1
Exhibit 4.4
CONDOR SYSTEMS, INC.
WARRANT FOR THE PURCHASE OF CLASS C
COMMON STOCK OF CONDOR SYSTEMS, INC.
NO. ____ WARRANT TO PURCHASE
SHARES EQUAL TO ▇▇▇▇▇▇'S WARRANT AMOUNT
(AS DEFINED IN THE SUBSCRIPTION AGREEMENT)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT (AS
HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE
COMPANY OR ANY SUCCESSOR THERETO.
THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS (CONSISTING OF SHARES OF SENIOR PREFERRED STOCK
(THE "PREFERRED STOCK") AND WARRANTS). PRIOR TO 90 DAYS AFTER THE
CLOSING (AS DEFINED IN THE SUBSCRIPTION AGREEMENT), THE WARRANTS
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH,
THE PREFERRED STOCK.
FOR VALUE RECEIVED, CONDOR SYSTEMS, INC., a California corporation (the
"COMPANY"), hereby certifies that ______________________, its successor or
permitted assigns (the "HOLDER"), is entitled, subject to the provisions of this
Warrant, to purchase from the Company a number of fully paid and non-assessable
shares of Class C Common Stock of the Company, par value
2
$0.001 per share (the "WARRANT SHARES") equal to the Holder's Warrant Amount (as
defined in the Subscription Agreement), at a purchase price per share equal to
the Exercise Price (as hereinafter defined). The number of Warrant Shares to be
received upon the exercise of this Warrant and the price to be paid for a
Warrant Share are subject to adjustment from time to time as hereinafter set
forth.
This Warrant is one of one or more warrants (each individually, a
"WARRANT" and, collectively, the "WARRANTS") of the same form and having the
same terms as this Warrant, entitling the holders thereof to purchase initially
up to an aggregate of 3,100,000 shares of Class C Common Stock. The Warrants
have been issued pursuant to the Subscription Agreement providing for the
purchase and issuance of the Securities (as defined therein). The Holder is
entitled to certain benefits and is subject to certain obligations as set forth
in the Investors Agreement (as defined below). The Company shall keep a copy of
the Subscription Agreement and the Investors Agreement, and any amendments
thereto, at its principal executive office and shall furnish, without charge,
copies thereof to the Holder upon request.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following
meanings:
"AFFILIATE" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"CLASS C COMMON STOCK" means the Class C Common Stock of the Company,
par value $0.001 per share, or any other security for which this Warrant may be
exercised pursuant to the terms hereof.
"DULY ENDORSED" means duly endorsed in blank by the Person or Persons in
whose name a stock certificate is registered or accompanied by a duly executed
stock assignment separate from the certificate, in each case, with the
signature(s) thereon guaranteed by a commercial bank or trust company or a
member of a national securities exchange or of the National Association of
Securities Dealers, Inc.
"EXERCISE PRICE" means $0.01 per Warrant Share, as such Exercise Price
is adjusted from time to time as provided herein.
2
3
"EXPIRATION DATE" means April 30, 2010 at 5:00 p.m. Pacific Standard time.
"FAIR MARKET VALUE" means, with respect to one share of Class C Common
Stock, on any date, the Current Market Price per share of Class C Common Stock
as defined in paragraph (h)(6) hereof.
"INVESTORS AGREEMENT" means the Investors' Agreement dated as of April
15, 1999 among the Company and the Shareholders (as defined therein).
