AvantGo Inc. Contracts
Sample Business Contracts
Warrant to Purchase Stock - AvantGo Inc. and Yahoo! Inc.
NEITHER THE WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO
SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE
EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii)
AN OPINION OF COUNSEL FOR THE PURCHASER, WHICH COUNSEL SHALL BE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED OR (iii)
RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE
EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.
Date of Issuance: February ___, 2000 ("Date of Issuance") Warrant No.: W-__
WARRANT TO PURCHASE UP TO 117,558
SHARES OF PREFERRED STOCK OF AVANTGO, INC.
------------------------------------------
THIS CERTIFIES THAT Yahoo! Inc., a Delaware corporation ("Purchaser"), is
entitled to purchase under this Warrant up to one hundred seventeen thousand
five hundred fifty-eight (117,558) shares of Preferred Stock (of the series
determined according to the provisions of Section 1 hereof and as adjusted
pursuant to the provisions hereof, the "Shares"), of AvantGo, Inc., a Delaware
corporation (the "Company"), at a per share exercise price as set forth in
Section 1 herein, subject to the provisions and upon the terms and conditions
hereinafter set forth. This Warrant is issued pursuant to the Content and
Services Agreement, dated as of February ___, 2000, by and between the Company
and Purchaser (the "Content Agreement").
1. Vesting and Term.
----------------
1.1 First Shares.
------------
(a) Vesting Date. This Warrant shall become exercisable with
------------
respect to fifty-eight thousand seven hundred seventy-nine (58,779) of the
Shares (the "First Shares") on the earlier of (i) the date ninety (90) calendar
days following the Date of Issuance (the "Preferred Series Determination Date"),
(ii) the closing date of the Company's sale of its yet to be designated Series D
Preferred Stock (the "Series D Preferred Stock"), in the Company's Series D
Preferred Stock financing which yields minimum aggregate gross proceeds to the
Company of five hundred thousand ($500,000) dollars (the "Series D Financing
Round") or (iii) the effective date of termination of the Content Agreement
because of Company's breach pursuant to Section 10.2(d) of the Content Agreement
(either (i), (ii) or (iii) shall be referred to as the "First Shares Vesting
Date").
(b) Preferred Series of Shares. The Shares subject to this
--------------------------
Warrant shall be shares of the Company's yet to be designated Series D Preferred
Stock, provided, however, that if the closing of the Series D Financing Round
-------- -------
has not occurred on or prior to the Preferred Series Determination Date, then
the Shares subject to this Warrant shall be shares of
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as ****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commision.
1
<PAGE>
the Company's Series C Preferred Stock, par value $.0001 per share (the "Series
C Preferred Stock"). For the purposes of this Warrant, the series of Preferred
Stock of the Shares to be issued under this Warrant shall be referred to as the
"Applicable Preferred Stock" and shall be deemed to refer to either the Series D
Preferred Stock or the Series C Preferred Stock, as may be applicable pursuant
to the terms hereof.
(c) Termination Date. This Warrant shall remain exercisable with
----------------
respect to the First Shares until 5:00 p.m. California time on the earlier of
(i) the third annual anniversary of the First Shares Vesting Date, (ii) five
business days prior to the effective date of a Change of Control (as defined
herein) of the Company; provided, however, in the event of a simultaneous
-------- -------
execution and closing of a definitive agreement with respect to a Change of
Control, this Warrant shall not terminate prior to the vesting of all Shares,
(iii) the closing date of the Company's initial public offering of its shares of
common stock which yields minimum aggregate gross proceeds to the Company of ten
million ($10,000,000) dollars (the "IPO") or (iv) the effective date of
termination of the Content Agreement because of Purchaser's breach pursuant to
Section 10.2(d) of the Content Agreement. For the purposes of this Warrant, a
"Change of Control" shall be defined as (i) a transaction or series of
transactions pursuant to which any person or group (as such term is defined
under the Securities Exchange Act of 1934, as amended, a "Third Party"),
acquires (or would acquire upon completion of such transaction or series of
transactions) more than 50% of the equity securities or voting power of the
Company, pursuant to a tender offer or exchange offer or otherwise, or (ii) a
merger, consolidation, share exchange or other business combination involving
the Company pursuant to which any Third Party acquires ownership (or would
acquire ownership upon consummation of such merger, consolidation, share
exchange or other business combination) of more than 50% of the outstanding
equity securities or voting power of the Company or of the entity surviving such
merger or business combination or resulting from such consolidation or (iii) the
sale of all or substantially all of the assets of the Company.
