Exhibit 4.1
1
Exhibit A
---------
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT, SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS.
_____________________________________________
eGAIN COMMUNICATIONS CORPORATION
COMMON STOCK PURCHASE WARRANT
_____________________________________________
This certifies that, for good and valuable consideration, eGAIN
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company"), grants to
[insert name of warrant holder] (the "Warrantholder"), the right to subscribe
for and purchase from the Company, during the Exercise Period (as hereinafter
defined),[insert number in words (insert number)] validly issued, fully paid and
nonassessable shares, par value $.001, of Common Stock of the Company (the
"Warrant Shares"), at the exercise price per share of $9.2517 (subject to
adjustment as set forth below, the "Exercise Price"), all subject to the terms,
conditions and adjustments herein set forth. Capitalized terms used herein
shall have the meanings ascribed to such terms in Section 9 below.
1. Warrant. This Warrant is issued pursuant to, and in accordance with,
-------
Section 2.1 of the Securities Purchase Agreement by and among the Company, the
Warrantholder and certain other investors in the Company, dated as of August 7,
2000 (the "Purchase Agreement"), and is subject to the terms thereof.
2. Exercise of Warrant; Payment of Taxes.
-------------------------------------
2.1 Exercise of Warrant. Subject to the terms and conditions set forth
-------------------
herein, this Warrant may be exercised at any time, in whole or in part, by the
Warrantholder during the Exercise Period by:
(a) the surrender of this Warrant to the Company, with a duly executed
Exercise Form, and
(b) subject to Section 2.2 below, the delivery of payment to the Company,
for the account of the Company, by cash, wire transfer,
2
certified or official bank check or any other means approved by the Company, of
the aggregate Exercise Price in lawful money of the United States of America.
The Company agrees that the Warrant Shares shall be deemed to be issued to the
Warrantholder 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.
2.2 Conversion Right.
----------------
(a) In lieu of the payment of the aggregate Exercise Price, the
Warrantholder shall have the right (but not the obligation), to require the
Company to convert this Warrant, in whole or in part, into shares of Common
Stock (the "Conversion Right") as provided for in this Section 2.2. Upon
exercise of the Conversion Right, the Company shall deliver to the Warrantholder
(without payment by the Warrantholder of any of the Exercise Price) in
accordance with Section 2.1(b) that number of shares of Common Stock equal to
the quotient obtained by dividing (i) the value of the Warrant or portion
thereof at the time the Conversion Right is exercised (determined by subtracting
the aggregate Exercise Price at the time of the exercise of the Conversion Right
from the aggregate Current Market Price for the shares of Common Stock issuable
upon exercise of the Warrant at the time of the exercise of the Conversion
Right) by (ii) the Current Market Price of one share of Common Stock at the time
of the exercise of the Conversion Right.
(b) The Conversion Right may be exercised by the Warrantholder on any
Business Day prior to the end of the Exercise Period by surrender of this
Warrant to the Company, with a duly executed Exercise Form with the conversion
section completed, exercising the Conversion Right and specifying the total
number of shares of Common Stock that the Warrantholder will be issued pursuant
to such conversion.
2.3 Warrant Shares Certificate. A stock certificate or certificates for
--------------------------
the Warrant Shares specified in the Exercise Form shall be delivered to the
Warrantholder within five (5) Business Days after receipt of the Exercise Form
by the Company and, unless the Conversion Right is exercised, the payment by the
Warrantholder of the aggregate Exercise Price. If this Warrant is exercised
only in part, the Company shall, at the time of delivery of the stock
certificate or certificates, deliver to the Warrantholder a new Warrant
evidencing the right to purchase the remaining Warrant Shares, which new Warrant
shall in all other respects be identical to this Warrant.
2.4 Payment of Taxes. The Company will pay all documentary stamp or other
----------------
issuance taxes, if any, attributable to the issuance of Warrant Shares upon the
exercise of this Warrant; except that the Company shall not be required to pay
3
any tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any Warrants or Warrant certificates or Warrant Shares in a
name other than that of the then Warrantholder as reflected upon the books of
the Company.
3. Restrictions on Transfer; Restrictive Legends.
---------------------------------------------
3.1 At no time may this Warrant or the Warrant Shares be offered, sold,
transferred, pledged or otherwise disposed of, in whole or in part, to any
Person except in accordance with applicable federal and state securities laws.
