such
exercise, the same per share consideration paid to the other holders of Common
Stock in connection with such Major Transaction, and (ii) if and to the extent
that the Holder retains any portion ,of this Warrant following such record date,
the Company will cause the surviving or, in the event of a sale of assets,
purchasing entity, as a condition precedent to such Major Transaction, to assume
the obligations of the Company under this Warrant, with such adjustments to the
Exercise Price and the securities covered hereby as are deemed appropriate by
the Company's Board of Directors in order to preserve the economic benefits of
this Warrant to the Holder.
(d) ADJUSTMENTS; ADDITIONAL SHARES, SECURITIES OR ASSETS. In
the event that at any time, as a result of an adjustment made pursuant to this
paragraph 4, the Holder of this Warrant shall, upon exercise of this Warrant,
become entitled to receive securities or assets (other than Common Stock) then,
wherever appropriate, all references herein to shares of Common Stock shall be
deemed to refer to and include such shares and/or other securities or assets;
and thereafter the number of such shares and/or other securities or assets shall
be subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this paragraph 4. Any adjustment
made herein that results in a decrease in the Exercise Price shall also effect a
proportional increase in the number of shares of Common Stock into which this
Warrant is exercisable.
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5. FRACTIONAL INTERESTS.
No fractional shares or scrip representing fractional shares
shall be issuable upon the exercise of this Warrant. If, on exercise of this
Warrant, the Holder hereof would be entitled to a fractional share of Common
Stock or a right to acquire a fractional share of Common Stock, the Company
shall, in lieu of issuing any such fractional share, pay to the Holder an amount
in cash equal to the product resulting from multiplying such fraction by the
Market Price (as defined in the Series B Warrants) as of the Exercise Date.
6. TRANSFER OF THIS WARRANT.
The Holder may sell, transfer, assign or otherwise dispose of
this Warrant, in whole or in part, as long as such sale or other disposition is
made pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act, and applicable state securities
laws, and is otherwise made in accordance with the applicable provisions of the
Securities Purchase Agreement. Upon such transfer or other disposition, the
Holder shall deliver this Warrant to the Company together with a written notice
to the Company, substantially in the form of the Transfer Notice attached hereto
as Exhibit B (the "TRANSFER NOTICE"), indicating the person or persons to whom
this Warrant shall be transferred and, if less than all of this Warrant is
transferred, the number of Warrant Shares to be covered by the part of this
Warrant to be transferred to each such person. Within three (3) Business Days of
receiving a Transfer Notice and the original of this Warrant, the Company shall
deliver to the each transferee designated by the Holder a Warrant or Warrants of
like tenor and terms for the appropriate number of Warrant Shares and, if less
than all this Warrant is transferred, shall deliver to the Holder a Warrant for
the remaining number of Warrant Shares.
7. BENEFITS OF THIS WARRANT.
This Warrant shall be for the sole and exclusive benefit of
the Holder of this Warrant and nothing in this Warrant shall be construed to
confer upon any person other than the Holder of this Warrant any legal or
equitable right, remedy or claim hereunder.
8. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity reasonably satisfactory to the Company, and upon
surrender of this Warrant, if mutilated, the Company shall execute and deliver a
new Warrant of like tenor and date.
9. NOTICE OR DEMANDS.
Any notice, demand or request required or permitted to be
given by the Company or the Holder pursuant to the terms of this Warrant shall
be in writing and shall be deemed delivered (i) when delivered personally or by
verifiable facsimile transmission, unless such delivery is made on a day that is
not a Business Day, in which case such delivery will-be deemed to be made on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to an overnight courier and (iii) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
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IF TO THE COMPANY:
Raptor Networks Technology, Inc.
00 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx X. Xxxxxxx, Esq.
000 X.X. Xxxxx Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to the Holder, to such address as shall be designated by the Holder in
writing to the Company.
10. TAXES.
(a) The issue of stock certificates on exercises of this
Warrant shall be made without charge to the exercising Holder for any tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of stock in any name other than that of the Holder of any Warrant
exercised; and the Company shall not be required to issue or deliver any such
stock certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the reasonable satisfaction of the Company that such tax has been
paid.
(b) Notwithstanding any other -provision of this Warrant or
any other Transaction Document, for income tax purposes, any assignee or
transferee shall agree that the Company and the Transfer Agent shall be
permitted to withhold from any amounts payable to such assignee or transferee
any taxes required by law to be withheld from such amounts. Unless exempt from
the obligation to do so, each assignee or transferee shall, upon request,
execute and deliver to the Company or the Transfer Agent, as applicable, a
properly completed Form W-8 or W-9, indicating that such assignee or transferee
is not subject to back-up withholding for United States Federal income tax
purposes.
11. APPLICABLE LAW.
This Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within the State of
New York.
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12. AMENDMENTS.
No amendment, modification or other change to, or waiver of
any provision of, this Warrant may be made unless such amendment, modification
or change is (A) set forth in writing and is signed by the Company and the
Holder and (B) agreed to in writing by the holders of at least sixty-six percent
(66%) of the number of shares into which the Warrants are exercisable, it being
understood that upon the satisfaction of the conditions described in (A) and (B)
above, each Warrant (including any Warrant held by a Holder who did not execute
the agreement specified in (B) above) shall be deemed to incorporate any
amendment, modification, change or waiver effected thereby as of the effective
date thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company has duly executed and delivered this
Warrant as of the Issue Date.
RAPTOR NETWORKS TECHNOLOGY, INC.
By:
-----------------------------
Xxxxxx X. Xxxxxxxxxxxxxxx
Chief Executive Officer
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EXHIBIT A TO WARRANT
--------------------
EXERCISE NOTICE
---------------
The undersigned Holder hereby irrevocably exercises the right to
purchase _____ of the shares of Common Stock ("WARRANT SHARES") of RAPTOR
NETWORKS TECHNOLOGY, INC. evidenced by the attached Warrant (the "WARRANT").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Warrant.
Number of Warrant Shares: ___________________________
Exercise Price: $ __________________________________
Date: _______________________________________________
_____________________________________________________
Name of Registered Holder
By: _________________________________________________
Name:
Title:
EXHIBIT B TO WARRANT
--------------------
TRANSFER NOTICE
---------------
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby sells,
assigns and transfers unto the person or persons named below the right to
purchase ______ shares of the Common Stock of RAPTOR NETWORKS TECHNOLOGY, INC.
evidenced by the attached Warrant.
Date: _______________________________________________
_____________________________________________________
Name of Registered Holder
By: _________________________________________________
Name:
Title:
Transferee Name and Address: _________________________________________
_________________________________________
_________________________________________
