EXHIBIT 10.3
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THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO SUCH SECURITIES OR DELIVERY OF AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH OFFER, SALE
OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE SECURITIES ACT.
ePresence, Inc.
Common Stock Purchase Warrant
Expiring March 5, 2005
ePresence, Inc. (formerly Banyan Systems Incorporated) (the "Company"), a
Massachusetts corporation, for value received, hereby certifies that HarbourVest
Venture Partners V-Direct Fund L.P. ("HarbourVest"), or registered assigns, is
entitled to purchase from the Company 657,900 duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock, par value $.01 per share,
of the Company (the "Warrant Shares") at an exercise price per share of $5.00
(as adjusted as provided herein, the "Exercise Price"), at any time or from time
to time prior to 5:00 p.m., New York City time, on March 5, 2005, all subject to
the terms, conditions and adjustments set forth below in this Warrant. As a
result of the automatic conversion of the Company's Series C Convertible
Preferred Stock into Common Stock pursuant to the terms of the Series C
Convertible Preferred Stock, this Warrant replaces the Series C Convertible
Preferred Stock Purchase Warrant granted to HarbourVest on March 5, 1998.
Section 1. Exercise of Warrants.
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(a) Upon the terms and subject to the conditions set forth in this Warrant,
each holder of Warrants shall have the right, which may be exercised until 5:00
p.m., New York City time, on March 5, 2005 (the "Expiration Time"), to receive
from the Company the number of fully paid and nonassessable Warrant Shares which
the holder may at the time be entitled to receive upon exercise of this Warrant
and payment of the Exercise Price then in effect for such Warrant Shares. Each
Warrant not exercised prior to the Expiration Time shall be deemed automatically
exercised in accordance with the last sentence of the following paragraph (even
if the form of election to purchase attached hereto is not delivered)
immediately prior to such Expiration Time.
(b) Warrants may be exercised upon surrender to the Company of this Warrant
with the form of election to purchase attached hereto duly filed in and signed
and upon payment to the Company of the Exercise Price for each of the Warrant
Shares in respect of which such Warrants are then exercised. Payment of the
aggregate Exercise Price shall be made at the principal offices of the Company
by certified or official bank check to the order of the Company. In lieu of
exercising any Warrant by paying in full the Exercise Price plus transfer taxes
(if applicable
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pursuant to Section 2), if any, the holder may, from time to time, convert such
Warrant, in whole or in part, into such number of Warrant Shares determined by
dividing (a) the aggregate Current Market Value of the number of Warrant Shares
represented by such Warrant, minus the sum of the aggregate Exercise Price for
such Warrant Shares plus transfer taxes, if any, by (b) the Current Market Value
of one Warrant Share (such conversion, a "Cashless Exercise").
Current Market Value at any date means:
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(i) if the Company's Common Stock is not registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as determined in good
faith by the Company's Board of Directors, upon review of the relevant facts,
(ii) if the Company's Common Stock is registered under the Exchange Act,
the product of (A) the number of shares of the Company's Common Stock issuable
upon conversion of one Warrant Share times (B) the average of the daily closing
sale prices (or if sale prices are not available, bid prices) for each business
day during the period commencing 10 business days before the date one day prior
to the exercise date and ending on the date one day prior to date of exercise.
(c) Subject to the provisions of Section 2 hereof, upon such surrender of
Warrants and (other than in a Cashless Exercise) payment of the Exercise Price,
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the Warrant holder and in such name or names as
the Warrant holder may designate, a certificate or certificates for the number
of full Warrant Shares issuable upon the exercise of such Warrants together with
cash as provided in Section 1(e); provided, however, that if any consolidation,
merger, transfer or lease of assets is proposed to be effected by the Company as
described in Section 5 hereof, or a tender offer or an exchange offer for
Warrant Shares shall be made, upon such surrender of Warrants and payment of the
Exercise Price as aforesaid, the Company shall, as soon as possible, but in any
event not later than three business days thereafter, issue and cause to be
delivered the full number of Warrant Shares issuable upon the exercise of such
Warrants in the manner described in this sentence and/or any other consideration
to be issued to such Warrant holder pursuant to Section 5 hereof together with
cash as provided in Section 1(e). Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Warrant Shares as of
the date of the surrender of such Warrants and (other than in a Cashless
Exercise) payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part, and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable upon such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining Warrant
or Warrants will be issued and delivered pursuant to the provisions of this
Section 1.