"PERSON" means an individual, partnership, corporation, limited
liability company, trust, joint stock company, association, joint venture, or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"SECURITIES" means the Senior Preferred Stock and the Warrants purchased
pursuant to the Subscription Agreement.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement dated as of
April 30, 2000 among the Company and the purchasers of Securities (as defined
therein) listed on the signature pages thereto.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant in whole or
in part at any time, or from time to time, until the Expiration Date or,
if such day is not a Business Day, then on the next succeeding day that
shall be a Business Day. To exercise this Warrant, the Holder shall
execute and deliver to the Company a Warrant Subscription Form forming a
part hereof duly executed by the Holder and payment of the applicable
Exercise Price for each Warrant Share subject to such exercise. Upon
such delivery and payment, the Holder shall be deemed to be the holder
of record of the Warrant Shares subject to such exercise,
notwithstanding that the stock transfer books of the Company shall then
be closed or that certificates representing such Warrant Shares shall
not then be actually delivered to the Holder. Notwithstanding anything
herein to the contrary, in lieu of payment in cash of the applicable
Exercise Price, the Holder may elect (i) to receive upon exercise of
this Warrant, the number of Warrant Shares otherwise to be acquired
reduced by a number of shares of Class C Common Stock having the
aggregate Fair Market Value equal to the aggregate Exercise Price for
the Warrant Shares otherwise to be acquired, (ii) to deliver as payment,
in whole or in part of the aggregate Exercise
3
4
Price, shares of Class C Common Stock having the aggregate Fair Market
Value equal to the aggregate Exercise Price for the Warrant Shares in
respect of which the Exercise Price is not being paid in cash or (iii)
to deliver as payment, in whole or in part of the aggregate Exercise
Price, such number of Warrants which, if exercised, would result in a
number of shares of Class C Common Stock having an aggregate Fair Market
Value equal to (x) the aggregate Exercise Price for the Warrant Shares
in respect of which the Exercise Price is not being paid in cash plus
(y) the Exercise Price of the Warrants so delivered.
(2) The Exercise Price may be paid in cash or by certified or
official bank check or bank cashier's check payable to the order of the
Company or by any combination of such cash or check. The Company shall
pay any and all documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of the Warrant Shares.
(3) If the Holder exercises this Warrant in part, this Warrant
Certificate shall be surrendered by the Holder to the Company and a new
Warrant Certificate of the same tenor and for the unexercised number of
Warrant Shares shall be executed by the Company. The Company shall
register the new Warrant Certificate in the name of the Holder or in
such name or names of its transferee pursuant to paragraph (f) hereof as
may be directed in writing by the Holder and deliver the new Warrant
Certificate to the Person or Persons entitled to receive the same.
(4) Upon surrender of this Warrant Certificate in conformity
with the foregoing provisions, the Company shall transfer to the Holder
of this Warrant Certificate (or its transferee) appropriate evidence of
ownership of shares of Class C Common Stock or other securities or
property (including any money) to which the Holder is entitled,
registered or otherwise placed in, or payable to the order of, the name
or names of the Holder or such transferee as may be directed in writing
by the Holder.
(c) RESTRICTIVE LEGENDS. Certificates representing shares of Class C
Common Stock issued pursuant to this Warrant shall bear legends substantially in
the form of the legends set forth on the first page of this Warrant Certificate
to the extent that and for so long as such legends are required pursuant to the
Investors' Agreement, the Subscription Agreement or applicable securities laws.
4
5
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of this Warrant
such number of its authorized but unissued shares of Class C Common Stock or
other securities of the Company from time to time issuable upon exercise of this
Warrant as will be sufficient to permit the exercise in full of this Warrant.
All such shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and non-assessable, free and clear of all
liens, security interests, charges and other encumbrances or restrictions on
sale and free and clear of all preemptive rights, except to the extent set forth
in the Investors' Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price per share of Class C Common Stock (as defined in
paragraph (h)(6)) at the date of such exercise.
The Company further agrees that it will not change the par value of the
Class C Common Stock from $0.001 per share to any higher par value which exceeds
the Exercise Price then in effect, and will reduce the par value of the Class C
Common Stock upon any event described in paragraph (h) that would, but for this
provision, reduce the Exercise Price below the par value of the Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject to the
provisions of (i) the Investors' Agreement, including the applicable
restrictions on transfer, and (ii) the provisions of the Subscription
Agreement which specifies in Section 1.04 that this Warrant will after a
specified period, become detachable from and transferable separately
from the shares of Senior Preferred Stock. Each holder of this Warrant
Certificate by holding the same, consents and agrees that the registered
holder hereof may be treated by the Company and all other persons
dealing with this Warrant Certificate as the absolute owner hereof for
any purpose and as the person entitled to exercise the rights
represented hereby.
(2) Subject to compliance with the transfer restrictions set
forth in the Investors' Agreement and with applicable securities laws,
upon
5
6
surrender of this Warrant to the Company, together with the attached
Warrant Assignment Form duly executed, the Company shall, without
charge, execute and deliver a new Warrant in the name of the assignee or
assignees named in such instrument of assignment and, if the Holder's
entire interest is not being assigned, in the name of the Holder and
this Warrant shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the Company of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the loss, theft, destruction or mutilation of this Warrant Certificate, and (in
the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant
Certificate, if mutilated, the Company shall execute and deliver a new Warrant
Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and the
number of Class C Common Stock for which this Warrant may be exercised shall be
subject to adjustment from time to time upon the occurrence of certain events as
provided in this paragraph (h).
