Exhibit 4.3
THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR APPLICABLE BLUE SKY LAWS,
AND ARE SUBJECT TO CERTAIN INVESTMENT REPRESENTATIONS. THESE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE ACT AND APPLICABLE
BLUE SKY LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
BIGBAND NETWORKS,
INC.
WARRANT TO
PURCHASE
CLASS B NONVOTING COMMON
STOCK
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Warrant No.
1
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June 29, 2004
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THIS CERTIFIES THAT, ADC
TELECOMMUNICATIONS, INC., a Minnesota corporation, or its
registered assigns (the “Holder”), having a mailing
address at 13625 Technology Drive, Eden Prairie, MN 55344, is
entitled to subscribe for and purchase from BIGBAND NETWORKS, INC.,
a Delaware corporation (the “Company”), at any time
during that period commencing on the date hereof (the “Date
of Grant”), and ending at 4:00 p.m., California time, on the
Exercise Date (as hereinafter defined), One Million Six Hundred
Three Thousand and Two Hundred Ninety-eight (1,603,298) fully
paid and nonassessable shares (the “Warrant Shares”) of
the Company’s Class B nonvoting common stock, par value
$0.001 per share (the “Class B Common Stock”), at the
purchase price of $1.0915 (the “Exercise Price”). The
number of Warrant Shares to be received upon the exercise of this
Warrant to Purchase Class B Nonvoting Common Stock (the
“Warrant”), and the per share Exercise Price to be paid
for such Warrant Shares, may be adjusted from time to time as
hereinafter set forth.
This Warrant has been issued in
connection with the issuance of Advances pursuant to the terms of
that certain Credit and Security Agreement, dated as of
June 29, 2004, between the Company and ADC Telecommunications,
Inc. (the “Credit Agreement”). All capitalized terms
used herein and not otherwise defined shall have the meanings given
to such terms in the Credit Agreement.
This Warrant is subject to the
following provisions, terms and conditions:
1. Method of Exercise . At
the option of the Holder, the Holder may exercise the Warrant by
using either of the following methods:
(a) Payment of Exercise Price in
Cash . The Holder may exercise its right to purchase the
Warrant Shares or any permitted portion thereof, by surrendering
this Warrant with the form of notice attached hereto duly executed
by such Holder, to the Company at its principal office, accompanied
by payment, in cash, by wire transfer to an account of the Company,
or by check payable to the order of the Company, of the aggregate
Exercise Price payable in respect of the shares of the Class B
Common Stock being purchased.
(b) Redemption By Net Exercise
Price . The Holder may elect to receive, without the payment by
the Holder of any additional consideration, the Warrant Shares or
any portion hereof by the surrender of this Warrant or such portion
to the Company. Thereupon, the Company shall issue to the Holder
such number of fully paid and nonassessable Warrant Shares as is
computed using the following formula:
X = Y (A-B)
A
where X = the
number of shares to be issued to the Holder pursuant to this
Section l(b).
Y = the number of shares covered by
this Warrant in respect of which the net issue election is made
pursuant to this Section l(b).
A = the fair market value
(“FMV”) of one share of Class B Common Stock, as
determined below, as at the time the net issue election is made
pursuant to this Section l(b).
B = the Exercise Price in effect
under this Warrant at the time the net issue election is made
pursuant to this Section l(b).
For the purposes of this Section
l(b), FMV shall be determined at the time of exercise and shall
mean (a) the mean between the reported high and low sale
prices of the Class B Common Stock over the five trading days
immediately preceding the determination date if the Class B Common
Stock is listed, admitted to unlisted trading privileges or
reported on any foreign or national securities exchange or on the
Nasdaq National Market or an equivalent foreign market on which
sale prices are reported; or (b) if the Class B Common Stock
is not so listed, admitted to unlisted trading privileges or
reported, the closing bid price over the five trading days
immediately preceding the determination date as reported by the
Nasdaq SmallCap Market, OTC Bulletin Board or the National
Quotation Bureau, Inc. or other comparable service; or (c) if
the Class B Common Stock is not so listed or reported, a fair value
as determined in good faith by the Board of Directors of the
Company. Notwithstanding the foregoing, no shares of Class B Common
Stock shall be issuable upon exercise of this Warrant in accordance
with the foregoing in the event that the FMV is less than the
Exercise Price.
(c) Partial Exercise under
Sections l(a) and l(b) . If any amount less than the remaining
Warrant Shares is purchased or redeemed pursuant to Section l(a)(l)
or Section l(a)(2), respectively, the Company shall, upon such
exercise, execute and deliver to the Holder hereof a new Warrant
(dated the date hereof) evidencing the number of Warrant Shares
remaining and not yet so purchased or redeemed. As soon as
practicable after the exercise of this Warrant and payment of the
requisite Exercise Price or redemption by net exercise price, the
Company will cause to be issued in the name of and delivered to the
Holder hereof, or as such Holder may direct, a certificate or
certificates representing the number of Warrant Shares purchased
upon exercise.
2. Term . The purchase right
represented by this Warrant is exercisable, in whole or in part, at
any time and from time to time from the Date of Grant through the
earlier of (i) five (5) years after the Date of Grant or
(ii) three (3) years after the closing of the
Company’s initial public offering of its common stock
(“IPO”) effected pursuant to a Registration Statement
on Form S-l (or its successor) filed under the Securities Act of
1933, as amended (the “Act”) (such date being referred
to as the “Exercise Date”). Upon request of the
Company, the holder of this Warrant agrees that in the event of a
consolidation, merger or reorganization of the Corporation with or
into, or a sale of all or substantially all of the
Corporation’s assets, or substantially all of the
Corporation’s issued and outstanding share capital, to any
other corporation, or any other entity or person, other than a sale
of all or substantially all of the Corporation’s assets to or
a merger with a wholly-owned subsidiary of the Corporation, that
either (y) the holder of this Warrant will exercise the
purchase right under this Warrant (including, without limitation,
by way of net issuance as provided in Section l(b) and such
exercise will be deemed effective upon completion of such sale or
merger or (z) if the holder of this Warrant elects not to
exercise the Warrant, this Warrant will expire upon completion of
such sale or merger. The Company shall provide the Holder of this
Warrant not less than 20 days’ prior written notice of the
Company’s request that the holder exercise its purchase right
hereunder in accordance with the provisions of
Section 8.
3. Legend . The Company may
require that any certificate or certificates representing ownership
in the Warrant Shares issued hereunder contain on the face thereof
a legend substantially as follows:
“THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER EITHER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR
APPLICABLE BLUE SKY LAWS, AND ARE SUBJECT TO CERTAIN INVESTMENT
REPRESENTATIONS. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE
OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER
THE ACT AND SUCH APPLICABLE BLUE SKY LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.”
“THE VOTING, SALE, PLEDGE,
HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
STOCKHOLDERS AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE COMPANY
AND CERTAIN HOLDERS OF SHARES OF THE COMPANY’S CAPITAL STOCK.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO
THE SECRETARY OF THE COMPANY.”
4. Stock Fully Paid: Reservation
of the Warrant Shares . The Company covenants and agrees that
this Warrant has been authorized by all necessary corporate action,
that all of the Warrant Shares that may be issued upon
the
