EXHIBIT 4.17
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS
SPECIFIED IN SECTION 8 HEREOF. NEITHER THE RIGHTS REPRESENTED BY THIS WARRANT
NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF (COLLECTIVELY, THE
"SECURITIES") HAVE BEEN REGISTERED FOR OFFER OR SALE UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE LAW, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IF, IN THE
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THIS
WARRANT, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE
WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT.
THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN PART NOR THE
WARRANT EXERCISED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 AND
SECTION 8 HEREOF.
SYQUEST TECHNOLOGY, INC.
WARRANT TO PURCHASE COMMON STOCK
SyQuest Technology, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, State Capital Market Group, Ltd. ("State
Capital"), the registered holder hereof, is entitled, subject to the terms set
forth below, to purchase from the Company upon surrender of this Warrant, at any
time or times on or after the date hereof but not after 5:00 P.M. San Francisco
time on the Expiration Date (as defined herein) fifty thousand (50,000) fully
paid nonassessable shares of Common Stock (as defined herein) of the Company (as
adjusted from time to time as provided in this Warrant) (the "Warrant Shares")
at an initial purchase price of U.S. $10.875 per share in lawful money of the
United States.
Section 1.
(a) DEFINITIONS. The following words and terms as used in this
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Warrant shall have the following meanings:
"Common Stock" means (a) the Company's common stock and (b) any capital
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stock into which such Common Stock shall have been changed or any capital stock
resulting from a reclassification of such Common Stock.
"Convertible Securities" mean any securities issued by the Company which
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are convertible into or exchangeable for, directly or indirectly, shares of
Common Stock.
"Expiration Date" means the date three years from the date of this Warrant
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or, if such date falls on a Saturday, Sunday or other day on which banks are
required or authorized to be closed in the City of San Francisco or the State of
California (a "Holiday"), the next preceding date which is not a Holiday.
"Transfer" shall include any disposition of any Warrants or Warrant Shares,
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or of any interest in either thereof which would constitute a sale thereof
within the meaning of the Securities Act of 1933, as amended, or the securities
laws of California or such other state or states as may be applicable.
"Warrant" shall mean this Warrant and all Warrants issued in exchange,
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transfer or replacement of any thereof.
"Warrant Exercise Price" shall initially be U.S. $10.875 per share and
----------------------
shall be adjusted and readjusted from time to time as provided in this Warrant.
(b) Other Definitional Provisions.
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(i) Except as otherwise specified herein, all references
herein (A) to the Company shall be deemed to include the Company's
successors and (B) to any applicable law defined or referred to herein,
shall be deemed references to such applicable law as the same may have been
or may be amended or supplemented from time to time.
(ii) When used in this Warrant, the words "herein," "hereof,"
and "hereunder," and words of similar import, shall refer to this Warrant
as a whole and not to any provision of this Warrant, and the words
"Section," "Schedule," and "Exhibit" shall refer to Sections of, and
Schedules and Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires the neuter gender
includes the masculine or feminine, and the singular number includes the
plural, and vice versa.
Section 2. EXERCISE OF WARRANT.
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(a) Subject to the terms and conditions hereof, this Warrant may be
exercised, in whole or in part, at any time during normal business hours on or
after the opening of business on the date hereof and prior to 5:00 P.M. San
Francisco time on the Expiration Date. The rights represented by this Warrant
may be exercised by the holder hereof then registered on the books of the
Company, in whole or from time to time in part (except that this Warrant shall
not be exercisable as to a fractional share) by (i) delivery of a written
notice, in the form of the Subscription Notice attached as Exhibit A hereto, of
such holder's election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased, (ii) payment to the Company of an
amount equal to the Warrant Exercise Price multiplied by the number of Warrant
Shares as to which the Warrant is being exercised (plus any applicable issue or
transfer taxes) in cash or by certified or official bank check, for the number
of Warrant Shares as to which this Warrant shall have been exercised,
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and (iii) the surrender of this Warrant, properly endorsed, at the principal
office of the Company (or at such other agency or office of the Company as the
Company may designate by notice to the holder hereof); provided, that if such
Warrant Shares are to be issued in any name other than that of the registered
holder of this Warrant, such issuance shall be deemed a transfer and the
provisions of Section 8 shall be applicable. In the event of any exercise of
the rights represented by this Warrant in compliance with this Section 2(a), a
certificate or certificates for the Warrant Shares so purchased, registered in
the name of, or as directed by, the holder, shall be delivered to, or as
directed by such holder within a reasonable time, after such rights shall have
been so exercised.
