**Exhibit 10.33**

 

**WARRANT TO PURCHASE COMMON STOCK**

 

**OF**

 

**[REDACTED]**

 

Warrant             

 

This is to Certify That, FOR VALUE RECEIVED, COMDIAL CORPORATION, or assigns (“Holder”), is entitled topurchase, subject to the provisions of this Warrant, from [REDACTED], a [REDACTED] corporation (the “Company”), Two Hundred and Sixty Three (263) fully paid, validly issued and nonassessable shares of Series A Common Stock of theCompany (“Common Stock”) at a price of $.01 per share at any time or from time to time on or after October 5, 2004 (the “Exercise Date”). The shares of Common Stock deliverable upon such exercise, and as adjustedfrom time to time, are hereinafter sometimes referred to as “Warrant Shares” and the exercise price of a share Common Stock in effect at any time and as adjusted from time to time is hereinafter sometimes referred to as the“Exercise Price.” 

 

(a) EXERCISE OF WARRANT.

 

(1) This Warrant may be exercised in whole orin part at any time or from time to time on or after the Exercise Date; provided, however, that (i) if such day is a day on which banking institutions in the State of New York are authorized by law to close, then on the next succeeding day whichshall not be such a day, and (ii) in the event of any merger, consolidation or sale of substantially all the assets of the Company as an entirety, resulting in any distribution to the Company’s stockholders, the Holder shall have the right toexercise this Warrant into the kind and amount of shares of stock and other securities and property (including cash) receivable by a holder of the number of shares of Common Stock into which this Warrant might have been exercisable immediately priorthereto. This Warrant may be exercised by presentation and surrender hereof to the Company at its principal office with the Purchase Form annexed hereto duly executed and accompanied by payment of the Exercise Price for the number of Warrant Sharesspecified in such form. As soon as practicable after each such exercise of this Warrant, following the receipt of good and available funds, the Company shall issue and deliver to the Holder a certificate or certificates for the Warrant Sharesissuable upon such exercise, registered in the name of the Holder or its designee and bearing a restrictive legend substantially similar to the one set forth on the front page of this Warrant. If this Warrant should be exercised in part only, theCompany shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the rights of the Holder thereof to purchase the balance of the Warrant Shares purchasable thereunder. As of the end of business on the dateof receipt by the Company of this Warrant at its office in proper form for exercise, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books ofthe Company shall then be closed or that certificates representing such shares shall not then be physically delivered to the Holder. 

 

(b) RESERVATION OF SHARES. The Company shall at all times reserve for issuance and/or delivery upon exercise of the Warrants such number of shares ofCommon Stock as shall be required for issuance and delivery upon exercise of the Warrants. 

 

(c) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is exchangeable, without expense, atthe option of the Holder, upon presentation and surrender hereof to the Company or at the office of its stock transfer agent, if any, for other warrants of different denominations entitling the holder thereof to purchase in the aggregate the samenumber of shares of Common Stock purchasable hereunder. Upon surrender of this Warrant to the Company at its principal office or at the office of its stock transfer agent, if any, with the Assignment Form annexed hereto duly executed by the Holderand funds sufficient to pay any transfer tax delivered by the Holder, the Company shall, without charge, subject to the Holder’s compliance with the restrictive legend set forth on the front page of this Warrant, execute and deliver a newWarrant in the name of the assignee named in such instrument of assignment and this Warrant shall promptly be cancelled. This Warrant may be divided or combined with other warrants that carry the same rights upon presentation hereof at the principaloffice of the Company or at the office of its stock transfer agent, if any, together with a written notice specifying the denominations in which new warrants are to be issued to the Holder and signed by the Holder hereof. The term“Warrants” as used herein includes any warrants into which this Warrant may be divided or exchanged. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and (inthe case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant, if mutilated, the Company will execute and deliver a new Warrant of like tenor and date. Any such new Warrantexecuted and delivered shall constitute an additional contractual obligation on the part of the Company, whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at any time enforceable by anyone. 

 

(d) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitledto any rights of a shareholder in the Company, either at law or equity, and the rights of the Holder are limited to those expressed in this Warrant and are not enforceable against the Company except to the extent set forth herein. 

 

(e) ADJUSTMENT PROVISIONS. The Exercise Price in effect at any time and thenumber and kind of securities purchasable upon the exercise of the Warrants shall be subject to adjustment from time to time upon the happening of certain events as follows: 

 

(1) In case the Company shall hereafter (i) declare a dividend or make a distribution on its outstandingCommon Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding Common Stock into a greater number of shares, or (iii) combine or reclassify its outstanding Common Stock into a smaller number of shares, the Exercise Price ineffect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification shall be adjusted so that it shall equal the price determined by multiplying the Exercise Price bya fraction, the denominator of which shall be the number of shares of Common Stock outstanding after giving effect to such action, and the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such action.Such adjustment shall be made successively whenever any event listed above shall occur. 

 

(2) Whenever the Exercise Price payable upon exercise of each Warrant is adjusted pursuant to Subsection (1), the number of Warrant Sharespurchasable upon exercise of this Warrant shall simultaneously be adjusted to the number of Warrant Shares resulting from multiplying the number of Warrant Shares initially issuable upon exercise of this Warrant by the 

 

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Exercise Price in effect immediately prior to such adjustment and dividing the product so obtained by the Exercise Price, as adjusted. 

