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EXHIBIT 4.10
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURISkadden, Arps, Slate, Meagher &
FlomFinancial Printing GroupTHE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE
FIVE HUNDRED THOUSAND SHARES OF SERIES F PREFERRED STOCK
OF WAVESPLITTER TECHNOLOGIES, INC.
(Void after September 30, 2005)
This certifies that Lucent Technologies - GRL Corp., 14645 N.W. 77th Avenue,
Miami Lakes, Florida 33014, Attn: Al Leonard, or its assigns (the "Holder"), for
value received, is entitled to purchase from WaveSplitter Technologies, Inc., a
California corporation (the "Company"), Five Hundred Thousand (500,000) fully
paid and nonassessable shares of the Company's Series F Preferred Stock
("Preferred Stock") for cash at a price equal to $0.01 per share (the "Stock
Purchase Price"), at any time or from time to time up to and including 5:00 p.m.
(Pacific time) on September 30, 2005 (the "Expiration Date"), upon surrender to
the Company at its principal office at Fremont, California, (or at such other
location as the Company may advise Holder in writing) of this Warrant properly
endorsed with the Form of Subscription attached hereto duly filled in and signed
and upon payment in cash or by check of the aggregate Stock Purchase Price for
the number of shares for which this Warrant is being exercised determined in
accordance with the provisions hereof. The Stock Purchase Price and the number
of shares purchasable hereunder are subject to adjustment as provided in Section
4 of this Warrant.
This Warrant is subject to the following terms and conditions:
1. Exercise; Issuance of Certificates; Payment for Shares.
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(a) Unless an election is made pursuant to clause (b) of this Section
1, this Warrant shall be exercisable at the option of the Holder, at any time or
from time to time, on or before the Expiration Date for all or any portion of
the shares of Preferred Stock (but not for a fraction of a share) which may be
purchased hereunder for the Stock Purchase Price multiplied by the number of
shares to be purchased. In the event, however, that pursuant to the Company's
Articles of Incorporation, as amended, an event causing automatic conversion of
the Company's Preferred Stock shall have occurred prior to the exercise of this
Warrant, in whole or in part, then this Warrant shall be exercisable for the
number of shares of Common Stock of the Company into which the Preferred Stock
not purchased upon any prior exercise of the Warrant would have been so
converted (and, where the context requires, reference to "Preferred Stock" shall
be deemed to include such Common Stock). The Company agrees that the shares of
Preferred Stock purchased under this Warrant shall be and are deemed to be
issued to the holder hereof as the record owner of such shares as of the close
of business on the date on which the form of subscription shall have been
delivered and payment made for such shares. Subject to the provisions of Section
2, certificates for the shares of Preferred Stock so purchased, together with
any other securities or property to which the Holder hereof is entitled upon
such exercise, shall
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be delivered to the Holder hereof by the Company at the Company's expense within
a reasonable time after the rights represented by this Warrant have been so
exercised. Except as provided in clause (b) of this Section 1, in case of a
purchase of less than all the shares which may be purchased under this Warrant,
the Company shall cancel this Warrant and execute and deliver a new Warrant or
Warrants of like tenor for the balance of the shares purchasable under the
Warrant surrendered upon such purchase to the Holder hereof within a reasonable
time. Each stock certificate so delivered shall be in such denominations of
Preferred Stock as may be reasonably requested by the Holder hereof and shall be
registered in the name of such Holder or such other name as shall be designated
by such Holder, subject to the limitations contained in Section 2.
(b) The Holder, in lieu of exercising this Warrant by the payment of
the Stock Purchase Price pursuant to clause (a) of this Section 1, may elect, at
any time on or before the Expiration Date, to receive that number of shares of
Preferred Stock equal to the quotient of: (i) the difference between (A) the Per
Share Price (as hereinafter defined) of the Preferred Stock, less (B) the Stock
Purchase Price then in effect, multiplied by the number of shares of Preferred
Stock the Holder would otherwise have been entitled to purchase hereunder
pursuant to clause (a) of this Section 1 (or such lesser number of shares as the
Holder may designate in the case of a partial exercise of this Warrant); over
(ii) the Per Share Price. Election to exercise under this section (b) may be
made by delivering a signed form of subscription to the Company via facsimile,
to be followed promptly by delivery of the warrant.
