exv10w88



 




Exhibit 10.88

THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR
RULE 701 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
COMPANY STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.



THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY AN AFFILIATE OF THE
COMPANY. NO SALE OR DISPOSITION OF THESE SHARES MAY BE EFFECTED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION RELATED THERETO OR IN COMPLIANCE WITH
RULE 144 OR ITS SUCCESSOR OR PURSUANT TO AN OPINION OF COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.




	 	 	 
	Warrant No.                    

	 	Number of Shares:
	 

	 	                   (subject to adjustment)







Date of Issuance: October 18, 2004



INSIGNIA SOLUTIONS PLC




Warrant to Purchase American Depositary Shares




     Insignia Solutions, plc (the “Company”), for value received equal to
$0.0001 per share of Warrant Stock, hereby certifies that                    or its registered assigns (the “Registered Holder”), is entitled, subject to
the terms set forth below, to have issued to it by the Company, at any time
after the six month anniversary of the date hereof and on or before the
Expiration Date (as defined in Section 6 below),                    (                   )
American depositary shares (“ADSs”) (as adjusted from time to time pursuant to
the provisions of this Warrant), with each ADS representing one ordinary share,
20 pence per share nominal value of the Company, at a per share Exercise Price
equal to $1.06 per share (subject to adjustment as hereinafter provided),
provided however that the Exercise Price shall be at least the U.S. Dollar
equivalent of 20 pence per ADS calculated by reference to the average currency
conversion rate quoted by the Bank of America in London as the price for Pounds
Sterling purchased with U.S. Dollars prevailing at the date the Warrant is
exercised. Notwithstanding any provision hereof to the contrary (and in
particular any provision relating to the adjustment of the Exercise Price), the
Company shall not be required or permitted to issue any ordinary shares under
this Warrant (or have its transfer agent or Depositary issue any ADSs), if such
issuance would breach the Company’s obligations under the United Kingdom
Companies Act 1985. The shares to be issued upon exercise of this Warrant and
the exercise price per share, as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the “Warrant Stock”
and the “Exercise Price,” respectively.



 









 





     This Warrant is issued pursuant to that certain American Depositary Shares
Purchase Agreement dated approximately concurrently herewith among the Company
and certain individuals and entities listed on Exhibit A thereof (the “Purchase
Agreement”). Any capitalized terms used herein, but not defined herein, shall
carry those definitions ascribed to them in the Purchase Agreement.



     1.      Fully Vested Shares on Six Month Anniversary. The shares of Warrant
Stock will become fully vested and exercisable as of the date that is six
months after the date of this Warrant.



     2.      Exercise.



          (a)      Method of Exercise. This Warrant may be exercised by the Registered
Holder, in whole or in part, by surrendering this Warrant, with the exercise
form appended hereto as Exhibit A duly executed by such Registered Holder or by
such Registered Holder’s duly authorized attorney, at the principal office of
the Company, or at such other office or agency as the Company may designate in
writing prior to the date of such exercise, accompanied by payment in full of
the Exercise Price payable in respect of the number of shares of Warrant Stock
issued upon such exercise. The Exercise Price may be paid by cash, check, wire
transfer or by the surrender of promissory notes or other instruments
representing indebtedness of the Company to the Registered Holder.



          (b)      Effective Time of Exercise. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
day on which this Warrant shall have been surrendered to the Company as
provided in Section 2(a) above. At such time, the person or persons in whose
name or names any certificates for Warrant Stock shall be issuable upon such
exercise as provided in Section 2(c) below shall be deemed to have become the
holder or holders of record of the Warrant Stock represented by such
certificates.



          (c)      Delivery to Holder. As soon as practicable after the exercise of this
Warrant in whole or in part, and in any event within 10 days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered
to, the Registered Holder, or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct:



                    (i)      an American Depositary Receipt representing such number of shares of
Warrant Stock to which such Registered Holder shall be entitled, and



                    (ii)      in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face or
faces thereof for the number of shares of Warrant Stock equal (giving effect to
any adjustment therein) to the number of such shares called for on the face of
this Warrant minus the number of such shares issued to the Registered Holder
upon such exercise as provided in Section 2(a) above.



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     3.      Adjustments.



     The following provisions in relation to adjustments shall be subject to
the provisions in the opening clause of this Warrant relating to the minimum
Exercise Price and to breaches of the United Kingdom Companies Act 1985:



          (a)      Share subdivision and Dividends. If the Company’s outstanding shares
shall be subdivided into a greater number of shares or a dividend in ordinary
shares shall be paid in respect of the ADSs, the Exercise Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately reduced, subject to
the proviso that the Exercise Price shall never be less than the US Dollar
equivalent to 20 pence on the date of exercise. If outstanding shares shall be
combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Exercise Price, the number of shares
of Warrant Stock to be issued upon the exercise of this Warrant shall be
changed to the number determined by dividing (i) an amount equal to the number
of shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Exercise Price in effect immediately prior to
such adjustment, by (ii) the Exercise Price in effect immediately after such
adjustment.



