Exhibit 4.17
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY, THIS WARRANT
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT (I) AN OPINION OF
COUNSEL SATISFACTORY TO ANCOR COMMUNICATIONS, INCORPORATED THAT SUCH SALE,
TRANSFER OR OTHER DISPOSITION MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR (II) SUCH
REGISTRATION.
ANCOR COMMUNICATIONS, INCORPORATED
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
For value received, INRANGE Technologies Corporation, its successors or
assigns ("Holder"), is entitled to purchase from Ancor Communications,
Incorporated, a Minnesota corporation (the "Company"), up to 750,000 fully paid
and nonassessable shares of the Company's common stock, $.01 par value per
share, or such greater or lesser number of such shares as may be determined by
application of the anti-dilution provisions of this warrant, 250,000 of which
may be purchased at a price of $2.50 per share, 250,000 of which may be
purchased at a price of $5.00 per share and 250,000 of which may be purchased at
the price of $10.00 per share, all subject to adjustments as noted below
(individually or in the aggregate, the "warrant exercise price").
This warrant may be exercised by Holder at any time or from time to
time beginning on March 24, 1999, prior to the close of business on September
24, 2003, provided, however, that this warrant may not be exercised and shall
not be effective unless and until the Technology License Agreement between the
Company and Holder dated September 24, 1998 shall become effective pursuant to
the terms thereof.
This warrant is subject to the following terms and conditions:
1. Exercise. The rights represented by this warrant may be exercised by
the Holder, in whole or in part, by written election, in the form set forth
below, by the surrender of this warrant (properly endorsed if required) at the
principal office of the Company, by payment to it by cash, certified check or
bank draft of the applicable warrant exercise price for the shares to be
purchased and by delivery of a subscription agreement, an investment letter
and/or similar documents acceptable to the Company demonstrating that the sale
of the shares to be purchased is exempt from registration under the Securities
Act of 1933, as amended, and any state securities law. The shares so purchased
shall be deemed to be issued as of the close of business on the date on which
this warrant has been exercised by payment to the Company of the warrant
exercise price. Certificates for the shares of stock so purchased, bearing an
appropriate restrictive legend, shall be delivered to the Holder within 15 days
after the rights represented by this warrant shall have been so exercised, and,
unless this warrant has expired, a new warrant representing the number of
shares, if any, with respect to which this warrant has not been exercised shall
also be delivered to the Holder hereof within such time. No fractional shares
shall be issued upon the exercise of this warrant.
2. Shares. All shares that may be issued upon the exercise of the
rights represented by this warrant shall, upon issuance, be duly authorized and
issued, fully paid and nonassessable shares. During the period within which the
rights represented by this warrant may be exercised, the Company shall 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 its common stock to provide for the exercise of the rights
represented by this warrant.
3. Adjustment. The warrant exercise price shall be subject to
adjustment from time to time as hereinafter provided in this Section 3:
(a) If the Company at any time divides the outstanding shares
of its common stock into a greater number of shares (whether pursuant
to a stock split, stock dividend or otherwise), and conversely, if the
outstanding shares of its common stock are combined into a smaller
number of shares, the warrant exercise price(s) in effect immediately
prior to such division or combination shall be proportionately adjusted
to reflect the reduction or increase in the value of each such common
share.
(b) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of
its assets to another corporation shall be effected in such a way that
holders of the Company's common stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for such
common stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the Holder shall have
the right to purchase and receive upon the basis and upon the terms and
conditions specified in this warrant and 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, other securities or assets as would have been issued
or delivered to the Holder if Holder had exercised this warrant and had
received such shares of common stock immediately prior to such
reorganization, reclassification, consolidation, merger or sale. The
Company shall not effect any such consolidation, merger or sale unless
prior to the consummation thereof the successor corporation (if other
than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument
the obligation to deliver to the Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions,
the Holder may be entitled to purchase.
(c) If the Company takes any other action, or if any other
event occurs, which does not come within the scope of the provisions of
Section 3(a) or 3(b), but which should result in an adjustment in the
applicable warrant exercise price(s) and/or the number of shares
subject to this warrant in order to fairly protect the purchase rights
of the Holder, an appropriate adjustment in such purchase rights shall
be made by the Company.
(d) Upon each adjustment of the warrant exercise price(s), the
Holder shall thereafter be entitled to purchase, at the warrant
exercise price(s) resulting from such adjustment, the sum of the number
of shares obtained by multiplying each warrant exercise price in effect
immediately prior to such adjustment by the number of shares
purchasable pursuant hereto at such exercise price immediately prior to
such adjustment and dividing the product thereof by the corresponding
new warrant exercise price resulting from such adjustment.
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4. No Rights as Shareholder. This warrant shall not entitle the Holder
to any voting rights or other rights as a shareholder of the Company.