(d) Exercise Price. The per share exercise price for the Shares
--------------
subject to this Warrant shall be equal to the per share purchase price of one
share of the Company's Series D Preferred Stock in the Series D Financing Round;
provided, however, if the Shares subject to this Warrant shall be shares of the
-------- -------
Company's Series C Preferred Stock pursuant to the terms of Section 1.1(b)
hereof, the per share exercise price for such Shares subject to this Warrant
shall be $5.91 (the "Exercise Price"). The Exercise Price shall be subject to
adjustment pursuant to the provisions hereof.
1.2 Second Shares.
-------------
(a) Vesting Date. This Warrant shall become exercisable with
------------
respect to all unvested Shares (including the First Shares, if the First Shares
have not vested pursuant to the terms of Section 1.1(a) hereof) subject to the
Warrant (the "Second Shares"), on the earlier of (i) the first annual
anniversary of the Date of Issuance, (ii) the effective date of the Company's
Registration Statement corresponding to the IPO, (iii) the Company's execution
of a definitive agreement which would result in a Change of Control; provided,
--------
however, that in the event of the
-------
2
<PAGE>
Company's execution of a definitive agreement which (x) would result in a Change
of Control and (y) provides for a simultaneous execution and closing of the
transactions contemplated thereby, this Warrant shall be deemed exercisable with
respect to the Second Shares immediately prior to the execution of any such
agreement or (iv) the effective date of termination of the Content Agreement
because of Company's breach pursuant to Section 10.2(d) of the Content Agreement
(either (i), (ii), (iii) or (iv) shall be referred to as the "Second Shares
Vesting Date").
(b) Termination Date. This Warrant shall remain exercisable with
----------------
respect to the Second Shares until 5:00 p.m. California time on the earlier of
(i) the third annual anniversary of the Second Shares Vesting Date, (ii) five
business days prior to the effective date of a Change of Control of the Company;
provided, however, in the event of a simultaneous execution and closing of a
-------- -------
definitive agreement with respect to a Change of Control, this Warrant shall not
terminate prior to the vesting of all Shares, (iii) the closing date of the
Company's IPO or (iv) the effective date of termination of the Content Agreement
because of Purchaser's breach pursuant to Section 10.2(d) of the Content
Agreement.
2. Conversion.
----------
2.1 Method of Exercise; Payment; Issuance of New Warrant. This
----------------------------------------------------
Warrant may be exercised by the Purchaser hereof, in whole or in part and from
time to time, by the surrender of this Warrant (with a notice of exercise in the
form attached as Exhibit A and the investment representation certificate in the
---------
form attached as Exhibit B duly executed) at the principal office of the Company
---------
and by the payment to the Company by check or wire transfer, of an amount equal
to the then current Exercise Price per share multiplied by the number of Shares
then being purchased (the "Aggregate Exercise Price"). The person or persons in
whose name(s) any certificate(s) representing shares of Applicable Preferred
Stock shall be issuable upon exercise of this Warrant shall be deemed to have
become the Purchaser(s) of record of, and shall be treated for all purposes as
the record Purchaser(s) of the shares represented thereby (and such shares shall
be deemed to have been issued) immediately prior to the close of business on the
date or dates upon which this Warrant is exercised. In the event of any
exercise of this Warrant, certificates for the Shares so purchased shall be
delivered to the Purchaser hereof as soon as possible and in any event within
thirty (30) days of receipt of such notice by the Company and, unless this
Warrant has been fully exercised or expired, a new Warrant representing the
portion of the Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Purchaser hereof as soon as
possible and in any event within such thirty-day period.