(b) Unless the rights represented by this Warrant shall have expired
or shall have been fully exercised, the Company shall issue a new Warrant
identical in all respects to the Warrant exercised except (i) it shall represent
rights to purchase the number of Warrant Shares purchasable immediately prior to
such exercise under the Warrant exercised, less the number of Warrant Shares
with respect to which such Warrant was exercised, and (ii) the holder thereof
shall be deemed to have become the holder of record of such Warrant Shares
immediately prior to the close of business on the date on which the Warrant was
surrendered and payment of the amount due in respect of such exercise and any
applicable taxes was made, irrespective of the date of delivery of such share
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are properly closed, such person
shall be deemed to have become the holder of such Warrant Shares at the opening
of business on the next succeeding date on which the stock transfer books are
open.
Section 3. COVENANTS AS TO COMMON STOCK. The Company covenants and
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agrees that all Warrant Shares which may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable. The Company further covenants and agrees that during
the period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized and reserved a sufficient number
of shares of Common Stock to provide for the exercise of the rights then
represented by this Warrant and that the par value of said shares will at all
times be less than or equal to the applicable Warrant Exercise Price.
Section 4. TAXES. The Company shall not be required to pay any tax
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or taxes attributable to the initial issuance of the Warrant Shares or any
permitted transfer involved in the issue or delivery of any certificates for
Warrant Shares of Common Stock in a name other than that of the registered
holder hereof or upon any permitted transfer of this Warrant.
Section 5. WARRANT HOLDER NOT DEEMED A SHAREHOLDER. No holder, as
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such, of this Warrant shall be entitled to vote or receive dividends or be
deemed the holder of shares of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote,
give or withhold consent to any corporate action (whether any reorganization,
issue of stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise,
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prior to the issuance to the holder of this Warrant of the Warrant Shares which
he is then entitled to receive upon the due exercise of this Warrant.
Section 6. NO LIMITATION ON CORPORATE ACTION. No provisions of this
---------------------------------
Warrant and no right or option granted or conferred hereunder shall in any way
limit, affect or abridge the exercise by the Company of any of its corporate
rights or powers to recapitalize, amend its Certificate of Incorporation,
reorganize, consolidate or merge with or into another corporation, or to
transfer all or any part of its property or assets, or the exercise of any other
of its corporate rights and powers.
Section 7. REPRESENTATION OF HOLDER. The holder of this Warrant, by
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the acceptance hereof, represents that it is acquiring this Warrant and the
Warrant Shares for its own account for investment and not with a view to, or
sale in connection with, any distribution hereof or of any of the shares of
Common Stock or other securities issuable upon the exercise thereof, nor with
any present intention of distributing any of the same. The holder of this
Warrant further represents, by acceptance hereof, that, as of this date, such
holder is an "accredited investor" as such term is defined in Rule 501(a)(1) of
Regulation D as promulgated by the Securities and Exchange Commission under the
Securities Act (an "Accredited Investor") and an "excluded purchaser" for
purposes of Section 25102(f) of the California Corporate Securities Law of 1968
(an "Excluded Purchaser"). Upon exercise of this Warrant, the holder shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the shares of Warrant Stock so purchased are being acquired solely
for the holder's own account and not as a nominee for any other party, for
investment, and not with a view toward distribution or resale and that such
holder is an Accredited Investor and an Excluded Purchaser. If such holder
cannot make such representations because they would be factually incorrect, it
shall be a condition to such holder's exercise of the Warrant that the Company
receive such other representations as shall be reasonably necessary to assure
the Company that the issuance of its securities upon exercise of the Warrant
shall not violate the United States' or any state's securities laws.
Section 8. TRANSFER; OPINIONS OF COUNSEL; RESTRICTIVE LEGENDS.
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(a) Prior to any sale, transfer or other disposition of this Warrant
or the Warrant Shares, the holder thereof will give ten (10) days' notice to the
Company of such holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer and, if
such transfer is not registered under the Securities Act (below defined), shall
be accompanied by an opinion, addressed to the Company and reasonably
satisfactory in form and substance to it, of counsel (reasonably satisfactory to
the Company) for such holder, stating whether, in the opinion of such counsel,
such transfer will be a transaction exempt from registration under the
Securities Act.