(c) For purposes of clause (b) of this Section 1, "Per Share Price"
means the product of: (i) the greater of (A) the closing price of the Company's
Common Stock as quoted by NASDAQ or listed on any exchange, whichever is
applicable, as published in the Western Edition of The Wall Street Journal for
the trading day immediately prior to the date of the Holder's election hereunder
or, (B) if applicable at the time of or in connection with the exercise under
clause (b) of this Section 1, the gross sales price of one share of the
Company's Common Stock pursuant to a registered public offering or that amount
which shareholders of the Company will receive for each share of Common Stock
pursuant to a merger, reorganization or sale of assets; and (ii) that number of
shares of Common Stock into which each share of Preferred Stock is convertible.
If the Company's Common Stock is not quoted by NASDAQ or listed on an exchange,
the Per Share Price of the Preferred Stock (or the equivalent number of shares
of Common Stock into which such Preferred Stock is convertible) shall be the
price per share which the Company would obtain from a willing buyer for shares
sold by the Company from authorized but unissued shares as such price shall be
reasonably agreed upon by the Holder and the Company or, if agreement cannot be
reached within ten (10) business days of the Holder's election hereunder, as
such price shall be determined by a panel of three (3) appraisers, one (1) to be
chosen by the Company, one (1) to be chosen by the Holder and the third to be
chosen by the first two (2) appraisers. If the appraisers cannot reach agreement
within 30 days of the Holder's election hereunder, then each appraiser shall
deliver its appraisal and the appraisal which is neither the highest nor the
lowest shall constitute the Per Share Price. In the event either party fails to
choose an appraiser within 30 days of the Holder's election hereunder, then the
appraisal of the sole appraiser shall constitute the Per Share Price. Each party
shall bear the cost of the appraiser selected by such party and the cost of the
third appraiser shall be borne one-half by each party. In the event either party
fails to choose an appraiser, the cost of the sole appraiser shall be borne one-
half by each party.
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2. Limitation on Transfer.
-----------------------
(a) The Warrant and the Preferred Stock shall not be transferable
except upon the conditions specified in this Section 2, which conditions are
intended to insure compliance with the provisions of the Securities Act. The
Warrant and the Preferred Stock and the Common Stock issuable upon conversion
thereof may be transferred only to accredited investors, as such term is defined
in Rule 501 of Regulation D under the Securities Act of 1933. Each holder of
this Warrant or the Preferred Stock or Common Stock issuable hereunder will
cause any proposed transferee of the Warrant or Preferred Stock or Common Stock
issuable upon conversion thereof to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 2.
Not more than five (5) shall be permitted.
(b) Each certificate representing (i) this Warrant, (ii) the
Preferred Stock, (iii) shares of the Company's Common Stock issued upon
conversion of the Preferred Stock and (iv) any other securities issued in
respect to the Preferred Stock or Common Stock issued upon conversion of the
Preferred Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of this Section 2 or unless such securities have been registered
under the Securities Act or sold under Rule 144) be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to any
legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
(c) The Holder of this Warrant and each person to whom this Warrant
or the Preferred Stock or Common Stock issuable hereunder is subsequently
transferred represents and warrants to the Company (by acceptance of such
transfer) that he, she, or it is an accredited investor and that it will not
transfer the Warrant (or securities issuable upon exercise hereof unless a
registration statement under the Securities Act was in effect with respect to
such securities at the time of issuance thereof) unless and until the Company
has been provided notice of proposed disposition including its material terms
and except pursuant to (i) an effective registration statement under the
Securities Act, (ii) Rule 144 under the Securities Act (or any other rule under
the Securities Act relating to the disposition of securities), or (iii) an
opinion of counsel, reasonably satisfactory to counsel for the Company, that an
exemption from such registration is available.