3
<PAGE>
2.2 Right to Convert Warrant into Stock; Net Issuance. In addition
-------------------------------------------------
to and without limiting the rights of the Purchaser under the terms of this
Warrant, the Purchaser may elect to convert this Warrant or any portion thereof
(the "Conversion Right"), but only to the extent that the Purchaser then has a
right to exercise this Warrant, into shares of Applicable Preferred Stock, the
aggregate value of which shares shall be equal to the value of this Warrant or
the portion thereof being converted. The Conversion Right may be exercised by
the Purchaser by surrender of this Warrant at the principal office of the
Company together with notice of the Purchaser's intention to exercise the
Conversion Right, in which event the Company shall issue to the Purchaser a
number of shares of the Company's Applicable Preferred Stock computed using the
following formula:
X= Y(A-B)
------
A
Where:
X The number of shares of Applicable Preferred Stock to be issued
to the Purchaser.
Y The number of shares of Applicable Preferred Stock representing
the portion of this Warrant that is being converted.
A The fair market value of one share of the Company's Applicable
Preferred Stock.
B The Exercise Price (as adjusted to the date of such
calculations).
For purposes of this Section 2.2, the "fair market value" per share of the
Company's Applicable Preferred Stock shall mean, the average daily Market Price
(as defined below) during the period of the most recent 20 days, ending on the
last business day before the effective date of exercise of the Conversion Right,
on which the national securities exchanges were open for trading, except that if
no class of the Company's capital stock is then listed or admitted to trading on
any national securities exchange or quoted in the over-counter market, the fair
market value shall be the Market Price on the last business day before the
effective date of exercise of the Conversion Right. If the Common Stock (as
defined herein) is traded on a national securities exchange or admitted to
unlisted trading privileges on such an exchange, or is listed on the National
Market System (the "National Market System") of the National Association of
Securities Dealers Automated Quotations System (the "NASDAQ"), the Market Price
as of a specified day shall be the last reported sale price of the Common Stock
on such exchange or on the National Market System on such date or if no such
sale is made on such day, the mean of the closing bid and asked prices for such
day on such exchange or on the National Market System. If the Common Stock is
not so listed or admitted to unlisted trading privileges, the Market Price as of
a specified day shall be the mean of the last bid and asked prices reported on
such date (x) by the NASDAQ or (y) if reports are unavailable under clause (x)
above by the National Quotation Bureau Incorporated. If the Common Stock is not
so listed or admitted to unlisted trading privileges and
4
<PAGE>
bid and ask prices are not reported, the Market Price as of a specified day
shall be determined in good faith by written resolution of the Board of
Directors of the Company.
2.3 Automatic Conversion. In the event of termination of this
--------------------
Warrant pursuant to Section 1 above (other than pursuant to Sections 1.1(c)(iv)
or 1.2(b)(iv) hereof), to the extent that this Warrant is then exercisable and
such conversion would result in the issuance of shares to the Purchaser, this
Warrant shall be deemed automatically converted under Section 2.2 above
immediately prior to the time at which it would otherwise expire.
3. Securities Fully Paid; Reservation of Shares; Capitalization
------------------------------------------------------------
Representations. All Shares that may be issued upon the exercise of the rights
---------------
represented by this Warrant, upon issuance, will be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by the
Warrant may be exercised, the Company will at all times have authorized and
reserved for the purpose of issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Applicable
Preferred Stock and such number of shares of Common Stock into which such shares
of Applicable Preferred Stock may be converted to provide for the exercise of
the right represented by this Warrant. The authorized capital stock of the
Company consists of (a) 11,834,156 shares of preferred stock ("Preferred
Stock"), par value $.0001 per share, of which 4,434,156 shares have been
designated Series A Preferred Stock, (all of which are validly issued and
outstanding as of the Date of Issuance), 3,400,000 shares have been designated
Series B Preferred Stock (3,301,886 shares of which are validly issued and
outstanding as of the Date of Issuance) and 4,000,000 shares have been
designated Series C Preferred Stock (3,736,040 shares of which are validly
issued and outstanding as of the Date of Issuance) and (b) 30,000,000 shares of
common stock, par value $.01 per share ("Common Stock"), of which the combined
total of all shares validly issued and outstanding, and those reserved for
issuance upon exercise or conversion of all outstanding options and warrants was
23,511,682 shares as of November 19, 1999. As of the Date of Issuance (if the
Shares are to be Series C Preferred Stock pursuant to the terms hereof), and as
of the First Shares Vesting Date (if the Shares are to be Series D Preferred
Stock pursuant to the terms hereof), each Share of Preferred Stock may be
converted into one (1) share of Common Stock.