3.2 Except as otherwise permitted by this Section 3, each Warrant (and
each Warrant issued in substitution for any Warrant pursuant to Section 6) and
each certificate for Warrant Shares issued upon the exercise of any Warrant
shall be stamped or otherwise imprinted with a legend in substantially the form
as set forth on the cover of this Warrant. Notwithstanding the foregoing, the
Warrantholder may require the Company to issue a Warrant or a certificate for
Warrant Shares, in each case without a legend, if (i), the resale of such
Warrant or such Warrant Shares, as the case may be, has been registered under
the Securities Act (and such registration remains in effect), (ii) the
Warrantholder has delivered to the Company an opinion of legal counsel (from a
firm reasonably satisfactory to the Company), which is addressed to the Company
and is reasonably satisfactory in form and substance to the Company's counsel,
to the effect that such registration is not required with respect to the resale
of such Warrant or such Warrant Shares, as the case may be, or (iii) such
Warrant or Warrant Shares may then be sold pursuant to Rule 144 (or any
successor provision then in effect) under the Securities Act.
4. Reservation and Registration of Shares. The Company covenants and
--------------------------------------
agrees as follows:
(a) All Warrant Shares that are issued upon the exercise of this Warrant
shall, upon issuance, be validly issued, fully paid and non-assessable, not
subject to any preemptive rights, and be free from all taxes, liens, security
interests, charges, and other encumbrances with respect to the issuance thereof,
other than taxes in respect of any transfer occurring contemporaneously with
such issue.
(b) The Company shall at all times have authorized and reserved, and shall
keep available and free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant.
(c) The Company shall not, by amendment of its Amended and Restated
Certificate of Incorporation or through any reorganization, transfer of assets,
spin-off, consolidation, merger, dissolution, issue or sale of securities or any
other action or inaction, seek to avoid the observance or performance of any of
4
the terms of this Warrant, and shall at all times in good faith assist in
performing and giving effect to the terms hereof and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against dilution or other impairment.
5. Special Adjustment to Exercise Price; Anti-dilution Adjustments. The
---------------------------------------------------------------
Exercise Price and the number of Warrant Shares to be received upon exercise of
this Warrant shall be subject to adjustment as follows:
5.1 Special Adjustment to Exercise Price. If 122% of the average closing
------------------------------------
bid price per share of Common Stock quoted on NASDAQ or, if not then traded on
NASDAQ, such other exchange, market or system on which the Common Stock is then
listed or traded, on the twenty (20) consecutive trading days immediately
preceding and including the first anniversary of the date hereof (the "Adjusted
Market Value") is less than the Exercise Price, the Exercise Price shall be
adjusted to the greater of (i) 122% of the Adjusted Market Value, or (ii)
$5.6875 (as adjusted below).
5.2 Dividend, Subdivision, Combination or Reclassification of Common
----------------------------------------------------------------
Stock. If the Company shall at any time or from time to time, after the
issuance of this Warrant but prior to the exercise hereof, (w) make a dividend
or distribution on the outstanding shares of Common Stock payable in Capital
Stock, (x) subdivide the outstanding shares of Common Stock into a larger number
of shares, (y) combine the outstanding shares of Common Stock into a smaller
number of shares or (z) issue any shares of its Capital Stock in a
reclassification of the Common Stock (other than any such event for which an
adjustment is made pursuant to another clause of this Section 5), then, and in
each such case, (A) the aggregate number of Warrant Shares for which this
Warrant is exercisable (the "Warrant Share Number") immediately prior to such
event shall be adjusted (and any other appropriate actions shall be taken by the
Company) so that the Warrantholder shall be entitled to receive upon exercise of
this Warrant the number of shares of Common Stock or other securities of the
Company that it would have owned or would have been entitled to receive upon or
by reason of any of the events described above, had this Warrant been exercised
immediately prior to the occurrence of such event and (B) the Exercise Price
payable upon the exercise of this Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustment by a fraction, the numerator
of which shall be the Warrant Share Number immediately prior to such adjustment,
and the denominator of which shall be the Warrant Share Number immediately
thereafter. An adjustment made pursuant to this Section 5.1 shall become
effective retroactively (x) in the case of any such dividend or distribution, to
a date immediately following the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive such
dividend or distribution or (y) in the case of any such subdivision, combination
or reclassification, to the close of business on the day upon which such
corporate action becomes effective.