(e) The Company shall not be required to issue fractional Warrant Shares
upon the exercise of Warrants. In lieu of any fractional Warrant Share, the
Company shall make a cash payment equal to the Exercise Price multiplied by such
fraction.
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(f) Until the exercise of this Warrant, the registered holder of this
Warrant shall not have any rights by virtue hereof as a stockholder of the
Company.
Section 2. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant or any certificates for Warrant Shares in a name other than
that of the registered holder of a Warrant surrendered upon the exercise of such
Warrant, and the Company shall not be required to issue or deliver such Warrant
or certificates for Warrant Shares unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
Section 3. Mutilated or Missing Warrant. Upon receipt by the Company of
evidence and indemnity satisfactory to it of the loss, theft, destruction or
mutilation of, and upon surrender and cancellation of this Warrant, if
mutilated, the Company will make and deliver in lieu of this Warrant a new
Warrant of the same series and of like tenor of this Warrant.
Section 4. Reservation of Warrant Shares. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants. The Company covenants that all Warrant Shares which may
be issued upon exercise of Warrants will, upon payment of the Exercise Price
therefor and the issuance thereof, be fully paid, nonassessable, free of
preemptive rights, free from all taxes (subject to Section 2 hereof) and free
from all liens, charges and security interests, created by or through the
Company, with respect to the issue thereof.
Section 5. Reorganization of the Company. If the Company consolidates or
mergers with or into, or transfers or leases all or substantially all its assets
to, any person, upon consummation of such transaction the Warrants shall
automatically become exercisable for the kind and amount of securities, cash or
other assets which the holder of a Warrant would have owned immediately after
the consolidation, merger, transfer or lease if the holder had exercised the
Warrant (and, if the holder so elects, if the holder had exercised the Warrant
and converted the Warrant Shares issuable upon exercise of such Warrant)
immediately before the effective date of the transaction. Concurrently with the
consummation of such transaction, the corporation formed by or surviving any
such consolidation or merger if other than the Company, or the person to which
such sale or conveyance shall have been made, shall enter a Warrant Agreement
(in form and substance satisfactory to holders of Warrants to purchase at least
two thirds of the Warrant Shares (excluding for this purpose any Warrants that
were previously exercised at such time)) so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Section 5.
Section 6. Adjustments to Exercise Price. If the Company at any time
while this Warrant, or any portion thereof, remains outstanding and unexpired
shall split, subdivide or combine the Common Stock into a different number of
securities of the same class, the Exercise
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Price for such securities shall be proportionately decreased in the case of a
split or subdivision or proportionately increased in the case of a combination
and the number of the securities as to which purchase rights under this Warrant
exist shall be increased or decreased proportionately in accordance with such
split subdivision or combination.
Section 7. Governing Law. THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF MASSACHUSETTS.
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IN WITNESS WHEREOF, ePresence, Inc. has caused this Warrant to be duly
executed, as of June 30, 2000.
ePRESENCE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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Form of Election to Purchase
(To be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise Warrants containing
the right to receive _______ shares of Common Stock and herewith (check item)
tenders payment for such shares to the order of ePresence, Inc. in the amount of
_______ per share of Common Stock in accordance with the terms hereof, as
follows:
____ $______ by certified or official bank check to the order of
ePresence, Inc.; or
____ $______ by surrender of Warrant Shares having a Current Market
Value (as defined in the Warrant Agreement) of $_________.
The undersigned requests that a certificate for such shares be registered
in the name of ___________________________, whose address is
_________________________________, and that such shares be delivered to
______________________________, whose address is _____________________________.
If said numbers of shares is less than all of the shares of Common Stock
purchaseable under the Warrant, the undersigned requests that a new Warrant
representing the remaining balance of such Warrants be registered in the name
of_________________________, whose address is ____________________________, and
that such shares be delivered to __________________________, whose address is
______________________________.
Date: __________ Your Signature: ___________________________
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