4. Adjustment of Exercise Price and Number of Shares. The number and
-------------------------------------------------
kind of securities purchasable upon the exercise of the Warrant and the Exercise
Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:
4.1 Reclassification or Merger. In case of any reclassification,
--------------------------
change or conversion of securities in the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
or stock dividend as described in Section 4.3 below), or in case of any merger
of the Company with or into another corporation (other than a merger with
another corporation in which the Company is a continuing corporation and which
does not result in any reclassification or change of outstanding securities
issuable upon exercise of this Warrant), or in case of any sale of all or
substantially all of the assets of the Company, unless this Warrant shall have
been exercised or terminated in accordance with its terms, the Purchaser of this
Warrant
5
<PAGE>
shall have the right to exercise this Warrant and upon such exercise to receive,
in lieu of each Share theretofore issuable upon exercise of this Warrant, the
kind and amount of consideration, including but not limited to shares of stock,
other securities, money and property receivable upon such reclassification,
change, conversion or merger by a holder of one share of Applicable Preferred
Stock. The provisions of this subparagraph shall similarly apply to successive
reclassifications, changes, conversions, mergers or transfers.
4.2 Subdivisions or Combination of Shares. If at any time while this
-------------------------------------
Warrant remains outstanding and unexpired the Company shall subdivide or combine
its Applicable Preferred Stock, the Exercise Price and the number of Shares
issuable upon exercise hereof shall be proportionately adjusted.
4.3 Stock Dividends. If at any time while this Warrant is
---------------
outstanding and unexpired the Company shall pay a dividend payable in shares of
Applicable Preferred Stock (except any distribution specifically provided for in
the foregoing subparagraphs 4.1 and 4.2), then the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled to
receive such dividend or distribution, to that price determined by multiplying
the Exercise Price in effect immediately prior to such date of determination by
a fraction (a) the numerator of which shall be the total number of shares of
Common Stock (assuming conversion of all shares of the Company's capital stock
convertible into Common Stock) outstanding immediately prior to such dividend or
distribution, and (b) the denominator of which shall be the total number of
shares of Common Stock (assuming conversion of all shares of the Company's
capital stock convertible into Common Stock) outstanding immediately after such
dividend or distribution and the number of Shares subject to this Warrant shall
be proportionately adjusted.
4.4 Notice of Adjustments. Whenever the Exercise Price or the number
---------------------
of Shares subject to this Warrant shall be adjusted pursuant to the provisions
hereof, the Company shall within thirty (30) days of such adjustment deliver a
certificate signed by its chief financial officer to Purchaser setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the number
of Shares subject to this Warrant and the Exercise Price therefor, as
applicable, after giving effect to such adjustment.
5. Compliance with Securities Laws.
-------------------------------
5.1 Accredited Investor. This Warrant is conditioned upon, and by
-------------------
its acceptance hereof Purchaser hereby confirms, that Purchaser is an
"accredited investor" as that term is defined under Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"). Purchaser further
represents and warrants to the Company as follows:
(a) This Warrant and the Shares issuable upon exercise thereof
are being acquired for its own account, for investment and not with a view to,
or for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended (the "Act").
6
<PAGE>
(b) Purchaser understands that the Warrant and the Shares have
not been registered under the Act by reason of their issuance in a
transaction exempt from the registration and prospectus delivery
requirements of the Act pursuant to Section 4(2) thereof, and that they
must be held by Purchaser indefinitely, and that Purchaser must therefore
bear the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the Act or is exempted from such
registration. Purchaser further understands that the Shares have not been
qualified under the California Securities Law of 1968 (the "California
Law") by reason of their issuance in a transaction exempt from the
qualification requirements of the California Law pursuant to Section
25102(f) thereof, which exemption depends upon, among other things, the
bona fide nature of Purchaser's investment intent expressed above.