5. Transfer. This Warrant may not be sold, transferred or otherwise
disposed of without (i) an opinion of counsel satisfactory to the Company that
such sale, transfer or other disposition may lawfully be made without
registration under the securities act of 1933 and applicable state securities
laws or (ii) such registration. Subject to the foregoing, this warrant and all
rights hereunder are transferable, in whole or in part, at the principal office
of the Company by the holder hereof in person or by duly authorized attorney,
upon surrender of this warrant properly endorsed. The bearer of this warrant,
when endorsed, may be treated by the Company 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.
6. Registration Rights. Holder shall be entitled to the registration
rights set forth on Exhibit A to this warrant.
7. Writing. This warrant may not be changed, waived, discharged or
terminated orally but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
IN WITNESS WHEREOF, the Company has caused this warrant to be executed
and delivered by a duly authorized officer.
Dated: September 24, 1998
ANCOR COMMUNICATIONS, INCORPORATED
By /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
President
Name and Address of Holder:
INRANGE Technologies Corporation
00000 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
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WARRANT EXERCISE
(To be signed only upon exercise of this warrant)
The undersigned, the Holder of the foregoing warrant, hereby
irrevocably elects to exercise the purchase right represented by such warrant
for, and to purchase thereunder, a total of shares of common stock of Ancor
Communications, Incorporated, to which such warrant relates and herewith makes
payment of $ _____________ therefor in cash, certified check or bank draft and
requests that the certificates for such shares be issued in the name of, and be
delivered to ________________________ , whose address is set forth below the
signature of the undersigned. The number of shares to be purchased at each
exercise price is as follows:
Number of Shares Purchase Price
---------------- --------------
________________ $_____________
________________ $_____________
________________ $_____________
Dated:___________________
--------------------------------
Signature
Social Security or other Tax Identification No.
__________________________
If shares are to be issued other than to Holder:
Please print present name and complete address
__________________________
__________________________
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WARRANT ASSIGNMENT
(To be signed only upon transfer of this warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________ the right represented by the foregoing warrant to purchase
the shares of common stock of Ancor Communications, Incorporated and appoints
________________ attorney to transfer such right on the books of Ancor
Communications, Incorporated, with full power of substitution in the premises.
Dated:____________
------------------------------
Signature
Social Security or other Tax Identification No.
______________________________
Please print present name and complete address
______________________________
______________________________
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EXHIBIT A
REGISTRATION RIGHTS DECLARATION
1. Registration Rights.
a. Demand Registration. If at any one time prior to September 24, 2004
the Company shall receive a written request from the registered holder to which
this declaration is attached or the registered holder of Common Stock acquired
upon exercise of such instrument ("Holder") to register shares of Company common
stock ("Registrable Securities") that have been or may be acquired by Holder
pursuant to the exercise or conversion of the instrument to which this
declaration is attached and which are not otherwise eligible for resale without
volume limitation pursuant to Rule 144 under the Securities Act of 1933, as
amended ("Rule 144"), the Company shall promptly prepare and file a registration
statement under the Securities Act covering the number of Registrable Securities
which are the subject of such requests and shall use reasonable efforts to cause
such registration statement to become effective The Company shall cause such
registration statement to remain effective until the earlier to occur of the
following: (i) all shares subject to the registration have been sold in
accordance with the terms thereof, (ii) all of the shares are able to be sold
without volume limitation pursuant to Rule 144 or (iii) the later of six months
following the effective date or September 24, 2004. In the event that the
original instrument to which this declaration is attached is subsequently held
by more than one person or entity, the right under this Section may be exercised
by the person(s) or entity(s) holding in excess of 50% of the original
instrument and any other Holder shall be entitled to notice of and to
participate in the registration.
If, at any time that the Company is required to file a registration
statement hereunder, or any such registration statement is effective, the Board
of Directors of the Company determines, in good faith, that a sale of Common
Stock pursuant to the registration statement would require disclosure of
material information which the Company has a bona fide business purpose for
preserving as confidential, the Company shall not be required to file such
registration statement, or may suspend the effectiveness of an effective
registration statement, during the time such restriction is advisable; provided,
however, that the delay in filing of such registration statement or the
suspension of effectiveness of such registration statement shall not exceed a
period of 120 consecutive days. In the event the effectiveness of a registration
statement is suspended, the time that the Company is required to keep such
registration statement effective shall be extended by the number of days the
effectiveness of such registration statement was suspended.