3. Shares to be Fully Paid; Reservation of Shares. The Company covenants
-----------------------------------------------
and agrees that all shares of Preferred Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any shareholder and free of all taxes, liens and charges
with respect to the issue thereof. 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, for
the purpose of issue or transfer upon exercise of the subscription rights
evidenced by this Warrant, a sufficient number of shares of
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authorized but unissued Preferred Stock, or other securities and property, when
and as required to provide for the exercise of the rights represented by this
Warrant. The Company will take commercially reasonable action to assure that
such shares of Preferred Stock may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of any
domestic securities exchange upon which the Preferred Stock may be listed. The
Company will not take any action which would result in any adjustment of the
Stock Purchase Price (as defined in Section 4 hereof) (i) if the total number of
shares of Preferred Stock issuable after such action upon exercise of all
outstanding warrants, together with all shares of Preferred Stock then
outstanding and all shares of Preferred Stock then issuable upon exercise of all
options and upon the conversion of all convertible securities men outstanding,
would exceed the total number of shares of Preferred Stock then authorized by
the Company's Articles of Incorporation, or (ii) if the total number of shares
of Common Stock issuable after such action upon the conversion of all such
shares of Preferred Stock together with all shares of Common Stock then
outstanding and then issuable upon exercise of all options and upon the
conversion of all convertible securities then outstanding would exceed the total
number of shares of Common Stock then authorized by the Company's Articles of
Incorporation.
4. Adjustment of Stock Purchase Price Number of Shares. The Stock
----------------------------------------------------
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 4. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Stock Purchase Price resulting from such adjustment, the number
of shares obtained by multiplying the Stock Purchase Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Stock Purchase Price resulting from such adjustment.
4.1 Subdivision or Combination of Stock. In case the Company shall
------------------------------------
at any time subdivide its outstanding shares of Preferred Stock into a greater
number of shares, the Stock Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced, and conversely, in case the
outstanding shares of Preferred Stock of the Company shall be combined into a
smaller number of shares, the Stock Purchase Price in effect immediately prior
to such combination shall be proportionately increased.
4.2 Dividends in Preferred Stock, Other Stock, Property
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Reclassification. If at any time or from time to time the holders of Preferred
----------------
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Preferred Stock, or any shares of stock or other securities
whether or not such securities are at any time directly or indirectly
convertible into or exchangeable for Preferred Stock, or any rights or options
to subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution, or
(b) any cash paid or payable otherwise than as a cash dividend,
or
(c) Preferred Stock or other or additional stock or other
securities or property (including cash) by way of spinoff, split-up,
reclassification, combination of shares or
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similar corporate rearrangement, (other than shares of Preferred Stock issued as
a stock split, adjustments in respect of which shall be covered by the terms of
Section 4.1 above). Then and in each such case, the Holder hereof shall, upon
the exercise of this Warrant, be entitled to receive, in addition to the number
of shares of Preferred Stock receivable thereupon, and without payment of any
additional consideration therefore, the amount of stock and other securities and
property (including cash in the cases referred to in clauses (b) and (c) above)
which such Holder would hold on the date of such exercise had he been the holder
of record of such Preferred Stock as of the date on which holders of Preferred
Stock received or became entitled to receive such shares and/or all other
additional stock and other securities and property.
4.3 Reorganization, Reclassification, Consolidation, Merger or Sale.
----------------------------------------------------------------
If any capital reorganization of the capital stock of the Company, or any
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation shall be effected
in such a way that holders of Preferred Stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for Preferred Stock,
then, as a condition of such reorganization, reclassification, consolidation,
merger or sale, lawful and adequate provisions shall be made whereby the holder
hereof shall thereafter have the right to purchase and receive(in lieu of the
shares of the Preferred Stock of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby) such shares
of stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Preferred Stock equal to the
number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby. In any such
case, appropriate provision shall be made with respect to the rights and
interests of the holder of this Warrant to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Stock Purchase
Price and of the number of shares purchasable and receivable upon the exercise
of this Warrant) shall thereafter be applicable, as nearly as may be possible,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise hereof.