5.2 Legend. Upon issuance, the Shares shall be imprinted with a
------
legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
together with any legend required under applicable State securities laws.
5.3 Compliance with Securities Laws on Transfer. This Warrant and
-------------------------------------------
the Shares issuable upon exercise of this Warrant may not be transferred or
assigned in whole or in part without compliance with applicable federal and
state securities laws by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company).
6. Fractional Shares. No fractional shares of Applicable Preferred Stock
-----------------
will be issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor upon the basis
of the Exercise Price then in effect.
7. Registration Rights. In the event that the Shares to be issued
-------------------
pursuant to this Warrant shall be Series D Preferred Stock the Shares subject to
this Warrant shall be deemed to be "Registrable Securities" as defined herein
the Investors' Rights Agreement by and among the Company and the certain
purchasers of the Company's Series D Preferred Stock named therein (the
"Investors Rights Agreement"), and Purchaser shall be entitled to receive
registration rights and certain other rights contained in the Investors' Rights
Agreement on a pari passu basis with the other holders of Registrable Securities
as set forth in such agreement subject to Purchaser's agreement to be bound by
certain related indemnity and other obligations on the part of holders
7
<PAGE>
of Registrable Securities, and such other terms and conditions as set forth in
such Investors' Rights Agreement applicable to holders of Registrable Securities
and related to registration rights (including without limitation the applicable
"Market Stand-Off" provision thereof); provided, however, in the event that the
-------- -------
Shares to be issued pursuant to this Warrant shall be shares of Series C
Preferred Stock, the Company shall use all reasonable efforts to obtain for
Purchaser registration rights and other rights set forth in the then existing
Investors' Rights Agreement with respect to the Shares on a pari passu basis
with the other holders of Series C Preferred Stock as set forth in the
Investors' Rights Agreement subject to Purchaser's agreement to be bound by
certain related indemnity and other obligations on the part of holders of
Registrable Securities, and such other terms and conditions as set forth in such
Investors' Rights Agreement applicable to holders of Registrable Securities and
related to registration rights (including without limitation the applicable
"Market Stand-Off" provision thereof); provided, further, in the event that,
-------- -------
after satisfaction of the Company's obligation set forth in the immediately
preceding clause, the Company is unable to obtain for Purchaser the registration
rights and other rights mentioned above with respect to the Shares of Series C
Preferred Stock which may be issued hereunder, the Company shall grant to
Purchaser registration rights and other rights to the fullest extent permitted
under the then existing Investors' Rights Agreement with respect to such Shares
of Series C Preferred Stock subject to Purchaser's agreement to be bound by
certain related indemnity and other obligations on the part of holders of
Registrable Securities, and such other terms and conditions as set forth in such
Investors' Rights Agreement applicable to holders of Registrable Securities and
related to registration rights (including without limitation the applicable
"Market Stand-Off" provision thereof).
8. Modification and Waiver. This Warrant and any provision hereof may be
-----------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9. Notices.
-------
9.1 Notice of Certain Events. The Company shall provide the
------------------------
Purchaser with at least fifteen (15) days notice (or such greater amount of
notice as Delaware law requires to be given to stockholders having the right to
vote at a meeting on any Sale Event, as defined herein) prior to (i) a merger of
the Company with or into, the consolidation of the Company with, or the sale by
the Company of all or substantially all of its assets to, another person or
entity (other than such a transaction wherein the stockholders of the Company
prior to such transaction retain or obtain a majority of the voting capital
stock of the surviving, resulting or purchasing entity)(a "Sale Event"), (ii)
any liquidation, dissolution or winding up of the Company or (iii) the record
date for any cash dividend declared on the Company's Common Stock or Preferred
Stock or (iv) a firm commitment underwritten public offering pursuant to a
registration statement on Form S-1 under the Securities Act (each, a "Notice
Event"). If the notice is provided pursuant to subsection (i) or (ii) of the
previous sentence, the notice will indicate the expected date of the Notice
Event.