          (b)      Merger, Sale, Reclassification, Etc. In case of any (i) sale or other
disposal of all or substantially all of the Company’s assets or distribution of
property to shareholders (other than distributions payable out of distributable
profits available for that purpose), (ii) reclassification, change or
conversion of the share capital of the Company or of any reorganization of the
Company (or any other company the shares or securities of which are at the time
receivable upon the exercise of this Warrant) or (iii) any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time thereafter shall
be entitled to receive, in lieu of the shares or other securities and property
receivable upon the exercise hereof prior to such sale or other disposal,
reclassification, change, conversion or reorganization, the shares or property
to which such holder would have been entitled upon such consummation if such
holder had exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided in Section 3(a) or 3(b); and in each such case,
the terms of this Section 3 shall be applicable to the shares or other
securities properly receivable upon the exercise of this Warrant after such
sale or other disposal, reclassification, change, conversion or reorganization.



          (c)      Adjustment Certificate. When any adjustment is required to be made in
the Warrant Stock or the Exercise Price pursuant to this Section 3, the Company
shall promptly mail to the Registered Holder a certificate setting forth (i) a
brief statement of the facts requiring such adjustment, (ii) the Exercise Price
after such adjustment and (iii) the kind and amount of shares or other
securities or property into which this Warrant shall be exercisable after such
adjustment.



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     4.      Transfers.



          (a)      Unregistered Security. Each holder of this Warrant acknowledges that
this Warrant and the Warrant Stock have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), and agrees not to
sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Stock issued upon its exercise in the absence of (i) an
effective registration statement under the Securities Act as to this Warrant or
such Warrant Stock and registration or qualification of this Warrant or such
Warrant Stock under any applicable U.S. federal or state securities law then in
effect or (ii) an opinion of counsel, reasonably satisfactory to the Company,
that such registration and qualification are not required. Each certificate or
other instrument for Warrant Stock issued upon the exercise of this Warrant
shall bear a legend substantially to the foregoing effect.



          (b)      Transferability. Subject to the provisions of Section 4(a) hereof,
this Warrant and all rights hereunder are transferable, in whole or in part, to
(i) any entity controlling, controlled by or under common control of the
Registered Holder that is not in the good faith determination of the Company’s
Board of Directors involved in a business that is competitive with the
Company’s business, or (ii) to any other proposed transferee of at least fifty
percent (50%) of the Warrant Shares by surrendering the Warrant with a properly
executed assignment (in the form of Exhibit B hereto) at the principal office
of the Company.



          (c)      Warrant Register. The Company will maintain a register containing the
names and addresses of the Registered Holders of this Warrant. Until any
transfer of this Warrant is made in the warrant register, the Company may treat
the Registered Holder of this Warrant as the absolute owner hereof for all
purposes; provided, however, that if this Warrant is properly assigned in
blank, the Company may (but shall not be required to) treat the bearer hereof
as the absolute owner hereof for all purposes, notwithstanding any notice to
the contrary. Any Registered Holder may change such Registered Holder’s
address as shown on the warrant register by written notice to the Company
requesting such change.



     5.      No Impairment. The Company will not, by amendment of its memorandum
and articles of association or through reorganization, dissolution, sale of
assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will (subject to Section
14 below) at all times in good faith assist in the carrying out of all such
terms 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.



     6.      Termination. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate on the earlier of: (i) April 18, 2010 or (ii)
the closing of any sale of all or substantially all of the assets of the
Company, or any transaction or series of related transactions in which the
Company’s shareholders (which shall include, for the avoidance of doubt,
indirect shareholders who hold ADSs through the depositary) immediately prior
thereto own less than a majority of the voting shares of the Company (or its
successor or parent) immediately thereafter (an “Acquisition”) (the “Expiration
Date”).



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     7.      Notices of Certain Transactions. In case:



          (a)      the Company shall take a record of the holders of its Ordinary Shares
(including ADSs) (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of any class or any other securities, or
to receive any other right, to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or



          (b)      of any capital reorganization of the Company, any reclassification of
the share capital of the Company, or



          (c)      of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,


then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, transfer, dissolution, liquidation or winding-up is to take
place, and the time, if any is to be fixed, as of which the holders of record
of Ordinary Shares (including ADSs) (or such other securities at the time
deliverable upon such reorganization, reclassification, transfer, dissolution,
liquidation or winding-up) are to be determined.




     8.      Reservation of Stock. The Company shall ensure that it will have
sufficient authorized but unissued share capital out of which it can allot and
issue such shares of Warrant Stock as may need to be issued to the Registered
Holder upon the exercise of this Warrant.



