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Exhibit 10.5
NO. CSW-7
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, 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 850,000 SHARES
OF COMMON STOCK OF
FVC.COM, INC.
(VOID AFTER JUNE 8, 2005)
This certifies that VULCAN VENTURES INCORPORATED or its assigns (the
"HOLDER"), for value received, is entitled to purchase from FVC.COM, INC., a
Delaware corporation (the "COMPANY"), having a place of business at 3393
Octavius Drive, Suite 102, Santa Clara, CA 95054, a maximum of 850,000 fully
paid and nonassessable shares of the Company's Common Stock ("COMMON STOCK") for
cash at a price of $7.00 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 June 8, 2005
(the "EXPIRATION DATE"), upon surrender to the Company at its principal office
(or at such other location as the Company may advise the Holder in writing) of
this Warrant properly endorsed with the Form of Subscription attached hereto
duly filled in and signed and, if applicable, 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 3 of this Warrant. This Warrant is
issued pursuant to that certain Stock Purchase Agreement dated as of June 8,
2000 by and between the Holder and the Company (the "STOCK PURCHASE AGREEMENT").
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
1.1 GENERAL. This Warrant is exercisable at the option of
the holder of record hereof, at any time or from time to time, up to the
Expiration Date for all or any part of the shares of Common Stock (but not for a
fraction of a share) which may be purchased hereunder. The Company agrees that
the shares of Common 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 this Warrant shall have been surrendered,
properly endorsed, the completed, executed Form of Subscription delivered and
payment made for such shares. Certificates for the shares of Common Stock so
purchased, together with any other securities or property to which the Holder
hereof is entitled upon such exercise, shall 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. In case of a purchase
of less than all
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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 Common Stock as may be requested
by the Holder hereof and shall be registered in the name of such Holder.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that all shares of Common Stock or any other securities
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 stockholder 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 authorized but unissued Common 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 all such action as may be necessary to assure
that such shares of Common 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 Common Stock may be listed;
provided, however, subject to the Company's obligations pursuant to that certain
Registration Rights Agreement, dated as of June 8, 2000, between the Company and
Holder that the Company shall not be required to effect a registration under
Federal or State securities laws with respect to such exercise. The Company will
not take any action which would result in any adjustment of the Stock Purchase
Price (as set forth in Section 3 hereof) if the total number of shares of Common
Stock issuable after such action upon exercise of all outstanding warrants,
together with all shares of Common Stock then outstanding and all shares of
Common Stock 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 Amended and Restated
Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND 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 3. 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.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the
Company shall at any time subdivide its outstanding shares of Common Stock into
a greater number of shares, the Stock Purchase Price in effect immediately prior
to such subdivision shall be proportionately
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reduced, and conversely, in case the outstanding shares of Common 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.
3.2 DIVIDENDS IN COMMON STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the holders of Common
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) Common Stock or any shares of stock or other
securities which are at any time directly or indirectly convertible into or
exchangeable for Common Stock, or any rights or options to subscribe for,
purchase or otherwise acquire any of the foregoing by way of dividend or other
distribution,
(b) any cash paid or payable otherwise than as a
cash dividend, or
(c) Common Stock or additional stock or other
securities or property (including cash) by way of spinoff, split-up,
reclassification, combination of shares or similar corporate rearrangement
(other than shares of Common Stock issued as a stock split or adjustments in
respect of which shall be covered by the terms of Section 3.1 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 Common Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of stock and other securities and property (including cash
in the cases referred to in clause (b) above and this clause (c)) which such
Holder would hold on the date of such exercise had the Holder been the holder of
record of such Common Stock as of the date on which holders of Common Stock
received or became entitled to receive such shares or all other additional stock
and other securities and property.
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE. If any recapitalization, reclassification or 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
or other transaction shall be effected in such a way that holders of Common
Stock shall be entitled to receive stock, securities, or other assets or
property (a "CHANGE"), then, as a condition of such Change, lawful and adequate
provisions shall be made by the Company whereby the Holder hereof shall
thereafter have the right to purchase and receive (in lieu of the shares of the
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby) such shares of stock,
securities or other assets or property as may be issued or payable with respect
to or in exchange for a number of outstanding shares of such Common Stock equal
to the number of shares of such stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby.
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3.4 ADJUSTMENTS OF PURCHASE PRICE FOR CERTAIN DILUTING
ISSUES.
(a) SPECIAL DEFINITIONS. For purposes of this Section
3.4, the following definitions apply:
(i) "OPTIONS" shall mean rights, options, or
warrants to subscribe for, purchase or otherwise
acquire either Common Stock or Convertible
Securities.
(ii) "ORIGINAL ISSUE DATE" shall mean the date on
which this Warrant was issued.
(ii) "CONVERTIBLE SECURITIES" shall mean any
evidences of indebtedness, shares (other than Common
Stock) or other securities convertible into or
exchangeable for Common Stock.
(iii) "ADDITIONAL SHARES OF COMMON STOCK" shall
mean all shares of Common Stock issued (or, pursuant
to Section 3.4(c) deemed to be issued) by the Company
after the Original Issue Date, other than shares of
Common Stock:
(A) issued or issuable to officers,
directors, employees or advisors of, or
consultants or independent contractors to,
the Company, pursuant to options, warrants
or other Common Stock purchase rights
granted in accordance with plans or other
arrangements approved by the Board of
Directors of the Company and, as required by
law, the Company's stockholders;
(B) issued in connection with any merger,
consolidation or similar transaction, or any
acquisition of assets or a business, in
accordance with agreements or other
arrangements approved by the Board of
Directors of the Company;
(C) issued or issuable upon conversion of
shares of Series A Preferred Stock;
(D) issued or issuable as a dividend or
distribution on the Series A Preferred
Stock;
(E) for which adjustment of the Stock
Purchase Price and the number of shares of
Common Stock into which this Warrant is
exercisable is made pursuant to Section 3.1
or for which a distribution with respect to
this Warrant is provided for pursuant to
Section 3.2;
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(F) issued pursuant to any equipment leasing
arrangement or debt financing from a bank or
similar financial institution approved by
the Board of Directors of the Company not to
exceed 100,000 shares of Common Stock in the
aggregate;
(G) issued or issuable pursuant to Options
outstanding as of the Original Issuance
Date; and
(H) issued or issuable upon exercise of this
Warrant.
(iv) "SERIES A PREFERRED STOCK" shall mean the
Series A Convertible Preferred Stock, $.001 par value
per share, of the Company.
(b) NO ADJUSTMENT OF STOCK PURCHASE PRICE. No adjustment
in the Stock Purchase Price of this Warrant shall be made in respect of the
issuance of Additional Shares of Common Stock unless the consideration per share
for an Additional Share of Common Stock issued or deemed to be issued by the
Company is less than the Stock Purchase Price in effect on the date of, and
immediately prior to such issue, for this Warrant.
(c) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON STOCK. In
the event the Company at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities, then the maximum number
of shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein designed to protect against dilution) of Common
Stock issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issuance of Options or Convertible Securities; provided,
however, that Additional Shares of Common Stock shall not be deemed to have been
issued unless the consideration per share (determined pursuant to Section 3.4(e)
hereof) of such Additional Shares of Common Stock would be less than the Stock
Purchase Price in effect on the date of and immediately prior to such issuance
of Options or Convertible Securities, or such record date, as the case may be;
and provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued:
(i) no further adjustments in the Stock Purchase
Price shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon
the exercise of such Options or conversion or
exchange of such Convertible Securities;
(ii) if such Options or Convertible Securities by
their terms provided, with the passage of time or
otherwise, for any increase in the consideration
payable to the Company, or decrease in the number of
shares of Common Stock issuable, upon the exercise,
conversion or exchange thereof, the Stock Purchase
Price computed upon the original issue thereof (or
upon
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the occurrence of a record date with respect
thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such
increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under
such Convertible Securities; provided, however, that
no such adjustment of the Stock Purchase Price shall
affect Common Stock previously issued upon exercise
of this Warrant;
(iii) Upon the expiration of any such Options or any
rights of conversion or exchange under such
Convertible Securities which shall not have been
exercised, the Stock Purchase Price computed upon the
original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such
expiration, be recomputed as if:
(A) in the case of Convertible Securities or
Options for Common Stock, the only
Additional Shares of Common Stock issued
were the shares of Common Stock, if any,
actually issued upon the exercise of such
Options or the conversion or exchange of
such Convertible Securities and the
consideration received therefor was the
consideration actually received by the
Company for the issue of all such Options,
whether or not exercised, plus the
consideration actually received by the
Company upon such exercise, or for the issue
of all such Convertible Securities which
were actually converted or exchanged, plus
additional consideration, if any, actually
received by the Company upon such conversion
or exchange, and
(B) in the case of Options for Convertible
Securities, only the Convertible Securities,
if any, actually issued upon the exercise
thereof were issued at the time of issue of
such Options and the consideration received
by the Company for Additional Shares of
Common Stock deemed to have been then issued
was the consideration actually received by
the Company for the issue of all such
Options, whether or not exercised, plus the
consideration deemed to have been received
by the Company (determined pursuant to
Section 3.4(e)) upon the issue of the
Convertible Securities with respect to which
such Options were actually exercised;
(iv) no readjustment pursuant to Sections 3.4(c)(ii)
or (iii) above shall have the effect of increasing
the Stock Purchase Price to an amount which exceeds
the lower of (1) the Stock Purchase Price on the
original adjustment date, or (2) the Stock Purchase
Price that would have resulted from any issuance of
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Additional Shares of Common Stock between the
original adjustment date and such readjustment date;
(v) in the case of any Options which expire by their
terms not more than sixty (60) days after the date of
issue thereof, no adjustment of the Stock Purchase
Price shall be made, except to the extent this
Warrant is exercised in such period, until the
expiration or exercise of all such Options, whereupon
such adjustment shall be made in the same manner
provided in Section 3.4(c)(iii) above; and
(vi) if any such record date shall have been fixed
and such Options or Convertible Securities are not
issued on the date fixed therefor, the adjustment
previously made in the Stock Purchase Price which
became effective on such record date shall be
canceled as of the close of business on such record
date, and shall instead be made on the actual date of
issuance, if any, of such Options or Convertible
Securities.
(d) ADJUSTMENT OF PURCHASE PRICE UPON ISSUANCE OF ADDITIONAL
SHARES OF COMMON STOCK. In the event the Company shall issue Additional Shares
of Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 3.4(c)) without consideration or for a consideration per
share less than the Stock Purchase Price in effect on the date of and
immediately prior to such issue, then and in such event, the Stock Purchase
Price shall be reduced, concurrently with such issue, to a price (calculated to
the nearest cent) determined by multiplying the Stock Purchase Price then in
effect by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding (determined on a fully diluted basis, as described
below) immediately prior to such issue plus the number of shares of Common Stock
which the aggregate consideration received by the Company for the total number
of Additional Shares of Common Stock so issued would purchase at the Stock
Purchase Price then in effect, and the denominator of which shall be the number
of shares of Common Stock outstanding (determined on a fully diluted basis, as
described below) immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued. For the purposes of the above
calculation, the number of shares of Common Stock outstanding immediately prior
to such issuance shall be calculated on a fully diluted basis, as if all shares
of Convertible Securities had been fully converted into shares of Common Stock
immediately prior to such issuance and this Warrant and any outstanding Options
had been fully exercised immediately prior to such issuance (and the resulting
securities fully converted into shares of Common Stock, if so convertible) as of
such date but not including in such calculation any additional shares of Common
Stock issuable with respect to this Warrant, Convertible Securities or
outstanding Options solely as a result of the adjustment of the Stock Purchase
Price (or other conversion ratios) resulting from the issuance of Additional
Shares of Common Stock causing such adjustment. For the purposes of the
foregoing, outstanding Options shall be deemed to include (without
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duplication) any Options issued to directors, officers, employees or advisors
of, or consultants to, the Company in accordance with plans or other
arrangements approved by the Board of Directors of the Company.
(e) DETERMINATION OF CONSIDERATION. For purposes of this
Section 3.4, the consideration received by the Company for the issuance of any
Additional Shares of Common Stock shall be computed as follows:
(i) CASH AND PROPERTY. Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash
received by the Company, excluding amounts
paid or payable for accrued interest or
accrued dividends;
(B) insofar as it consists of services,
goods or other property other than cash, be
computed at the fair value thereof at the
time of such issue, as determined in good
faith by the Board of Directors of the
Company; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares
or securities or other assets of the Company
for consideration which covers both cash and
services, goods or other property other than
cash, be in the proportion of such
consideration so received, computed as
provided in clauses (A) and (B) above, as
determined in good faith by the Board of
Directors of the Company.
(ii) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for
Additional Shares of Common Stock deemed to have been
issued pursuant to Section 3.4(c) relating to Options
and Convertible Securities, shall be determined by
dividing:
(A) the total amount, if any, received or
receivable by the Company as consideration
for the issue of such Options or Convertible
Securities, plus the maximum aggregate
amount of additional consideration (as set
forth in the instruments relating thereto,
without regard to any provision contained
therein designed to protect against
dilution) payable to the Company upon the
exercise of such Options or the conversion
or exchange of such Convertible Securities,
or in the case of Options for Convertible
Securities, the exercise of such Options for
Convertible
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Securities and the conversion or exchange of
such Convertible Securities by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments
relating thereto, without regard to any
provision contained therein designed to
protect against dilution) issuable upon the
exercise of such Options or the conversion
or exchange of such Convertible Securities.
3.5 NOTICES OF ADJUSTMENT.
(a) Immediately upon any adjustment in the
number or class of shares subject to this Warrant and of the Stock Purchase
Price, the Company shall give written notice thereof to the Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(b) The Company shall give written notice to
the Holder at least 10 business days prior to the date on which the Company
closes its books or takes a record for determining rights to receive any
dividends or distributions.
(c) The Company shall also give written notice
to the Holder at least 20 business days prior to the date on which a Change
shall take place.
4. ISSUE TAX. The issuance of certificates for shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
Holder of this Warrant for any issue tax (other than any applicable income
taxes) 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 certificate in a name other than that of the
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its
transfer books against the transfer of any warrant or of any shares of Common
Stock issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO DIMINUTION OF VALUE. The Company will not take any action
to terminate this Warrant or to diminish it in value.
7. FURNISH INFORMATION. The Company will promptly deliver to the
Holder upon request copies of all financial statements, reports and proxy
statements which the Company shall have sent to its stockholders generally.
8. 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 or to receive notice as a stockholder of
the Company or any other matters or any rights whatsoever as a stockholder of
the Company. No dividends or interest shall be payable or
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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 Common 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 stockholder of the
Company, whether such liability is asserted by the Company or by its creditors.
9. WARRANTS TRANSFERABLE. Subject to compliance with applicable
federal and state securities laws, this Warrant and all rights hereunder are
transferable to any affiliate of Holder, in whole or in part, without charge to
the holder hereof (except for transfer taxes), upon surrender of this Warrant
properly endorsed. Each taker and holder of this Warrant, by taking or holding
the same, consents and agrees that this Warrant, when endorsed in blank, shall
be deemed negotiable, and that the holder hereof, when this Warrant shall have
been so endorsed, may be treated by the Company, at the Company's option, and
all other persons dealing with this Warrant as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented by this
Warrant, or to the transfer hereof on the books of the Company any notice to the
contrary notwithstanding; but until such transfer on such books, the Company may
treat the registered owner hereof as the owner for all purposes.
10. [INTENTIONALLY OMITTED.]
11. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights
and obligations of the Company, of the Holder and of the holder of shares of
Common Stock issued upon exercise of this Warrant, shall survive the exercise of
this Warrant.
12. COMPLETE AGREEMENT, MODIFICATION AND WAIVER. This Warrant and
any documents referred to herein or executed contemporaneously herewith
constitute the parties' entire agreement with respect to the subject matter
hereof and supersede all agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. 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.
13. ADDITIONAL DOCUMENTS. Each party hereto agrees to execute any
and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Warrant.
14. NOTICES. All notices, requests and approvals required by this
Warrant (i) shall be in writing, (ii) shall be addressed to the parties as
indicated below unless notified in writing of a change in address and (iii)
shall be deemed to have been given, made and received only (a) upon delivery, if
personally delivered to a party, (b) one business day after the date of
dispatch, if by facsimile transfer, (c) one business day after deposit, if
delivered by a nationally recognized courier service offering guaranteed
overnight delivery, (d) three business days after deposit in the U.S. First
Class Mail, or certified mail, postage prepaid, at the addresses appearing below
or (e) one business day after electronic transmission.
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15. 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. All of the
obligations of the Company relating to the Common 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.
16. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description
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 Delaware.
17. LOST WARRANTS. 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 this Warrant 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, the Company, at its expense,
will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
18. 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. However, the
fractional amount shall be used in calculating any future adjustments pursuant
to Section 3 hereof. The Company shall, in the case of the final exercise under
this Warrant, make a cash payment for any fractional shares based on the closing
price on the date of exercise of a share of Common Stock on the principal
exchange or system on which the Common Stock is then listed or traded, or, if
not then listed or traded on such exchange or system, the mean of the closing
bid and asked prices on an automated quotation system, or, if such quotations
are not available, such value as may be determined in good faith by the
Company's Board of Directors, which determination shall be conclusively binding
on the parties. Notwithstanding any changes in the Stock Purchase Price or the
number of shares issuable upon exercise of this Warrant, this Warrant, and any
Warrants issued in replacement or upon transfer thereof, may continue to state
the initial Stock Purchase Price and the initial number of shares issuable upon
exercise of this Warrant. Alternatively, the Company may elect to issue a new
Warrant or Warrants of like tenor for the additional shares of Common Stock
purchasable hereunder or, upon surrender of the existing Warrant, to issue a
replacement Warrant evidencing all the shares to which the Holder is entitled
after such adjustments.
19. SEVERABILITY. The validity, legality or enforceability of the
remainder of this Warrant shall not be affected even if one or more of its
provisions shall be held to be invalid, illegal or unenforceable in any respect.
20. ATTORNEYS' FEES. Should any litigation or arbitration be
commenced (including any proceedings in a bankruptcy court) between the parties
hereto or their representatives concerning any provision of this Warrant or the
rights and duties of any person or entity
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hereunder, the party or parties prevailing in such proceeding shall be entitled,
in addition to such other relief as may be granted, to the attorneys' fees and
court costs incurred by reason of such litigation or arbitration.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized this 8th day of June, 2000.
FVC.COM, INC.
a Delaware corporation
By: /s/ Richard Beyer
-------------------------------------
President and Chief Executive Officer
ATTEST:
/s/ Truman Cole
------------------------------------
Assistant Secretary
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EXHIBIT A
SUBSCRIPTION FORM
Date: _________________, 2000
FVC.COM, INC.
3393 OCTAVIUS DRIVE, SUITE 102
SANTA CLARA, CA 95054
Attn: President
Ladies and Gentlemen:
The undersigned hereby elects to exercise the warrant issued to it by
FVC.COM, Inc. (the "COMPANY") and dated June 8, 2000, Warrant No. CSW-7 (the
"WARRANT") and to purchase thereunder __________________________________ shares
of the Common Stock of the Company (the "SHARES") at a purchase price of
___________________________________________ Dollars ($__________) per Share or
an aggregate purchase price of __________________________________ Dollars
($__________) (the "PURCHASE PRICE").
Pursuant to the terms of the Warrant the undersigned has delivered the
Stock Purchase Price herewith in full in cash or by certified check or wire
transfer.
Very truly yours,
_______________________________________
By:____________________________________
Title:_________________________________
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