9.2 Notice Procedure. Any notice required or permitted pursuant to
----------------
this Warrant shall be in writing and shall be deemed sufficient when either (a)
delivered personally,
8
<PAGE>
(b) sent by e-mail or fax with confirmation of receipt or (c) deposited in the
U.S. mail, as certified or registered mail, with postage prepaid, addressed as
follows:
If to the Purchaser:
Yahoo! Inc.
3420 Central Expressway
Santa Clara, California 95051
Attention: Senior Vice President Corporate Development
e-mail: [******]
fax: [******]
with a copy to:
Yahoo! Inc.
3420 Central Expressway
Santa Clara, California 95051
Attention: General Counsel
e-mail: [******]
Fax: [******]
If to the Company:
AvantGo, Inc.
1700 South Amphlett Boulevard
Suite 300
San Mateo, California 94402
Attention: Mark Cochran
e-mail: [******]
Fax: [******]
Each of the foregoing parties shall be entitled to specify a different
address by giving five (5) days advance written notice as aforesaid to the other
parties. All such notices and communications shall be deemed to have been
received (i) in the case of personal delivery or delivery be e-mail or fax, on
the date of such delivery (provided there is confirmation of such delivery) and
(ii) in the case of mailing, on the third business day following the date of
such mailing.
10. Lost Warrants or Stock Certificates. Upon receipt of evidence
-----------------------------------
reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant or any stock certificate and, in the case of any such
loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory
to the Company, or in the case of any such mutilation upon surrender and
cancellation of such Warrant or stock certificate, the Company will make and
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
9
<PAGE>
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
11. Non-Disclosure. The terms and conditions of this Warrant shall be
--------------
considered confidential and shall not be disclosed to any third parties except
to Company's or Purchaser's accountants, attorneys, or except as otherwise
required by law. Neither Company nor Purchaser shall make any public
announcement regarding the existence of this Warrant without the other party's
prior written approval and consent. If Company or Purchaser desires to make a
public announcement regarding the existence of this Warrant, it shall provide
the other with a minimum of three (3) business days notice of the intended
disclosure. If this Agreement or any of its terms must be disclosed by Company
under any law, rule or regulation, Company shall (i) give written notice of the
intended disclosure to Purchaser at least five (5) days in advance of the date
of disclosure, (ii) redact portions of this Agreement to the fullest extent
permitted under any applicable laws, rules and regulations, and (iii) submit a
request, to be agreed upon by Purchaser, that such portions and other provisions
of this Agreement requested by Purchaser receive confidential treatment under
the laws, rules and regulations of the body or tribunal to which disclosure is
being made or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
12. No Impairment. The Company will not, through any reorganization,
-------------
recapitalization, transfer of assets, consolidation, merger, dissolution,
issuance or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Warrant and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the holder of this Warrant against impairment.
13. Governing Law. This Warrant shall be construed and enforced in
-------------
accordance with, and the rights of the parties shall be governed by, the laws of
the State of California, without regard to conflict of laws provisions thereof.
14. Transfer and Exchange of Warrant. This Warrant is not transferable or
--------------------------------
exchangeable without the consent of the Company, which shall not be unreasonably
withheld or delayed.
15. No Rights as a Stockholder. Until exercise for the Shares issuable
--------------------------
hereunder, this Warrant does not entitle the Purchaser to any of the rights of a
stockholder of the Company. Without limitation of any rights conferred on
Purchaser hereunder, nothing contained in this Warrant should be construed to
confer upon the Purchaser of this Warrant, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value or change of
stock to no par value, consolidation, merger, conveyance or otherwise) or to
receive dividends (other than with respect to adjustments to the Exercise Price
or otherwise as set forth herein) or subscription rights until the Warrant shall
have been exercised
10
<PAGE>
and the shares purchasable upon the exercise of this Warrant shall have become
deliverable, as provided herein.
IN WITNESS WHEREOF, this Warrant has been executed as of the Date of
Issuance.
AvantGo, Inc.
By
-----------------------------------------
Name
---------------------------------------
Title
--------------------------------------
11