 

(3) In the event that at any time, as a result of anadjustment similar to any adjustment made pursuant to Subsection (1) above, the Holder of this Warrant thereafter shall become entitled to receive any shares of the Company, other than Common Stock, thereafter the number of such other shares soreceivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Subsection (1) above. 

 

(4) Irrespective of any adjustments in the Exercise Priceor the number or kind of shares purchasable upon exercise of this Warrant, Warrants theretofore issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to thisWarrant. 

 

(f) NOTICES TO WARRANT HOLDERS. So long as thisWarrant shall be outstanding, (i) if the Company shall pay any dividend or make any distribution upon the Common Stock or (ii) if the Company shall offer to the holders of Common Stock for subscription or purchase by them any share of any class orany other rights or (iii) if any capital reorganization of the Company, reclassification of the capital stock of the Company, consolidation or merger of the Company with or into another corporation, sale, lease or transfer of all or substantiallyall of the property and assets of the Company to another corporation, or voluntary or involuntary dissolution, liquidation or winding up of the Company shall be effected, then in any such case, the Company shall cause to be mailed by certified mailto the Holder, at least fifteen days prior the date specified in (x) or (y) below, as the case may be, a notice containing a brief description of the proposed action and stating the date on which (x) a record is to be taken for the purpose of suchdividend, distribution or rights, or (y) such reclassification, reorganization, consolidation, merger, conveyance, lease, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which the holders of CommonStock or other securities shall receive cash or other property deliverable upon such reclassification, reorganization, consolidation, merger, conveyance, dissolution, liquidation or winding up. 

 

(g) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of anyreclassification, capital reorganization or other change of outstanding Common Stock of the Company, or in case of any consolidation or merger of the Company with or into another corporation (other than a merger with a subsidiary in which merger theCompany is the continuing corporation and which does not result in any reclassification, capital reorganization or other change of outstanding Common Stock of the class issuable upon exercise of this Warrant) or in case of any sale, lease orconveyance to another corporation of the property of the Company as an entirety, the Company shall, as a condition precedent to such transaction and to the extent reasonably deemed necessary, cause effective provisions to be made so that the Holdershall have the right thereafter by exercising this Warrant at any time prior to the expiration of the Warrant, to purchase the kind and amount of shares of stock and other securities and property receivable upon such reclassification, capitalreorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock that might have been purchased upon exercise of this Warrant immediately prior to such reclassification, change,consolidation, merger, sale or conveyance. Any such provision shall include provision for adjustments which shall be as nearly equivalent as may be practicable to the adjustments 

 

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provided for in this Warrant. The foregoing provisions of this Section (h) shall similarly apply to successive reclassifications, capital reorganizations andchanges of Common Stock and to successive consolidations, mergers, sales or conveyances. In the event that in connection with any such capital reorganization or reclassification, consolidation, merger, sale or conveyance, additional shares of CommonStock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for a security of the Company other than Common Stock, any such issue shall be treated as an issue of Common Stock covered by the provisions of Subsection(1) of Section (f) hereof. 

 

(h) MODIFICATION OF AGREEMENT. Theprovisions of this Warrant may from time to time be amended, modified or waived, if such amendment, modification or waiver is applicable to all of the Warrants and is in writing and consented to by the Company and the holders of at least a majorityof the outstanding Warrants and Warrant Shares and such amendment, modification or waiver shall be binding upon the holder of this Warrant (and any assignee thereof) regardless of whether the holder consented to such amendment, modification orwaiver; provided that nothing shall prevent the Company and a Registered Holder from consenting to modifications to this Warrant which affect or are applicable to such Registered Holder only. 

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in itsname by its duly authorized officer. 

 

[REDACTED]
By:  
 

Dated: October 1, 2004

 

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PURCHASE FORM 

 

Dated                    

 

(1) The undersigned hereby irrevocably elects to exercise the within Warrant to the extent of purchasing                 shares of Common Stock of [REDACTED] (or such number of shares of Common Stock or other securities or property to which the undersigned isentitled in lieu thereof or in addition thereto under the provisions of the Warrant). 

 

(2) The undersigned elects to exercise the within Warrant on a cashless basis pursuant to the provisions of Section (a)(2) of the Warrant by checking below: 

 

             check if cashless exercise; or 

 

(3) The undersigned encloses herewith a bank draft, certified check or money order payableto the Company in payment of the exercise price determined under, and on the terms specified in, the Warrant. 

 

(4) The undersigned hereby irrevocably directs that the said shares be issued and delivered as follows: 

 

**Name(s) in Full**
 
**Address(es)**
 
**Number of Shares**
  
**S.S. or IRS #**

_____________________
 _____________________ _____________________  _____________________
_____________________
 _____________________ _____________________  _____________________
 
  
Signature of Subscriber

 
  
Print Name

 

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ASSIGNMENT FORM 

 

FOR VALUE RECEIVED,                                                    hereby sells, assigns and transfers unto 

 

Name                                                            

(Please typewrite or print in block letters)

 

Address                                                        

 

the right to purchase Common Stock represented by this Warrant to the extent of          shares as to which such right is exercisable and does hereby irrevocablyconstitute and appoint                      Attorney, to transfer the same on the books of the Company with full power of substitution in thepremises. 

 

Date                                                            

Signature                                                            

 

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