     9.      Exchange of Warrants. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section 4
hereof, issue and deliver to or upon the order of such Holder, at the Company’s
expense, a new Warrant or Warrants of like tenor, in the name of such
Registered Holder or as such Registered Holder (upon payment by such Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on the face or faces thereof for the number of shares of ADSs called for on the
face or faces of the Warrant or Warrants so surrendered.



     10.      Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.



     11.      Notices. Any notice required or permitted by this Warrant shall be in
writing and shall be deemed duly given upon receipt, when delivered personally
or by courier, overnight



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delivery service or confirmed facsimile, or 48 hours after being deposited
in the regular mail as certified or registered mail (airmail if sent
internationally) with postage prepaid, addressed (a) if to the Registered
Holder, to the address of the Registered Holder most recently furnished in
writing to the Company and (b) if to the Company, to the address set forth on
the signature page of this Warrant or as subsequently modified by written
notice to the Registered Holder.



     12.      No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.



     13.      No Fractional Shares. No fractional shares of ADSs will be issued in
connection with any exercise hereunder.



     14.      Amendment or Waiver. Any term of this Warrant may be amended or
waived upon written consent of the Company and the registered holders of at
least 80% of the ADSs issuable upon exercise of the outstanding warrants
purchased pursuant to the Purchase Agreement. By acceptance hereof, the
Registered Holder acknowledges that in the event the required consent is
obtained, any term of this Warrant may be amended or waived with or without the
consent of the Registered Holder; provided, however, that any amendment hereof
that would materially adversely affect the Registered Holder in a manner
different from the holders of the remaining warrants issued pursuant to the
Purchase Agreement shall also require the consent of Registered Holder.



     15.      Headings. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.



     16.      Governing Law. This Warrant and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.



     17.      Registration Rights. The Warrant Shares are subject to the re-sale
registration rights described in the Registration Rights Agreement by and
between the Company and the Registered Holder and dated concurrently herewith.



     18.      Representations and Covenants of the Holder. This Warrant has been
entered into by the Company in reliance upon the following representations and
covenants of the Registered Holder:



          (a)      Investment Purpose. The Registered Holder is acquiring the Warrant
and the ADSs issuable upon exercise of the Warrant for its own account, not as
a nominee or agent and with no present intention of selling or otherwise
distributing any part thereof.



          (b)      Private Issue. The Registered Holder understands, except as provided
in the Registration Rights Agreement, (i) that neither the Warrant nor the ADSs
issuable upon exercise of this Warrant is, nor will be, registered under the
Securities Act or qualified under



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applicable state securities laws on the ground that the issuance
contemplated by this Warrant will be exempt from the registration and
qualifications requirements thereof pursuant to Section 4(2) of the Securities
Act and any applicable state securities laws, and (ii) that the Company’s
reliance on such exemption is predicated on the representations set forth in
this Section 18.




          (c)      Disposition of Holder’s Rights. In no event will the Registered
Holder make a disposition of the Warrant or the ADSs issuable upon exercise of
the Warrant in the absence of (i) an effective registration statement under the
Securities Act as to this Warrant or such Warrant Stock and registration or
qualification of this Warrant or such Warrant Stock under any applicable U.S.
federal or state securities law then in effect or (ii) an opinion of counsel,
reasonably satisfactory to the Company, that such registration and
qualification are not required. Notwithstanding the foregoing, the
restrictions imposed upon the transferability of any of its rights to acquire
ADSs do not apply to transfers from the beneficial owner of any of the
aforementioned securities to its nominee or from such nominee to its beneficial
owner, and shall terminate as to any particular ADS when (1) such security
shall have been effectively registered under the Securities Act and sold by the
holder thereof in accordance with such registration or (2) such security shall
have been sold without registration in compliance with Rule 144 under the
Securities Act, or (3) a letter shall have been issued to the Registered Holder
at its request by the staff of the Securities and Exchange Commission (the
“SEC”) or a ruling shall have been issued to the Registered Holder at its
request by the SEC stating that no action shall be recommended by such staff or
taken by SEC, as the case may be, if such security is transferred without
registration under the Securities Act in accordance with the conditions set
forth in such letter or ruling and such letter or ruling specifies that no
subsequent restrictions on transfer are required. Whenever the restrictions
imposed hereunder shall terminate, as hereinabove provided, the Registered
Holder or holder of an ADS then outstanding as to which such restrictions have
terminated shall be entitled to receive from the Company, without expense to
such holder, one or more new certificates for the Warrant or for such ADSs not
bearing any restrictive legend.



          (d)      Financial Risk. The Registered Holder has such business and financial
experience as is required to give it the capacity to protect its own interests
in connection with its investment.



          (e)      Accredited Investor. The Registered Holder is an “accredited
investor” as defined by Rule 501 of Regulation D under the Securities Act, as
presently in effect.