5
5.3 Issuances Below Market Price.
----------------------------
(a) If the Company shall at any time or from time to time, after the
issuance of this Warrant but prior to the exercise hereof, issue or sell (such
issuance or sale, a "New Issuance") any shares of Common Stock or Common Stock
Equivalents at a price per share of Common Stock (the "New Issue Price") that is
less than the Current Market Price then in effect as of the record date or Issue
Date (as defined below), as the case may be (the "Relevant Date") (treating the
price per share of Common Stock, in the case of the issuance of any Common Stock
Equivalent, as equal to (x) the sum of the price for such Common Stock
Equivalent plus any additional consideration payable (without regard to any
anti-dilution adjustments) upon the conversion, exchange or exercise of such
Common Stock Equivalent divided by (y) the number of shares of Common Stock
initially underlying such Common Stock Equivalent), other than (i) issuances or
sales for which an adjustment is made pursuant to another subsection of this
Section 5 and (ii) issuances in connection with an Excluded Transaction, then,
----
and in each such case, (A) the Exercise Price then in effect shall be adjusted
by multiplying the Exercise Price in effect on the day immediately prior to the
-----------
Relevant Date by a fraction (I) the numerator of which shall be the sum of the
number of shares of Common Stock outstanding on the Relevant Date plus the
----
number of shares of Common Stock which the aggregate consideration received by
the Company for the total number of such additional shares of Common Stock so
issued would purchase at the Current Market Price on the Relevant Date (or, in
the case of Common Stock Equivalents, the number of shares of Common Stock which
the aggregate consideration received by the Company upon the issuance of such
Common Stock Equivalents and receivable by the Company upon the conversion,
exchange or exercise of such Common Stock Equivalents would purchase at the
Current Market Price on the Relevant Date) and (II) the denominator of which
shall be the sum of the number of shares of Common Stock outstanding on the
Relevant Date plus the number of additional shares of Common Stock issued or to
----
be issued (or, in the case of Common Stock Equivalents, the maximum number of
shares of Common Stock into which such Common Stock Equivalents initially may
convert, exchange or be exercised)and (B) the Warrant Share Number shall be
increased to equal the product of (i) the aggregate number of Warrant Shares for
which this Warrant is exercisable immediately prior to the New Issuance
multiplied by (ii) a fraction, the numerator of which shall be the Exercise
Price in effect on the day immediately prior to the Relevant Date and the
denominator of which shall be the Exercise Price in effect immediately after
such adjustment.
Such adjustment shall be made whenever such shares of Common Stock or Common
Stock Equivalents are issued, and shall become effective retroactively (x) in
the case of an issuance to the stockholders of the Company, as such, to a date
immediately following the close of business on the record date for the
determination of shareholders entitled to receive such shares of Common Stock or
Common Stock Equivalents and (y) in all other cases, on the date (the "Issue
Date") of such issuance; provided,
6
however, that the determination as to whether an adjustment is required to be
------
made pursuant to this Section 5.3 shall be made only upon the issuance of such
shares of Common Stock or Common Stock Equivalents, and not upon the subsequent
issuance of any security into which the Common Stock Equivalents convert,
exchange or may be exercised.
(b) If at any time any shares of Common Stock or Common Stock Equivalents
or any rights or options to purchase any shares of Common Stock or Common Stock
Equivalents shall be issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by the Company therefor,
without deduction therefrom of any ordinary and necessary expenses incurred or
any ordinary and necessary underwriting commissions or concessions or discounts
paid or allowed by the Company in connection therewith. If any shares of Common
Stock or Common Stock Equivalents or any rights or options to purchase any
Common Stock or Common Stock Equivalents shall be issued or sold for a
consideration other than cash, the amount of the consideration other than cash
received by the Company shall be deemed to be the Fair Market Value of such
consideration, without deduction therefrom of any ordinary and necessary
expenses incurred or any ordinary and necessary underwriting commissions or
concessions or discounts paid or allowed by the Company in connection therewith.