(1) In case the Company shall at any time after the date hereof
(i) declare a dividend or make a distribution on Class C Common Stock
payable in shares of Class C Common Stock, (ii) subdivide or split the
outstanding shares of Class C Common Stock, (iii) combine or reclassify
the outstanding shares of Class C Common Stock into a smaller number of
shares, or (iv) issue any shares of its capital stock in a
reclassification of shares of Class C Common Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is a party), the Exercise Price in effect at the time of the
record date for such dividend or distribution or of the effective date
of such subdivision, split, combination or reclassification shall be
proportionately adjusted so that, giving effect to paragraph (h)(9), the
exercise of this Warrant after such time shall entitle the holder to
receive the aggregate number of shares of Class C Common Stock (or other
securities into which such shares of Class C Common Stock have been
reclassified pursuant to clause (iii) or (iv) above) which, if this
Warrant had been exercised immediately prior to such time, such holder
would have owned upon such exercise and been entitled to receive by
virtue of such dividend, distribution, subdivision, split, combination
or reclassification. Such adjustment shall be made successively whenever
any event listed above shall occur.
6
7
(2) In case the Company shall issue or sell any shares of Class
C Common Stock (other than shares of Class C Common Stock issued (I)
upon exercise of the Warrants, (II) pursuant to any stock option,
co-investment or other stock related employee compensation plan of the
Company approved by the Company's Board of Directors, (III) upon
exercise or conversion of any security the issuance of which caused an
adjustment under paragraphs (h)(3) or (h)(4) hereof or (IV) in any bona
fide registered public offering), the Exercise Price to be in effect
after such issuance or sale shall be determined by multiplying the
Exercise Price in effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (x) the number of
shares of Class C Common Stock outstanding immediately prior to the time
of such issuance or sale multiplied by the Current Market Price per
share of Class C Common Stock immediately prior to such issuance or sale
and (y) the aggregate consideration, if any, to be received by the
Company upon such issuance or sale, and the denominator of which shall
be the product of the aggregate number of shares of Class C Common Stock
outstanding immediately after such issuance or sale and the Current
Market Price Per share of Class C Common Stock immediately prior to such
issuance or sale but in no event will such fraction exceed 1. In case
any portion of the consideration to be received by the Company shall be
in a form other than cash, the fair market value of such noncash
consideration shall be utilized in the foregoing computation. Such fair
market value shall be determined by the Board of Directors of the
Company.
(3) In case the Company shall fix a record date for the issuance
of rights, options or warrants to the holders of its Class C Common
Stock or other securities entitling such holders to subscribe for or
purchase for a period expiring within 60 days of such record date shares
of Class C Common Stock (or securities convertible into Class C Common
Stock) at a price per share of Class C Common Stock (or having a
conversion price per share of Class C Common Stock, if a security
convertible into Class C Common Stock) less than the Current Market
Price per share of Class C Common Stock on such record date, the maximum
number of shares of Class C Common Stock issuable upon exercise of such
rights, options or warrants (or conversion of such convertible
securities) shall be deemed to have been issued and outstanding as of
such record date and the Exercise Price shall be adjusted pursuant to
paragraph (h)(2) hereof, as though such maximum number of shares of
Class C Common Stock had been so issued for the aggregate consideration
payable by the holders of such rights, options, warrants or convertible
securities prior to their receipt of such
7
8
shares of Class C Common Stock. In case any portion of such
consideration shall be in a form other than cash, the fair market value
of such noncash consideration shall be determined as set forth in
paragraph (h)(2) hereof. Such adjustment shall be made successively
whenever such record date is fixed; and in the event that such rights,
options or warrants are not so issued or expire unexercised, or in the
event of a change in the number of shares of Class C Common Stock to
which the holders of such rights, options or warrants are entitled
(other than pursuant to adjustment provisions therein which are no more
favorable in their entirety than those contained in this paragraph (h)),
the Exercise Price shall again be adjusted to be the Exercise Price
which would then be in effect if such record date had not been fixed, in
the former event, or the Exercise Price which would then be in effect if
such holder had initially been entitled to such changed number of shares
of Class C Common Stock, in the latter event.