4.4 Anti-Dilution Provisions. The Holder hereof shall be entitled,
-------------------------
with respect to the shares of Series F Preferred Stock issued upon exercise
hereof, to the anti-dilution protection provided to such class of stock as
described in the Company's Amended and Restated Articles of Incorporation. This
protection shall apply to Holder prior to the exercise of this Warrant.
4.5 Notice of Adjustment. Upon any adjustment of the Stock Purchase
---------------------
Price, and/or any increase or decrease in the number of shares purchasable upon
the exercise of this Warrant the Company shall give written notice thereof, by
first class mail, postage prepaid, addressed to the registered holder of this
Warrant at the address of such holder as shown on me books of the Company. The
notice, which may be substantially in me form of Exhibit "A" attached hereto,
shall be signed by the Company's chief financial officer and shall state the
Stock Purchase Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
4.6 Other Notices. If at any time:
--------------
(a) the Company shall declare any cash dividend upon its
Preferred
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Stock;
(b) the Company shall declare any dividend upon its Preferred
Stock payable in stock or make any special dividend or other distribution to the
holders of its Preferred Stock;
(c) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation;
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) the Company shall take or propose to take any other action,
notice of which is actually provided to holders of the Preferred Stock (except
the voting of Preferred Stock on matters other than items (a) though (e));
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the holder of this Warrant at the address of
such holder as shown on the books of the Company, (i) at least 20 day's prior
written notice of the date on which the books of the Company shall close or a
record shall be taken for such dividend or distribution rights or for
determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, or other action and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, or other action, at least 20 day's written notice of the date when
the same shall take place. Any notice given in accordance with the foregoing
clause (i) shall also specify, in the case of any such dividend or distribution
the date on which the holders of Preferred Stock shall be entitled thereto. Any
notice given in accordance with the foregoing clause (ii) shall also specify the
date on which the holders of Preferred Stock shall be entitled to exchange their
Preferred Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, or other action as the case may be.
4.7 Certain Events. If any change in the outstanding Preferred Stock
---------------
of the Company or any other event occurs as to which the other provisions of
this Section 4 are not strictly applicable or if strictly applicable would not
fairly protect the purchase rights of the Holder of the Warrant in accordance
with the essential intent and principles of such provisions, then the Board of
Directors of the Company shall make an adjustment in the number and class of
shares available under the Warrant, the Stock Purchase Price and/or the
application of such provisions, in accordance with such essential intent and
principles, so as to protect such purchase rights as aforesaid. The adjustment
shall be such as will give the Holder of the Warrant upon exercise for the same
aggregate Stock Purchase Price the total number, class and kind of shares as he
would have owned had the Warrant been exercised prior to the event and had he
continued to hold such shares until after the event requiring adjustment.
5. Issue Tax. The issuance of certificates for shares of Preferred Stock
----------
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any
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certificate in a name other than that of the then Holder of the Warrant being
exercised.
6. Closing of Books. The Company will at no time close its transfer books
-----------------
against the transfer of any Warrant or of any shares of Preferred Stock issued
or issuable upon the exercise of any warrant in any manner which interferes with
the timely exercise of this Warrant.
7. No Voting or Dividend Rights; Limitation of Liability. Nothing
------------------------------------------------------
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent as a shareholder in respect of meetings
of shareholders for the election of directors of the Company or any other
matters or any rights whatsoever as a shareholder of the Company. No dividends
or interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the shares purchasable hereunder until, and only
to the extent that, this Warrant shall have been exercised. No provisions
hereof, in the absence of affirmative action by the holder to purchase shares of
Preferred Stock, and no mere enumeration herein of the rights or privileges of
the Holder hereof, shall give rise to any liability of such Holder for the Stock
Purchase Price or as a shareholder of the Company, whether such liability is
asserted by the Company or by its creditors.