If any shares of Common Stock or Common Stock Equivalents or any rights or
options to purchase any shares of Common Stock or Common Stock Equivalents shall
be issued in connection with any merger of another entity into the Company or
any mandatory share exchange, the amount of consideration therefor shall be
deemed to be the Fair Market Value of the assets of the merged entity after
deducting therefrom all cash and other consideration (if any) paid by the
Company in connection with such merger or mandatory share exchange.
5.4 Certain Distributions. If the Company shall at any time or from time
---------------------
to time, after the issuance of this Warrant but prior to the exercise hereof,
distribute to all holders of shares of Common Stock (including any such
distribution made in connection with a merger or consolidation in which the
Company is the resulting or surviving Person and shares of Common Stock are not
changed or exchanged) cash, evidences of indebtedness of the Company or another
issuer, securities of the Company or another issuer or other assets (excluding
dividends or distributions payable in shares of Common Stock for which
adjustment is made under Section 5.1 and any distribution in connection with an
Excluded Transaction) or rights or warrants to subscribe for or purchase any of
the foregoing, then, and in each such case, (A) the Exercise Price then in
----
effect shall be adjusted (and any other appropriate actions shall be taken by
the Company) by multiplying the Exercise Price in effect prior to the date of
distribution by a fraction (i) the numerator of which shall be such Current
Market Price of Common Stock immediately prior to the date of distribution less
the then Fair Market Value of the portion of the cash, evidences of
indebtedness, securities or other assets so distributed or of such rights or
warrants applicable to one share of Common Stock and (ii) the denominator of
which shall be the Current Market Price of the Common Stock
7
immediately prior to the date of distribution (but such fraction shall not be
greater than one) and (B) the Warrant Share Number shall be increased by being
multiplied by a fraction (i) the numerator of which shall be the Current Market
Price of one share of Common Stock immediately prior to the record date for the
distribution of such cash, evidences of indebtedness, securities, other assets
or rights or warrants and (ii) the denominator of which shall be the Current
Market Price of one share of Common Stock immediately prior to such record date
less the Fair Market Value of the portion of such cash, evidences of
indebtedness, securities, other assets or rights or warrants so distributed.
Such adjustment shall be made whenever any such distribution is made and shall
become effective retroactively to a date immediately following the close of
business on the record date for the determination of stockholders entitled to
receive such distribution.
5.5 Other Changes. If the Company at any time or from time to time, after
-------------
the issuance of this Warrant but prior to the exercise hereof, shall take any
action affecting its Common Stock similar to or having an effect similar to any
of the actions described in any of Sections 5.2, 5.3, 5.4 or 5.9 (but not
including any action described in any such Section) and the Board of Directors
in good faith determines that it would be equitable in the circumstances to
adjust the Exercise Price and Warrant Share Number as a result of such action,
then, and in each such case, the Exercise Price and Warrant Share Number shall
be adjusted in such manner and at such time as the Board of Directors in good
faith determines would be equitable in the circumstances (such determination to
be evidenced in a resolution, a certified copy of which shall be mailed to the
Warrantholder).
5.6 No Adjustment; Par Value Minimum. Notwithstanding anything herein to
--------------------------------
the contrary, no adjustment under this Section 5 need be made to the Exercise
Price or Warrant Share Number if the Company receives written notice from the
Warrantholder that no such adjustment is required. Notwithstanding any other
provision of this Warrant, the Exercise Price shall not be adjusted below the
par value of a share of Common Stock.
5.7 Abandonment. If the Company shall take a record of the holders of
-----------
shares of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution, and shall thereafter and before the distribution
to stockholders thereof legally abandon its plan to pay or deliver such dividend
or distribution, then no adjustment in the Exercise Price or Warrant Share
Number shall be required by reason of the taking of such record.
5.8 Certificate as to Adjustments. Upon any adjustment in the Exercise
-----------------------------
Price or Warrant Share Number, the Company shall within a reasonable period (not
to exceed ten (10) days) following any of the foregoing transactions deliver to
the Warrantholder a certificate, signed by (i) the Chief Executive Officer of
the Company and (ii) the Chief Financial Officer of the Company, setting forth
in
8
reasonable detail the event requiring the adjustment and the method by which
such adjustment was calculated and specifying the adjusted Exercise Price and
Warrant Share Number then in effect following such adjustment.
5.9 Spin-off; Reorganization, Reclassification, Merger or Sale
----------------------------------------------------------
Transaction.
(a) In case of any spin-off by the Company of another Person (the "Spin-off
Entity") at any time after the issuance of this Warrant but prior to the
exercise hereof, the Company shall issue to the Warrantholder a new warrant, in
form and substance satisfactory to the Company and the Majority Warrantholders,
entitling the Warrantholder to purchase, at the exercise price equal to the
excess of the Exercise Price in effect immediately prior to such spin-off over
the adjusted Exercise Price pursuant to Section 5.3, the number of shares of
common stock or other proprietary interest in the Spin-off Entity that the
Warrantholder would have owned had the Warrantholder, immediately prior to such
spin-off, exercised this Warrant.
(b) In case of any capital reorganization, reclassification, Sale
Transaction, mandatory share exchange (other than a Sale Transaction or a
mandatory share exchange in which the Company is the surviving corporation and
in which the Common Stock is not exchanged or converted ) of the Company or
other change of outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value)
(each, a "Transaction") at any time after the issuance of this Warrant but prior
to the exercise hereof, the Company shall execute and deliver to the
Warrantholder at least twenty (20) Business Days prior to effecting such
Transaction a certificate and, if following a Transaction, the Warrant shall be
exercisable for securities of any Person other than the Company, such Person
shall, no later than simultaneously with the closing of the Transaction, issue a
certificate, stating that the Warrantholder shall have the right thereafter to
exercise this Warrant for the kind and amount of shares of stock or other
securities, property or cash receivable upon such Transaction by a holder of the
number of shares of Common Stock into which this Warrant could have been
exercised immediately prior to such Transaction, and provision shall be made
therefor in the agreement, if any, relating to such Transaction. Such
certificates shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5.9 and any equivalent thereof in any such
certificate similarly shall apply to successive transactions.
5.10 Notices. In case at any time or from time to time:
-------
(w) the Company shall declare a dividend (or other distribution) on its
shares of Common Stock;
9
(x) the Company shall authorize the granting to the holders of shares of
its Common Stock rights or warrants to subscribe for or purchase any shares of
Capital Stock or any other rights or warrants;
(y) there shall occur a spin-off or Transaction; or
(z) the Company shall take any other action that would require a vote of
the Company's stockholders;
then the Company shall mail to the Warrantholder, as promptly as possible but in
any event at least twenty (20) days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or granting of rights or warrants or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or granting of rights or
warrants are to be determined, or (B) the date on which such spin-off or
Transaction 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 Common Stock for shares of stock or other securities or property or cash
deliverable upon such spin-off or Transaction. Notwithstanding the foregoing,
in the case of any event to which Section 5.9 is applicable, the Company shall
also deliver the certificate described in such Section 5.9 to the Warrantholder
at least twenty (20) Business Days prior to effecting such reorganization or
reclassification as aforesaid.
6. Loss or Destruction of Warrant. Subject to the terms and conditions
------------------------------
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor.
7. Ownership of Warrant. The Company may deem and treat the person in
--------------------
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of
transfer.
8. Amendments. Any provision of this Warrant may be amended and the
----------
observance thereof waived only with the written consent of the Company and the
Warrantholder.
9. HSR Act. If the Warrantholder is required to make a filing pursuant to
-------
the HSR Act (an "HSR Filing") prior to the exercise of its Warrant, the exercise
shall be deemed to have occurred as of the date the Warrantholder files the HSR
Filing; provided, however, that the surrender of the Warrant to the Company, the
10
payment of the Exercise Price and the actual issuance of the Warrant Shares
shall be subject to, and shall take place on the Business Day following, the
expiration or termination of the applicable waiting period under the HSR Act.
The Warrantholder shall deliver written notice (the "HSR Notice") of its intent
to exercise the Warrant and to make an HSR Filing no later than one Business
Days prior to the date of such filing and the Company shall be required to file
its HSR Filing in connection with such exercise no later than 3 Business Days
following the receipt of the HSR Notice.
10. Definitions. As used herein, unless the context otherwise requires,
-----------
the following terms have the following respective meanings:
"Affiliate" means any Person who is an "affiliate" as defined in Rule 12b-2
---------
of the General Rules and Regulations under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
------------------
"Business Day" means any day other than a Saturday, Sunday or other day on
------------
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
-------------
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of such Person's capital stock and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock (but excluding any debt security whether or not it is exchangeable for or
convertible into such capital stock).
"Common Stock" means the Common Stock, par value $.001 per share, of the
------------
Company.
"Common Stock Equivalent" means any security or obligation which is by its
-----------------------
terms convertible into or exercisable into shares of Common Stock, including,
without limitation, any option, warrant or other subscription or purchase right
with respect to Common Stock.
"Company" has the meaning set forth in the first paragraph of this Warrant.
-------
"Current Market Price" means, as of the date of determination, the average
--------------------
of the daily Market Price of the Common Stock during the immediately preceding
ten (10) consecutive trading days ending on such date.
"Excluded Transaction" means (a) any issuance of Common Stock or securities
--------------------
convertible into or exchangeable for Common Stock (i) as part of an arm's length
commercial agreement approved by the Board of Directors, so long as such
11
issuance (on an as converted basis) is no greater than 1% of the issued and
outstanding (non-diluted) shares of Common Stock, and all such issuances in the
aggregate are no greater than 5% of the issued and outstanding (non-diluted)
shares of Common Stock, each as in effect immediately prior to such issuance,
(ii) as part of an underwritten public offering, or (iii) to employees,
consultants, officers or directors of the Company pursuant to a stock-incentive
plan that has been duly approved by the Board of Directors and (b) any issuance
of Common Stock (i) upon the conversion of Series A Preferred Stock, or (ii) as
a dividend on shares of Series A Preferred Stock.
"Exercise Form" means an Exercise Form in the form annexed hereto as
-------------
Exhibit A.
---------
"Exercise Period" means the period from the date hereof to the fifth (5th)
---------------
anniversary of the date hereof.
"Exercise Price" has the meaning set forth in the first paragraph of this
--------------
Warrant.
"Fair Market Value" means the amount which a willing buyer would pay a
-----------------
willing seller in an arm's length transaction reasonably determined in good
faith by the Board of Directors or, if such determination is not reasonably
satisfactory to the Warrantholders, such determination shall be made by a
nationally recognized investment banking firm selected by the Company and the
Majority Warrantholders, the expenses for which shall be born equally by the
Company and the Warrantholder. Any determination of the Fair Market Value by
the Board of Directors or such investment banking firm shall be made based on a
valuation of the Company as an entirety without regard to any discount for
minority interests or disparate voting rights among classes of capital stock.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
-------
as amended, and the rules and regulations promulgated thereunder.
"Issue Date" has the meaning set forth in Section 5.2 of this Warrant.
----------
"Market Price" on any date shall mean the closing bid prices per share of
------------
the Common Stock on NASDAQ or, if not then listed or traded on NASDAQ, such
other exchange, market or system that the Common Stock is then listed or traded
on. If on any such date the shares of such Common Stock are not listed or
admitted for trading on any national securities exchange or quoted on NASDAQ or
a similar service, the Market Price for such shares shall be the fair market
value of such shares on such date as determined in good faith by the Board of
Directors of the Company and shall be the value which is agreed upon by at least
85% of the members thereof, or if such percentage of the members of the Board of
Directors are unable to agree upon the value of such consideration, the value
thereof shall be determined by an independent
12
investment bank of a nationally recognized stature that is selected by the
Majority Warrantholders.
"Majority Warrantholders" means the holders of a majority of Warrant Shares
-----------------------
issuable upon exercise of all of the warrants issued pursuant to the Purchase
Agreement assuming the exercise of all such warrants.
"NASDAQ" shall mean the National Association of Securities Dealers, Inc.
------
Automated Quotation System.
"New Issuance" has the meaning set forth in Section 5.2 of this Warrant.
------------
"New Issue Price" has the meaning set forth in Section 5.2 of this Warrant.
---------------
"Person" means any individual, firm, corporation, partnership, limited
------
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental body or other entity of any kind.
"Purchase Agreement" has the meaning set forth in Section 1 of this
------------------
Warrant.
"Relevant Date" has the meaning set forth in Section 5.2 of this Warrant.
-------------
"Requisite Shareholder Approval" means the stockholders' Approvals (as
------------------------------
defined in the Purchase Agreement).
"Sale Transaction" shall mean (a) (i) the merger or consolidation of the
----------------
Company into or with one or more Persons, (ii) the merger or consolidation of
one or more Persons into or with the Company or (iii) a tender offer or other
business combination if, in the case of (i), (ii) or (iii), the stockholders of
the Company prior to such merger or consolidation do not retain at least a
majority of the voting power of the surviving Person or (b) the voluntary sale,
conveyance, exchange or transfer to another Person of (i) the voting Capital
Stock of the Company if, after such sale, conveyance, exchange or transfer, the
stockholders of the Company prior to such sale, conveyance, exchange or transfer
do not retain at least a majority of the voting power of the Company or (ii) all
or substantially all of the assets of the Company.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Securities and Exchange Commission thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred Stock,
------------------------
par value $.001 per share, of the Company.
13
"Spin-off Entity" has the meaning set forth in Section 5.9 of this Warrant.
---------------
"Transaction" has the meaning set forth in Section 5.9 of this Warrant.
------------
"Transfer" has the meaning set forth on the cover of this Warrant.
--------
"Warrant Share Number" has the meaning set forth in Section 5.1 of this
--------------------
Warrant.
"Warrant Shares" has the meaning set forth in the first paragraph of this
--------------
Warrant.
"Warrantholder" has the meaning set forth in the first paragraph of this
-------------
Warrant.
11. Miscellaneous
-------------
11.1 Entire Agreement. This Warrant and the Purchase Agreement
----------------
constitutes the entire agreement between the Company and the Warrantholder with
respect to the Warrant and supersedes all prior agreements and understanding
with respects to the subject matter of this Warrant.
11.2 Binding Effect; Benefits. This Warrant shall inure to the benefit of
------------------------
and shall be binding upon the Company and the Warrantholder and their respective
permitted successors and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any person other than the Company and
the Warrantholder, or their respective permitted successors or assigns, any
rights, remedies, obligations or liabilities under or by reason of this Warrant.
11.3 Headings. The headings in this Warrant are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of this
Warrant.
11.4 Notices. All notices, demands and other communications provided for
-------
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
14
(a) if to the Company:
eGain Communications Corporation
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Pillsbury Madison & Sutro LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(b) if to the Warrantholder to:
[Insert name of Warrantholder]
[address]
Telecopy:
Attention:
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is verbally or orally (but not mechanically) acknowledged, if
telecopied. Any party may by notice given in accordance with this Section 10.4
designate another address or Person for receipt of notices hereunder.
11.5 Severability. Any term or provision of this Warrant which
------------
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
15
11.6 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
11.7 No Rights or Liabilities as Members. Nothing contained in
----------------------------------------------------------
this Warrant shall be determined as conferring upon the Warrantholder any rights
--------------------------------------------------------------------------------
as a stockholder of the Company or as imposing any liabilities on the
---------------------------------------------------------------------
Warrantholder to purchase any securities whether such liabilities are asserted
------------------------------------------------------------------------------
by the Company or by creditors or stockholders of the Company or otherwise.
---------------------------------------------------------------------------
[Remainder of this page intentionally left blank]
-------------------------------------------------
16
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
--------------------------------------------------------------------
by its duly authorized officer.
-------------------------------
eGAIN COMMUNICATIONS CORPORATION
--------------------------------
By:__________________________________________________
Name:
Title:
Dated: August ___, 2000
------------------------
17
Exhibit A
---------
EXERCISE FORM
-------------
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase [insert number] shares of Common Stock
and [herewith tenders payment for such shares to the order of the Company in the
amount of $[insert number] [hereby exercises its Conversion Right] in accordance
with the terms of this Warrant. The undersigned requests that a certificate for
such [Warrant Shares] [that number of Warrant Shares to which the undersigned is
entitled as calculated pursuant to Section 2.2] be registered in the name of the
undersigned and that such certificates be delivered to the undersigned's address
below.
The undersigned represents that it is acquiring such shares for its
own account for investment and not with a view to or for sale in connection with
any distribution thereof (subject, however, to any requirement of law that the
disposition thereof shall at all times be within its control).
Dated: [insert date]
Signature ___________________________
_____________________________
(Print Name)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