          (f)      4.99% Maximum Share Holding. Notwithstanding anything to the contrary
contained herein, the Holder shall not exercise this Warrant to the extent (but
only to the extent) that such Holder would be the beneficial owner of more then
4.99% of the shares of the Company’s common stock outstanding thereafter. For
purposes of this paragraph, beneficial ownership and all determinations and
calculations shall be determined and calculated in accordance with Secion 13(d)
of the Securities Exchange Act of 1934, as amended, and all applicable rules
and regulations thereunder. It is expressly a term of this Warrant that the
limitations set forth herein shall apply to each successive holder of any of
this Warrant. The foregoing restriction may not be altered, amended, deleted
or changed in any manner whatsoever unless the holders of a majority of the
Company’s outstanding shares of common stock and the Holder (or any successive
holder) approve such alteration, amendment, deletion or change.



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          (g)      Financial Services and Markets Act 2000 (Financial Promotion) Order
2001 (S12001/1335), as amended, (“FPO”). To the extent that the Purchaser is a
resident of the United Kingdom or would otherwise be subject to the Financial
Services and Markets Act 2000, the Purchaser is either a person of a kind
described in Article 19 (Investment Professionals), Article 49 (High Net Worth
Companies, Unincorporated Association etc.) and/or Article 50 (Sophisticated
Investors) of FPO, as presently in effect.



     19.      Representations and Warranties of the Company. This Warrant has been
entered into by the Registered Holder in reliance upon the following
representations and covenants of the Company:



          (a)      Authorization. The Warrant has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the
Company enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.



          (b)      Valid Issuance. The Warrant Stock is duly authorized and reserved for
issuance, and when issued, sold and delivered in accordance with the terms of
this Warrant will be duly and validly issued and fully paid.



          (c)      No Conflict. The execution and delivery of this Warrant do not, and
the consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, breach or default (with or without notice
or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit, under, any provision of the memorandum and articles of association of
the Company or any material agreement attached as an exhibit to the Company’s
SEC Documents (as defined in the Purchase Agreement), or any judgment, order,
decree, statute, law, ordinance, rule, listing requirement or regulation
applicable to the Company, its properties or assets, which conflict, violation,
default or right would have a material adverse effect on the business,
properties, prospects, financial condition or operations of the Company.



     20.      Counterparts. This Warrant may be executed in counterparts, and each
such counterpart shall be deemed an original for all purposes.



[Signature Pages Follow]




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     IN WITNESS WHEREOF, the parties have executed this Warrant to Purchase
American Depositary Shares as of the date first above written.



	 	 	 
	 

	 	INSIGNIA SOLUTIONS, PLC
	

	 	


By:                                      



Name:                                      

                    (print)




Title:                                      



Address:
	

	 	41300 Christy Street
	

	 	Fremont, CA 94538-3115
	

	 	Attention: Chief Financial Officer
	

	 	


Fax Number: (510) 360-3701







AGREED TO AND ACCEPTED BY:



_____________________________

PRINT LEGAL NAME




By ___________________________




Name: ________________________

                    (print)




Title: ________________________




Address:

_____________________________




_____________________________




Fax Number: ___________________




SIGNATURE PAGE TO COMMON STOCK WARRANT




 









 








EXHIBIT A




PURCHASE/EXERCISE FORM




			
	To: Insignia Solutions, plc
	 	Dated:                                      







     The undersigned, pursuant to the provisions set forth in the attached
Warrant No.                    , hereby irrevocably elects to purchase                     American
depositary shares covered by such Warrant and herewith makes payment of $
                   , representing the full purchase price for such shares at the price
per share provided for in such Warrant.



     The undersigned acknowledges that it has reviewed the representations and
warranties contained in Section 18 of the Warrant, including subsection (f)
with regard to the number of shares held by the undersigned, and by its
signature below hereby makes such representations and warranties to the
Company. The undersigned has delivered currently herewith a representation
letter, signed by the undersigned, stating the number of shares of the Company
held by the undersigned immediately prior to the exercise of this Warrant and
representing that the exercise of the Warrant (or portion hereof) would not
violate the provision of Section 18(f). Defined terms contained in such
representations and warranties shall have the meanings assigned to them in the
Warrant.



	 	 	 
	 

	 	Signature::                                      



Name (print)::                                      



Title (if applic.)::                                      



Company (if applic.)::                                      







 









 




 


EXHIBIT B




ASSIGNMENT FORM




     FOR VALUE RECEIVED,                                                           hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant with respect to the number of American depositary shares
covered thereby set forth below, unto:



	 	 	 	 	 	 	 	 	 	 	 
	Name of Assignee
	 	Address/Fax Number
	 	No. of Shares










	 	 	 
	Dated:                                      

	 	Signature:                                      



                                                         



Witness: