EXHIBIT 4.19
SERIES G
WARRANT AGREEMENT
This WARRANT AGREEMENT (this "Agreement") is made and entered into as of
_______________, 20__, between Raptor Networks Technology, Inc., a Colorado
corporation (the "Company") and _______________________________________________
("Holder").
R E C I T A L S
WHEREAS, the Company proposes to issue to Holder the number of warrants
(the "Warrants") set forth on the Warrant Certificate attached hereto, each such
Warrant entitling the holder thereof to purchase one share of Common Stock of
the Company (the "Exercise Shares," "Shares," or the "Common Stock"); and
WHEREAS, the Warrants which are the subject of this Agreement will be
issued by the Company to Holder as part of consideration payable to Holder in
connection with an investment by the Holder pursuant to the private offering by
the Company as described in the Company's Private Placement Memorandum dated
March 15, 2005 (the "Offering").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
A G R E E M E N T
1. WARRANT CERTIFICATES. The warrant certificates to be delivered pursuant
to this Agreement (the "Warrant Certificates") shall be in the form set forth in
Exhibit A, attached hereto and made a part hereof, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Warrant Agreement.
2. DURATION, EXERCISE, AND REDEMPTION OF WARRANTS. Each Warrant may be
exercised from the date of this Agreement until 11:59 P.M. (Pacific time) on the
date which is five full years from the date of this Agreement, or until the
Company calls the Warrant pursuant to Section 2.3, whichever comes first (the
"Expiration Date").
Each Warrant not exercised on or before the Expiration Date shall
expire. Each Warrant shall entitle its holder to purchase from the Company one
share of Common Stock at an exercise price of $2.50 per share, subject to
adjustment as set forth below ("Exercise Price").
2.1 FRACTIONAL SHARES. The Company shall not be required to issue
fractional shares of common stock upon the exercise of this Warrant or to
deliver Warrant Certificates which evidence fractional shares of common stock.
In the event that a fraction of an Exercise Share would, except for the
provisions of this paragraph 2.1, be issuable upon the exercise of this Warrant,
the Company shall pay to the Holder exercising the Warrant an amount in cash
equal to such fraction multiplied by the current market value of the Exercise
Share.
2.2 CURRENT MARKET VALUE. For purposes of this Agreement, the current
market value shall be determined as follows:
(a) if the Exercise Shares are traded in the over-the-counter
market and not on any national securities exchange and not in the NASDAQ
Reporting System, the average of the last bid and asked prices per share, as
reported by the National Quotation Bureau, Inc., or an equivalent generally
accepted reporting service, for the last Trading Day (as defined below) prior to
the date on which this Warrant is exercised, or, if not so reported, the average
of the closing bid and asked prices for an Exercise Share as furnished to the
Company by any member of the National Association of Securities Dealers, Inc.,
selected by the Company for that purpose;
(b) if the Exercise Shares are listed or traded on a national
securities exchange or in the NASDAQ Reporting System, the closing price on the
principal national securities exchange on which they are so listed or traded or
in the NASDAQ Reporting System, as the case may be, on the last Trading Day
prior to the date of the exercise of this Warrant. The closing price referred to
in this Clause (b) shall be the last reported sales price or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices, in either case on the national securities exchange on which
the Exercise Shares are then listed or in the NASDAQ Reporting System; or
(c) if no such closing price or closing bid and asked prices are
available, as determined in any reasonable manner as may be prescribed by the
Board of Directors of the Company.
2.3 CALL OF WARRANTS BY THE COMPANY. Subject to the terms and
conditions set forth herein, on any date during the period between the date of
this Agreement and the Expiration Date, on or after the first day after the 30
Trading Day (as defined below) average price of the Common Stock exceeds $3.50
per share (the "Call Date"), the Company shall have the right to deliver written
notices to the Holder (each, a "Call Notice" and the day a Call Notice is
delivered, a "Delivery Date"), providing the Company with an option to call, on
the third Trading Day following the receipt of the Call Notice ("the Exercise
Date"), any or all Warrants. The Company may not deliver a Call Notice unless
and until all of the conditions set forth in Section 2.3 have been satisfied by
the Company or waived by the Holder.
As used herein, "Trading Day" means a day on which the shares of
Common Stock are traded on the Nasdaq SmallCap Market ("NASDAQ") or the New York
Stock Exchange, Inc., American Stock Exchange, Inc., or Nasdaq National Market
("Subsequent Market") on which the shares of Common Stock are then listed or
quoted, or (b) if the shares of Common Stock are not listed on the NASDAQ or a
Subsequent Market, a day on which the shares of Common Stock are traded in the
over-the-counter market, as reported by the OTC Bulletin Board, or (c) if the
shares of Common Stock are not quoted on the OTC Bulletin Board, a day on which
the shares of Common Stock are quoted in the over-the-counter market as reported
by the National Quotation Bureau Incorporated (or any similar organization or
agency succeeding its functions of reporting prices); PROVIDED, HOWEVER, that in
the event that the shares of Common Stock are not listed or quoted as set forth
in (a), (b) and (c) hereof, then Trading Day shall mean any calendar day that is
not a Saturday, Sunday or federal holiday.
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(a) CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO DELIVER A
CALL NOTICE. The right of the Company to deliver a Call Notice is subject to the
satisfaction by the Company or waiver by the Holder, at or before the applicable
Delivery Date and the applicable Exercise Date, of each of the following
conditions:
(i) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES
IN THE INVESTORS' RIGHTS AGREEMENT. Any material representations and warranties
of the Company contained in the Investors' Rights Agreement, dated March 22,
2005, by and between the Company and Holder shall be true and correct as of the
date when made, as of the applicable Delivery Date as though made on and as of
the applicable Delivery Date and as of the applicable Exercise Date as though
made on and as of the applicable Exercise Date;
(ii) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all material
covenants, agreements and conditions required by this Agreement and the
Investors' Rights Agreement to be performed, satisfied or complied with by the
Company at or prior to the applicable Delivery Date and the applicable Exercise
Date;
(iii) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement and the Investors' Rights Agreement;
(vi) TRADING THRESHOLD. For the 30 Trading Days immediately
preceding the applicable Delivery Date, the average of the Per Share Market
Value (as defined below) for such 30 Trading Days shall be at least $3.50.
As used herein, "Per Share Market Value" means on any
particular date (a) the closing bid price per share of Common Stock on such date
on the NASDAQ or on such Subsequent Market on which the shares of Common Stock
are then listed or quoted, or if there is no such price on such date, then the
average of the closing bid and asked prices on the NASDAQ or on such Subsequent
Market on the date nearest preceding such date, or (b) if the shares of Common
Stock are not then listed or quoted on the NASDAQ or a Subsequent Market, the
average of the closing bid and asked prices for a share of Common Stock in the
over-the-counter market, as reported by the National Quotation Bureau
Incorporated or similar organization or agency succeeding to its functions of
reporting prices) at the close of business on such date, or (c) if the shares of
Common Stock are not then reported by the National Quotation Bureau Incorporated
(or similar organization or agency succeeding to its functions of reporting
prices), then the average of the "Pink Sheet" quotes for the relevant conversion
period, as determined in good faith by the Holder, or (d) if the shares of
Common Stock are not then publicly traded, the fair market value of a share of
Common Stock as determined by an appraiser selected in good faith by the Holders
of a majority in interest of the Warrants then outstanding; and
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(v) NOTICE. Notice of the Call Date shall be given to
registered holders of Warrants in the manner provided in Section 12.
3. MUTILATED OR MISSING WARRANT CERTIFICATES. In case any of the Warrant
Certificates shall be mutilated, lost, stolen or destroyed prior to its
Expiration Date, the Company shall issue and deliver, in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, or
in lieu of and in substitution for the Warrant Certificate lost, stolen or
destroyed, upon receipt of an indemnity reasonably satisfactory to the Company,
a new Warrant Certificate of like tenor and representing an equivalent right or
interest.
4. RESERVATION OF SHARES. The Company will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Shares or its authorized and issued Shares held in its treasury for
the purpose of enabling it to satisfy its obligation to issue Shares upon
exercise of Warrants, the full number of Shares deliverable upon the exercise of
all outstanding Warrants.
The Company covenants that all Shares which may be issued upon
exercise of Warrants in accordance with this Warrant Agreement will be validly
issued, fully paid and nonassessable outstanding Shares of the Company.
5. RIGHTS OF HOLDER. The Holder shall not, by virtue of anything contained
in this Warrant Agreement or otherwise, prior to exercise of this Warrant, be
entitled to any right whatsoever, either in law or equity, of a stockholder of
the Company, including without limitation, the right to receive dividends or to
vote or to consent or to receive notice as a shareholder in respect of the
meetings of shareholders or the election of directors of the Company of any
other matter.
6. INVESTMENT INTENT. Holder represents and warrants to the Company that
Holder is acquiring the Warrants for investment and with no present intention of
distributing or reselling any of the Warrants.
7. CERTIFICATES TO BEAR LANGUAGE. The Warrants and the certificate or
certificates therefor shall bear the following legend by which each holder shall
be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES
OF COMMON STOCK (OR OTHER SECURITIES) ISSUABLE UPON EXERCISE
THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE."
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The Shares and the certificate or certificates evidencing any
such Shares shall bear the following legend:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE SHARES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE."
Certificates for Warrants without such legend shall be issued
if such warrants or shares are sold pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), or if the
Company has received an opinion from counsel reasonably satisfactory to counsel
for the Company, that such legend is no longer required under the Act.
8. REGISTRATION RIGHTS. The Holder of this Warrant has been granted certain
registration rights by the Company. These registration rights are set forth in
an Investors' Rights Agreement, dated March 22, 2005, by and between the Company
and Holder.
9. ADJUSTMENT OF NUMBER OF SHARES AND CLASS OF CAPITAL STOCK PURCHASABLE.
The number of Shares and class of capital stock purchasable under this Warrant
Agreement are subject to adjustment from time to time as set forth in this
Section.
(a) Adjustment for Change in Capital Stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock,
in each case, in shares of its Common Stock; (ii) subdivides its outstanding
shares of Common Stock into a greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
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(v) issues by reclassification of its shares of Common Stock any
shares of its capital stock;
then the number and classes of shares purchasable upon exercise of each Warrant
in effect immediately prior to such action shall be adjusted so that the holder
of any Warrant thereafter exercised may receive the number and classes of shares
of capital stock of the Company which such holder would have owned immediately
following such action if such holder had exercised the Warrant immediately prior
to such action.
For a dividend or distribution the adjustment shall become
effective immediately after the record date for the dividend or distribution.
For a subdivision, combination or reclassification, the adjustment shall become
effective immediately after the effective date of the subdivision, combination
or reclassification.
If after an adjustment the Holder, upon exercise of a Warrant,
may receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company shall in good faith determine the allocation
of the adjusted Exercise Price between or among the classes of capital stock.
After such allocation, that portion of the Exercise Price applicable to each
share of each such class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Common Stock in this
Agreement. Notwithstanding the allocation of the Exercise Price between or among
shares of capital stock as provided by this Section 9(a), a Warrant may only be
exercised in full by payment of the entire Exercise Price currently in effect.
(b) CONSOLIDATION, MERGER OR SALE OF THE COMPANY. If the Company is a
party to a consolidation, merger or transfer of assets which reclassifies or
changes its outstanding Common Stock, the successor corporation (or corporation
controlling the successor corporation or the Company, as the case may be) shall
by operation of law assume the Company's obligations under this Warrant
Agreement. Upon consummation of such transaction the Warrants shall
automatically become exercisable for the kind and amount of securities, cash or
other assets which the holder of a Warrant would have owned immediately after
the consolidation, merger or transfer if the holder had exercised the Warrant
immediately before the effective date of such transaction. As a condition to the
consummation of such transaction, the Company shall arrange for the person or
entity obligated to issue securities or deliver cash or other assets upon
exercise of the Warrant to, concurrently with the consummation of such
transaction, assume the Company's obligations hereunder by executing an
instrument so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section 9.
10. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or Holder shall bind and inure to the benefit of
their respective successor and assigns hereunder.
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11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all proposes be deemed to
be an original, and such counterparts shall together constitute by one and the
same instrument.
12. NOTICES. Any notice, request, instruction, or other document required
by the terms of this Agreement, or deemed by any of the parties hereto to be
desirable, to be given to any other party hereto shall be in writing and shall
be given by facsimile, personal delivery, overnight delivery, or mailed by
registered or certified mail, postage prepaid, with return receipt requested, to
the address of the Holder as set forth in Holder's subscription document and to
the address of the Company as set forth in the Company's Private Placement
Memorandum dated March 15, 2005. The persons and addresses set forth above may
be changed from time to time by a notice sent as aforesaid. If notice is given
by facsimile, personal delivery, or overnight delivery in accordance with the
provisions of this Section, said notice shall be conclusively deemed given at
the time of such delivery. If notice is given by mail in accordance with the
provisions of this Section, such notice shall be conclusively deemed given seven
days after deposit thereof in the United States mail.
13. SUPPLEMENTS AND AMENDMENTS. The Company may from time to time
supplement or amend this Warrant Agreement without the approval of any Holders
in order to cure any ambiguity or to be correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision, or to make any other provisions in regard to matters or questions
herein arising hereunder which the Company may deem necessary or desirable and
which shall not materially adversely affect the interest of the Holder. All
other supplements or amendments to this Warrant Agreement must be signed by the
party against whom such supplement or amendment is to be enforced.
14. SEVERABILITY. If for any reason any provision, paragraph or term of
this Warrant Agreement is held to be invalid or unenforceable, all other valid
provisions herein shall remain in full force and effect and all terms,
provisions and paragraphs of this Warrant shall be deemed to be severable.
15. GOVERNING LAW AND VENUE. This Warrant shall be deemed to be a contract
made under the laws of the State of California and for all purposes shall be
governed and construed in accordance with the laws of said State, without
reference to the choice of law principles thereof. Any proceeding arising under
this Warrant Agreement shall be instituted in the County of Orange, State of
California.
[CONTINUED ON NEXT PAGE]
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16. HEADINGS. Paragraphs and subparagraph headings, used herein are
included herein for convenience of reference only and shall not affect the
construction of this Warrant Agreement nor constitute a part of this Warrant
Agreement for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
"COMPANY"
RAPTOR NETWORKS TECHNOLOGY, INC.
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: CFO
"HOLDER"
-----------------------------------------
By:
Name:
Title:
8
Exhibit A
.THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK (OR OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
Warrant Certificate No. W-G-___
SERIES G WARRANT TO PURCHASE __________ SHARES OF COMMON STOCK
RAPTOR NETWORKS TECHNOLOGY, INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF COLORADO
This certifies that, for value received, ______________________________________,
the registered holder hereof or assigns (the "Holder"), is entitled to purchase
from Raptor Networks Technology, Inc. (the "Company"), at any time prior to the
date which is five full years from the date of issuance of these Warrants at the
purchase price per share of $2.50 (the "Warrant Price"), the number of Shares of
Common Stock of the Company set forth above (the "Shares"). The number of Shares
issuable upon exercise of each Warrant evidenced hereby and the Warrant Price
shall be subject to adjustment from time to time as set forth in the Warrant
Agreement referred to below.
The Warrants evidenced hereby represent the right to purchase an aggregate of up
to the number of Shares of Common Stock of the Company set forth above, subject
to certain adjustments, and are issued under and in accordance with a Warrant
Agreement of even date herewith (the "Warrant Agreement"), between the Company
and the Holder and are subject to the terms and provisions contained in the
Warrant Agreement, to all of which the Holder by acceptance hereof consents. All
capitalized terms in this Warrant Certificate, to the extent not otherwise
defined herein, shall have the meaning assigned to such terms in the Warrant
Agreement.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Purchase Form attached hereto
duly executed (with a signature guarantee as provided thereon) and simultaneous
payment of the Warrant Price at the principal office of the Company. Payment of
such price shall be made as described in the Warrant Agreement.
Upon any partial exercise of the Warrants evidenced hereby, there shall be
signed and issued to the Holder a new Warrant Certificate in respect of the
Shares as to which the Warrants evidenced hereby shall not have been exercised.
These Warrants may be exchanged at the office of the Company by surrender of
this Warrant Certificate properly endorsed for one or more new Warrants of the
same aggregate number of Shares as evidenced by the Warrant or Warrants
exchanged. No fractional Shares of Common Stock will be issued upon the exercise
of rights to purchase hereunder, but the Company shall pay the cash value of any
fraction upon the exercise of one or more Warrants in accordance with the
Warrant Agreement. These Warrants are transferable at the office of the Company
in the manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Holder to any of the rights of a
stockholder of the Company unless and until the Holder exercises its rights to
purchase Shares hereunder.
RAPTOR NETWORKS TECHNOLOGY, INC.
Dated: _______________ By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: CFO
RAPTOR NETWORKS TECHNOLOGY, INC.
PURCHASE FORM
RAPTOR NETWORKS TECHNOLOGY, INC.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, ____________ Shares of Common Stock (the "Shares") provided for
therein, and requests that certificates for the Shares be issued in the name of:
________________________________________________________________________________
(Please Print or Type Name)
________________________________________________________________________________
(Address, including zip code)
________________________________________________________________________________
(Social Security No. or Tax I.D. No.)
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant Certificate for the balance of the Shares purchasable under
the within Warrant Certificate be registered in the name of the undersigned
Holder or his Assignee as below indicated and delivered to the address stated
below.
Name of Holder
or Assignee:____________________________________________________________________
(Please Print)
Address:________________________________________________________________________
________________________________________________________________________________
Signature:_________________________________________ Dated:______________________
Note: The above signature must correspond with the name as written upon the
face of this Warrant Certificate in every particular, without
alteration or enlargement or any change whatever, unless these Warrants
have been assigned.
Signatures Guaranteed:__________________________________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the assignee named below all of the rights of the undersigned represented
by the attached Warrant with respect to the number of Shares covered by the
Warrant set forth below:
(Name and Address of Assignee Must Be Printed or Typewritten)
Name of Assignee Social Security No. Address No. of
or Tax ID No. Shares
________________________________________________________________________________
and does hereby irrevocably constitute and appoint ____________________________
Attorney to transfer said Warrants on the books of the Company, with full power
of substitution in the premises.
Dated: _______________ __________________________________________
Signature of Registered Holder
Note: The signature on this assignment must correspond with the name as it
appears upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change whatever.
Signature Guaranteed: (Signature must be guaranteed by a bank or trust company
having an office or correspondent in the United States or by a member firm of a
registered securities exchange or the National Association of Securities
Dealers, Inc.)