(4) In case the Company shall sell or issue rights, options
(other than options issued pursuant to a plan described in clause II of
paragraph (h)(2)) or warrants entitling the holders thereof to subscribe
for or purchase shares of Class C Common Stock (or securities
convertible into shares of Class C Common Stock) or shall issue
convertible securities and the price per share of Class C Common Stock
of such rights, options, warrants or convertible securities (including,
in the case of rights, options, warrants or convertible securities, the
price at which they may be exercised or converted) is less than the
Current Market Price per share of Class C Common Stock, the maximum
number of shares of Class C Common Stock issuable upon exercise of such
rights, options or warrants or upon conversion of such convertible
securities shall be deemed to have been issued and outstanding as of the
date of such sale or issuance, and the Exercise Price shall be adjusted
pursuant to paragraph (h)(2) hereof as though such maximum number of
shares of Class C Common Stock had been so issued for an aggregate
consideration equal to the aggregate consideration paid for such rights,
options, warrants or convertible securities and the aggregate
consideration payable by the holders of such rights, options, warrants
or convertible securities prior to their receipt of such shares of Class
C Common Stock. In case any portion of such consideration shall be in a
form other than cash, the fair market value of such noncash
consideration shall be determined as set forth in paragraph (h)(2)
hereof. Such adjustment shall be made successively whenever such rights,
options, warrants or convertible securities are issued; and in the event
that such rights, options or warrants expire unexercised, or in the
event of a change in the number of shares of Class C Common Stock to
which the holders of such rights, options, warrants or convertible
8
9
securities are entitled (other than pursuant to adjustment provisions
therein which are no more favorable in their entirety than those
contained in this paragraph (h)), the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in effect if such
rights, options, warrants or convertible securities had not been issued,
in the former event, or the Exercise Price which would then be in effect
if such holders had initially been entitled to such changed number of
shares of Class C Common Stock, in the latter event. No adjustment of
the Exercise Price shall be made pursuant to this paragraph (h)(4) to
the extent that the Exercise Price shall have been adjusted pursuant to
paragraph (h)(3) upon the setting of any record date relating to such
rights, options, warrants or convertible securities and such adjustment
fully reflects the number of shares of Class C Common Stock to which the
holders of such rights, options, warrants or convertible securities are
entitled and the price payable therefor.
(5) In case the Company shall fix a record date for the making
of a distribution to holders of shares of Class C Common Stock
(including any such distribution made in connection with a consolidation
or merger in which the Company is a party) of evidences of indebtedness,
cash, assets or other property (other than dividends payable in shares
of Class C Common Stock or rights, options or warrants referred to in,
and for which an adjustment is made pursuant to, paragraphs (h)(3) or
(h)(4) hereof), the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of
which shall be the Current Market Price per share of Class C Common
Stock on such record date, less the fair market value (determined as set
forth in paragraph (h)(2) hereof) of the portion of the assets, cash,
other property or evidence of indebtedness so to be distributed which is
applicable to one share of Class C Common Stock, and the denominator of
which shall be such Current Market Price per share of Class C Common
Stock. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so
made, the Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect if such record date had not been
fixed.
(6) For the purpose of any computation under paragraph (e) or
paragraph (h)(2), (3), (4) or (5) hereof, on any determination date, the
Current Market Price per share of Class C Common Stock shall be deemed
to be the average (weighted by daily trading volume) of the Daily Prices
(as defined below) per share of Class C Common Stock for the 20
9
10
consecutive trading days ending three days prior to such date. "DAILY
PRICE" means (1) if the shares of Class C Common Stock then are listed
and traded on the New York Stock Exchange, Inc. ("NYSE"), the closing
price on such day as reported on the NYSE Composite Transactions Tape;
(2) if the shares of Class C Common Stock then are not listed and traded
on the NYSE, the closing price on such day as reported by the principal
national securities exchange on which the shares are listed and traded;
(3) if the shares of Class C Common Stock then are not listed and traded
on any such securities exchange, the last reported sale price on such
day on the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"); (4) if the shares
of Class C Common Stock then are not listed and traded on any such
securities exchange and not traded on the NASDAQ National Market, the
average of the highest reported bid and lowest reported asked price on
such day as reported by NASDAQ; or (5) if such shares are not listed and
traded on any such securities exchange, not traded on the NASDAQ
National Market and bid and asked prices are not reported by NASDAQ,
then the average of the closing bid and asked prices, as reported by The
Wall Street Journal for the over-the-counter market. If on any
determination date the shares of Class C Common Stock are not quoted by
any such organization, the Current Market Price per shares of Class C
Common Stock shall be the fair market value of such shares on such
determination date as determined by the Board of Directors, without
regard to considerations of the lack of liquidity, applicable regulatory
restrictions or any of the transfer restrictions or other obligations
imposed on such shares set forth in the Investors' Agreement. For
purposes of any computation under this paragraph (h), the number of
shares of Class C Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company.