8. Registration Rights. The Holder hereof shall be entitled, upon
--------------------
execution of an amendment to the Fifth Amended and Restated Rights Agreement
(the "Rights Agreement") with respect to the shares of Preferred Stock issued
upon exercise hereof or the shares of Common Stock or other securities issued
upon conversion of such Preferred Stock as the case may be, to all of the
registration rights set forth in the Rights Agreement to the same extent and on
the same terms and conditions as possessed by the Investors thereunder.
9. Rights and Obligations Survive Exercise of Warrant. The rights and
---------------------------------------------------
obligations of the Company, of the Holder of this Warrant and of the holder of
shares of Preferred Stock issued upon exercise of this Warrant, contained in
Sections 6 and 8 shall survive the exercise of this Warrant.
10. Modification and Waiver. This Warrant and any provision hereof may be
------------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notices. Any notice, request or other document required or permitted
--------
to be given or delivered to the holder hereof or the Company shall be deemed to
have been given (i) upon receipt if delivered personally or by courier (ii) upon
confirmation of receipt if by telecopy or (iii) three business days after
deposit in the US mail, with postage prepaid and certified or registered, to
each such holder at its address as shown on the books of the Company or to the
Company at the address indicated therefor in the first paragraph of this
Warrant.
12. Binding Effect on Successors. This Warrant shall be binding upon any
-----------------------------
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets unless otherwise agreed by the
Holder. All of the obligations of the Company relating to the Preferred Stock
issuable upon the exercise of this Warrant shall survive the exercise and
termination of this Warrant All of the covenants and agreements of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
The Company will, at the time of the exercise of this Warrant, in whole or in
part, upon
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request of the Holder hereof but at the Company's expense, acknowledge in
writing its continuing obligation to the Holder hereof in respect of any rights
(including, without limitation, any right to registration of the shares of
Common Stock) to which the holder hereof shall continue to be entitled after
such exercise in accordance with this Warrant; provided, that the failure of the
holder hereof to make any such request shall not affect the continuing
obligation of the Company to the Holder hereof in respect of such rights.
13. Descriptive Headings and Governing Law. The descriptive headings of
---------------------------------------
the several sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of California, as applied to agreements
made and performed in California by residents thereof without regard to the
conflicts of laws principles of such state.
14. Lost Warrants or Stock Certificates. The Company represents and
------------------------------------
warrants to the Holder hereof that upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant or stock certificate and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation upon surrender and cancellation
of such Warrant or stock certificate, the Company at its expense will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
15. Fractional Shares. No fractional shares shall be issued upon exercise
------------------
of this Warrant. The Company shall, in lieu of issuing any fractional share,
pay the holder entitled to such fraction a sum in cash equal to such fraction
multiplied by the then effective Stock Purchase Price.
16. Representations of Holder. With respect to this Warrant, Holder
--------------------------
represents and warrants to the Company as follows:
16.1 Experience. It is experienced in evaluating and investing in
-----------
companies engaged in businesses similar to that of the Company; it understands
that investment in the Warrant involves substantial risks; it has made detailed
inquiries concerning the Company, its business and services, its officers and
its personnel; the officers of the Company have made available to Holder any and
all written information it has requested; the officers of the Company have
answered to Holder's satisfaction all inquiries made by it; in making this
investment it has relied upon information made available to it by the Company;
and it has such knowledge and experience in financial and business matters that
it is capable of evaluating the merits and risks of investment in the Company
and it is able to bear the economic risk of that investment.
16.2 Investment. It is acquiring the Warrant for investment for its
-----------
own account and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the Warrant, the shares of Preferred
Stock issuable upon exercise thereof and the shares of Common Stock issuable
upon conversion of the Preferred Stock, have not been registered under the
Securities Act of 1933, as amended, nor qualified under applicable state
securities laws.
16.3 Rule 144. It acknowledges that the Warrant, the Preferred Stock
---------
and the Common Stock must be held indefinitely unless they are subsequently
registered under the
8
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Securities Act or an exemption from such registration is available. It has been
advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act.
16.4 Access to Data. It has had an opportunity to discuss the
---------------
Company's business, management and financial affairs with the Company's
management and has had the opportunity to inspect the Company's facilities.