(b) If such sale, transfer or other disposition may in the opinion of
such counsel be effected without registration under the Securities Act, such
holder shall thereupon be entitled to the terms of the notice delivered by such
holder to the Company. If in the opinion of such counsel such transfer may not
be effected without registration under the Securities Act, such holder shall not
be entitled to so transfer this Warrant, or the Warrant
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Shares unless the Company shall have filed a registration statement relating to
such proposed transfer and such registration statement has become effective
under the Securities Act.
(c) Any Warrant Shares issued pursuant to the exercise of this
Warrant may bear one or more of the legends in similar form to the legend set
forth on this Warrant.
Section 9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this
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Warrant is lost, stolen, mutilated or destroyed, the Company shall, on such
terms as to indemnity or otherwise as it may in its discretion impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
Section 10. NOTICE. All notices and other communications under this
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Warrant shall (a) be in writing (which shall include communications by
telecopy), (b) be (i) sent by registered or certified mail, postage prepaid,
return receipt requested, by telecopier, or (ii) delivered by hand, (c) be given
at the following respective addresses and telecopier numbers and to the
attention of the following persons:
(i) if to the Company, to it at:
SyQuest Technology, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Xxxx & Black, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(ii) if to State Capital, to it at the address set forth below
State Capital's signature on the signature page hereof.
or at such other address or telecopier number or to the attention of such other
person as the party to whom such information pertains may hereafter specify for
the purpose in a notice to the other specifically captioned "Notice of Change of
Address", and (d) be effective or deemed delivered or furnished (i) if given by
mail, on the fifth Business Day after such communication is deposited in the
mail, addressed as above provided, (ii) if given by telecopier, when such
communication is transmitted to the appropriate number determined as above
provided in this Section and the appropriate answer back is received or receipt
is
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otherwise acknowledged, and (iii) if given by hand delivery, when left at the
address of the addressee addressed as above provided, except that notices of a
change of address, telecopier or telephone number, shall not be deemed
furnished, until received.
Section 11. MISCELLANEOUS. This Warrant and any term hereof may be
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changed, waived, discharged, or terminated only by an instrument in writing
signed by the party or holder hereof against which enforcement of such change,
waiver, discharge or termination is sought. The headings in this Warrant are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Warrant shall be governed by and interpreted under the
laws of the State of California.
Section 12. DATE. The date of this Warrant is July 30, 1996. This
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Warrant, in all events, shall be wholly void and of no effect after the close of
business on the Expiration Date, except that notwithstanding any other
provisions hereof, the provisions of Section 12 shall continue in full force and
effect after such date as to any Warrant Shares or other securities issued upon
the exercise of this Warrant.
SYQUEST TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
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Title: Sr. VP & CFO
---------------------------------
ACCEPTED:
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STATE CAPITAL MARKET GROUP, LTD.
By: /s/ Xxxxxxx Arnouse
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Name: Xxxxxxx X. Arnouse
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Title: President
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Address: 0 Xxxxxx Xxxx
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Syasset, N.Y. 11791
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EXHIBIT A TO WARRANT
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SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH REGISTERED HOLDER DESIRES TO
EXERCISE THIS WARRANT
SYQUEST TECHNOLOGY, INC.
The undersigned hereby exercises the right to purchase Warrant Shares
covered by this Warrant according to the conditions thereof and herewith makes
payment of U.S. $________, the aggregate Warrant Exercise Price of such Warrant
Shares in full.
The undersigned further certifies that:
1. It is acquiring the Warrant Shares for its own account and not as
nominee for any other party, for investment and not with a view to, or sale in
connection with, any distribution thereof, nor with any present intention of
distributing any of the same; and
2. As of this date, it is an "accredited investor" as such term is
defined in Rule 501(a)(1) of Regulation D as promulgated by the Securities and
Exchange Commission under the Securities Act and an "excluded purchaser" for
purposes of Section 25102(f) of the California Corporate Securities Law of 1968.
STATE CAPITAL MARKET GROUP, LTD.:
By: _______________________________
Name:
Title:
Address: ____________________________
____________________________________
____________________________________
Number of Warrant Shares Being Purchased:
___________________________________
Dated: ______________, 199___.
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