(b). Piggyback Registration Rights. Each time prior to September 24,
2004 that the Company shall determine to proceed with the actual preparation and
filing of a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), in connection with the proposed offer and sale for money
of any of its securities by it (other than a registration on Form S-8 or a
successor form), the Company will give written notice of its determination to
Holder. Upon the written request of Holder given within 15 days after receipt of
any such notice
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from the Company, the Company will, except as herein provided, cause all shares
of Company common stock that have been or may be acquired by Holder pursuant to
the exercise or conversion of the instrument to which this declaration is
attached and with respect to which Holder has requested registration to be
included in such registration statement, all to the extent requisite to permit
the sale or other disposition by Holder of the shares to be so registered;
provided, however, that nothing herein shall prevent the Company from, at any
time, abandoning or delaying any such registration initiated by it. If any such
registration pertains to an underwritten offering in whole or in part, the
Company may require that the shares requested for inclusion by Holder pursuant
to this section be included in the underwritten offering on the same terms and
conditions as the securities otherwise being sold through the underwriters. In
the event that if in the good faith judgment of the managing underwriter of such
underwritten offering the inclusion of all of the shares originally covered by a
request for registration made by Holder would reduce the amount of securities to
be offered by the Company or interfere with the successful marketing of the
securities to be offered by the Company, the number of shares of stock owned by
Holder and otherwise to be included in the underwritten offering may be reduced;
provided, however, that any such required reduction shall be pro rata among all
persons (other than the Company) who are participating in such underwritten
offering to the extent not inconsistent with registration rights granted by the
Company to others prior to the date hereof. Those shares which are thus excluded
from the underwritten offering shall be withheld from the market by Holder for a
period, not to exceed 180 days, that the managing underwriter reasonably
determines is necessary in order to effect the underwritten offering.
2. Registration Procedures. If and whenever the Company is required by
the provisions of Section 1 to effect the registration of any shares under the
Securities Act, the Company will:
(a) prepare and file with the Commission a registration
statement with respect to such shares, and use its best efforts to
cause such registration statement to become and remain effective for
such period as is specified in paragraph 1(a) hereof with respect to
registrations effected pursuant to paragraph 1(a) and for such period
as may be reasonably necessary to effect the sale of such shares, not
to exceed three months, with respect to registrations effected pursuant
to paragraph 1(b);
(b) prepare and file with the Commission such amendments to
such registration statement and supplements to the prospectus contained
therein as may be necessary to keep such registration statement
effective for such period as is specified in paragraph 1(a) hereof with
respect to registrations effected pursuant to paragraph 1(a) and for
such period as may be reasonably necessary to effect the sale of such
shares, not to exceed three months, with respect to registrations
effected pursuant to paragraph 1(b);
(c) furnish to Holder and to the underwriters of the
securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and
such other documents as Holder and underwriters may reasonably request
in order to facilitate the public offering of such securities;
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(d) prepare and promptly file with the Commission and promptly
notify Holder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to
such securities is required to be delivered under the Securities Act,
any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
3. Expenses. With respect to any registration of shares pursuant to
Section 1, the Company shall bear the following fees, costs and expenses: all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if the Company and/or
selling security holders are required to bear such fees and disbursements), all
internal Company expenses, the premiums and other costs of policies of insurance
against liability arising out of the public offering, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel and accountants for
Holder, underwriting discounts and commissions and transfer taxes for Holder and
any other expenses incurred by Holder not expressly included above shall be
borne by Holder.
4. Indemnification. In the event that any shares owned by Holder are
included in a registration statement under Section 1:
(a) The Company will indemnify and hold harmless Holder and
any underwriter (as defined in the Securities Act) for Holder from and
against any and all loss, damage, liability, cost and expense to which
Holder or any such underwriter may become subject under the Securities
Act or otherwise, insofar as such losses, damages, liabilities, costs
or expenses are caused by any untrue statement or alleged untrue
statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, damage, liability, cost or expense arises
out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information
furnished by Holder or such underwriter.
(b) Holder will indemnify and hold harmless the Company and
any underwriter from and against any and all loss, damage, liability,
cost or expense to which the Company or any underwriter may become
subject under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any
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untrue or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in strict conformity
with information furnished by Holder.
(c) Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph (a) or (b) of this section of notice of the
commencement of any action involving the subject matter of the
foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of said paragraph (a) or (b), promptly notify the
indemnifying party of the commencement thereof; but the omission to so
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than hereunder. In
case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, if the
defendants in any action include both the indemnified party and the
indemnifying party and there is a conflict of interest which would
prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have the
right to select separate counsel to participate in the defense of such
action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party pursuant to the provisions of
paragraph (a) or (b) for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (i) the
indemnified party shall have employed counsel in accordance with the
proviso of the preceding sentence, (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the
notice of the commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party.
5. Rule 144. The Company covenants and agrees to use reasonable efforts
to file such reports and/or make available such information as is required in
order for Rule 144 to be available to Holder at any time that Holder would
otherwise be eligible to sell pursuant to Rule 144.
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