16.5 Accredited Investor. It is an accredited investor as such term
--------------------
is defined in Rule 501 of Regulation D of the Securities Act of 1933.
17. Additional Representations and Covenants of the Company. The Company
--------------------------------------------------------
hereby represents, warrants and agrees as follows:
17.1 Corporate Power. The Company has all requisite corporate power
----------------
and corporate authority to issue this Warrant and to carry out and perform its
obligations hereunder.
17.2 Authorization. All corporate action on the part of the Company,
--------------
its directors and shareholders necessary for the authorization, execution,
delivery and performance by the Company of this has been taken. This Warrant is
a valid and binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights in general and
subject to general principals of equity.
17.3 Offering. Subject in part to the truth and accuracy of Holder's
---------
representations set forth in Section 17 hereof, the offer, issuance and sale of
the Warrant is, and the issuance of Preferred Stock upon exercise of the Warrant
and the issuance of Common Stock upon conversion of the Preferred Stock will,
under current law and assuming no transfer, be exempt from the registration
requirements of the Securities Act, and are exempt from the qualification
requirements of any applicable state securities laws; and neither the Company
nor anyone acting on its behalf will take any action hereafter that would cause
the loss of such exemptions.
17.4 Stock Issuance. Upon exercise of the Warrant, the Company will
---------------
use its best efforts to cause stock certificates representing the shares of
Preferred Stock purchased pursuant to the exercise to be issued in the
individual names of Holder, its nominees or assignees, as appropriate at the
time of such exercise. Upon conversion of the shares of Preferred Stock to
shares of Common Stock, the Company will issue the Common Stock in the
individual names of Holder, its nominees or assignees, as appropriate.
17.5 Articles and By-Laws. The Company has provided Holder with, or
---------------------
made available to Holder, true and complete copies of the Company's Articles or
Certificate of Incorporation, By-Laws, and each Certificate of Determination or
other charter document setting, forth any rights, preferences and privileges of
Company's capital stock, each as amended and in effect on the date of issuance
of this Warrant.
17.6 Conversion of Preferred Stock. As of the date hereof, each
------------------------------------
share of the Preferred Stock is convertible into one share of the Common Stock.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its officers, thereunto duly authorized this 21st day of September , 2000.
WAVESPLITTER TECHNOLOGIES, INC.
/s/ Bruce C. Rollock
By:____________________________
Vice President,Chief
Financial Officer, Secretary
and Treasurer
Title:_________________________
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: _________________________
[_] The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, (1) See Below _____________________ (________) shares (the
"Shares") of Stock of ____________ and herewith makes payment of_______________
Dollars ($____________) therefor, and requests that the certificates for such
shares be issued in the name of, and delivered to, __________________________,
whose address is __________________________________.
[_] The undersigned hereby elects to convert _________________________
percent (_________%) of the value of the Warrant pursuant to the provisions of
Section l(b) of the Warrant.
The undersigned represents that it is acquiring such stock 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). The undersigned
further affirms as of the date of this election, each of the representations and
warranties of Section 17 of the Warrant.
Dated: _________________________________
Holder: ________________________________
By: ___________________________________
Its: ___________________________________
(Signature must conform to name of Holder
exactly as specified on the face of the
Warrant or as specified in an Assignment)
(Address)
_______________________________________
_______________________________________
(1) Insert here the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment
for additional Preferred Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of the
Warrant, may be deliverable upon exercise.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, the holder of the within Warrant, hereby
sells, assigns and transfers all of the rights of the undersigned under the
within Warrant, with respect to the number of shares of Preferred Stock covered
thereby set forth hereinbelow, unto:
11
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Name of Assignee Address Number of Shares
------------------------------- ---------------------------------------------------- --------------------------
</TABLE>
Dated: _________________________________
Holder: ________________________________
By: ____________________________________
Its: ___________________________________
(Signature must conform to name of Holder
exactly as specified on the face of the
Warrant or as specified in an Assignment)
12