(7) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least one
percent in such price; provided that any adjustments which by reason of
this paragraph (h)(7) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (h) shall be made to the nearest one
hundredth of a cent or to the nearest hundredth of a share, as the case
may be.
(8) In the event that, at any time as a result of the provisions
of this paragraph (h), the holder of this Warrant upon subsequent
exercise shall become entitled to receive any shares of capital stock or
other securities of the Company other than shares of Class C Common
Stock, the number of such other shares so receivable upon exercise of
this
10
11
Warrant shall thereafter be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions contained herein.
(9) Upon each adjustment of the Exercise Price as a result of
the calculations made in paragraphs (h)(1), (2), (3), (4) or (5) hereof,
the number of shares for which this Warrant is exercisable immediately
prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Exercise Price, that number of shares
of Class C Common Stock obtained by (i) multiplying the number of shares
covered by this Warrant immediately prior to this adjustment of the
number of shares by the Exercise Price in effect immediately prior to
such adjustment of the Exercise Price and (ii) dividing the product so
obtained by the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(10) The Company shall notify all Holders of (x) the fixing of a
record date for the purpose of payment of a cash dividend to holders of
shares of Class C Common Stock, and (y) the record date or effective
date, as the case may be, of any action which requires or might require
an adjustment or readjustment pursuant to this paragraph (h), in each
case as soon as reasonably practicable, but in no event less than 20
days prior to any such record date or effective date.
(11) Not less than 10 nor more than 30 days prior to the record
date or effective date, as the case may be, of any action which requires
or might require an adjustment or readjustment pursuant to this
paragraph (h), the Company shall forthwith file in the custody of its
Secretary or an Assistant Secretary at its principal executive office
and with its stock transfer agent or its warrant agent, if any, an
officers' certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts requiring
such adjustment and the manner of computing such adjustment. Each such
officer's certificate shall be signed by the chairman, president or
chief financial officer of the Company and by the secretary or any
assistant secretary of the Company. Each such officers' certificate
shall be made available at all reasonable times for inspection by the
Holder or any holder of a Warrant executed and delivered pursuant to
paragraph (f) and the Company shall, forthwith after each such
adjustment, mail a copy, by first-class mail, of such certificate to the
Holder.
(12) The Holder shall, at its option, be entitled to receive, in
lieu of the adjustment pursuant to paragraph (h)(5) otherwise required
thereof, on the date of exercise of the Warrants, the evidences of
indebtedness,
11
12
other securities, cash, property or other assets which such Holder would
have been entitled to receive if it had exercised its Warrants for
shares of Class C Common Stock immediately prior to the record date with
respect to such distribution. The Holder may exercise its option under
this paragraph (h)(12) by delivering to the Company a written notice of
such exercise within seven days of its receipt of the certificate of
adjustment required pursuant to paragraph (h)(11) to be delivered by the
Company in connection with such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Class C Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Class C Common Stock for which this Warrant may have been
exercised immediately prior to such consolidation, merger, sale or transfer,
assuming (i) such holder of shares of Class C Common Stock is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("CONSTITUENT PERSON"), or an Affiliate of a constituent Person and (ii) in the
case of a consolidation, merger, sale or transfer which includes an election as
to the consideration to be received by the holders, such holder of shares of
Class C Common Stock failed to exercise its rights of election, as to the kind
or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Class C Common Stock held
immediately prior to such consolidation, merger, sale or transfer by a Person
other than a constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised ("NON-ELECTING SHARE"),
then for the purpose of this paragraph (i) the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer for each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). Adjustments
for events subsequent to the effective date of such a consolidation, merger and
sale of assets shall be as nearly equivalent as may be practicable to the
adjustments provided for
12
13
in this Warrant. In any such event, effective provisions shall be made in the
certificate or articles of incorporation of the resulting or surviving
corporation, in any contract of sale, conveyance, lease or transfer, or
otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The provisions of this paragraph (i) shall similarly apply to
successive consolidations, mergers, sales, leases or transfers.
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the Company
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Condor Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
If to the Holder: To the address of such holder set forth on the
signature page hereof.
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions or to receive any notice of meetings of
shareholders or any notice of any proceedings of the Company except as may be
specifically provided for herein.
(l) REGISTRATION RIGHTS. The Holder of this Warrant is entitled to the
registration rights, if any, which may be available to such Holder of Warrants
and Warrant Shares under the Investors' Agreement.
(m) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND
13
14
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO THE CONFLICT OF LAWS RULES OF SUCH STATE.
(n) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
14
15
IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate
to be signed by its duly authorized officer and to be dated as of April 30,
2000.
CONDOR SYSTEMS, INC.
By: ___________________________________
Name:
Title:
16
Acknowledged and Agreed:
By: _______________________________
Name:
Title:
Address:
17
WARRANT SUBSCRIPTION FORM
To: Condor Systems, Inc.
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Class C Common Stock (the "SHARES"), par value $0.001 per
share, of Condor Systems, Inc. (the "COMPANY") at $_____ per Share (the Exercise
Price currently in effect pursuant to the Warrant) and herewith makes payment of
$___________ (such payment being made in cash or by certified or official bank
or bank cashier's check payable to the order of the Company or by any permitted
combination of such cash or check), all on the terms and conditions specified in
the within Warrant Certificate, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Class C Common Stock (the "SHARES"), par value $0.001 per
share, of Condor Systems, Inc. (the "COMPANY") at $_____ per Share (the Exercise
Price currently in effect pursuant to the Warrant) (provided that in lieu of
payment of $_________, the undersigned will receive a number of Shares reduced
by a number of shares of Class C Common Stock having an aggregate Fair Market
Value (as defined in the Warrant) equal to the aggregate Exercise Price for the
Shares), all on the terms and conditions specified in the within Warrant
Certificate, surrenders this Warrant Certificate and all right, title and
interest therein to the Company and directs that the Shares deliverable upon the
exercise of this Warrant be registered or placed in the name and at the address
specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase
__________ shares of Class C Common Stock (the "SHARES"), par value $0.001 per
share, of Condor Systems, Inc. (the "COMPANY") at $_______ per Share (the
Exercise Price currently in effect pursuant to the Warrant), and herewith makes
payment of $_____ of the aggregate Exercise Price for the Shares in cash,
certified or official bank or bank cashier's check (or a combination of cash and
check), and herewith delivers as payment of $____ of the aggregate Exercise
Price that number of shares of Class C Common Stock having an aggregate Fair
Market Value (as defined in the Warrant) equal to such non-cash portion of the
aggregate Exercise
18
Price for the Shares, all on the terms and conditions specified in the within
Warrant Certificate, surrenders this Warrant Certificate and all right, title
and interest therein to the Company and directs that the Shares deliverable upon
the exercise of this Warrant be registered or placed in the name and at the
address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
__________ shares of Class C Common Stock, par value $0.001 per share, of Condor
Systems, Inc. (the "COMPANY") at $____ per share (the Exercise Price currently
in effect pursuant to the Warrant), and herewith makes payment of $_____ of the
aggregate Exercise Price for the Shares in cash, certified or official bank or
bank cashier's check (or a combination of cash and check), and herewith delivers
as payment of $____ of the aggregate Exercise Price that number of Warrants
which, if exercised, would result in a number of shares of Class C Common Stock
having an aggregate Fair Market Value (as defined in the Warrant) equal to (x)
such non-cash portion of the aggregate Exercise Price for the Shares, plus (y)
the Exercise Price currently in effect of the Warrants delivered herewith, all
on the terms and conditions specified in the within Warrant Certificate,
surrenders this Warrant Certificate and all right, title and interest therein to
the Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified below
and delivered thereto.
18
19
Date: __________ __, ____.
-----------------------------------------
(Signature of Owner)
-----------------------------------------
(Street Address)
-----------------------------------------
(City) (State) (Zip Code)
19
20
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
21
WARRANT ASSIGNMENT FORM
Dated
FOR VALUE RECEIVED, _______________________________ hereby
sells, assigns and transfers unto,
_______________________________________ (the "ASSIGNEE"),
(please type or print in block letters)
______________________________________________________(insert
address) its right to purchase up to _____ shares of Class C
Common Stock represented by this Warrant and does hereby
irrevocably constitute and appoint _______________________
Attorney, to transfer the same on the books of the Company, with
full power of substitution in the premises.
Signature __________________________