Unassociated Document


    Exhibit
4.5

     

    THIS
WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS
AMENDED, (THE “ACT”) OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE
SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE HEREOF MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR, IF
REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
ACT.

    


    THIS
WARRANT AND THE SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE HEREOF ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER INCLUDING A MARKET STAND-OFF
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER. THIS AGREEMENT IS BINDING
UPON TRANSFEREES. A COPY OF THE AGREEMENT IS ON FILE WITH THE SECRETARY OF THE
ISSUER.

    


    WARRANT
TO PURCHASE STOCK


    


    
      	
              Company:

            	
              CYBERU,
      INC.

            
	
              Number
      of Shares:

            	
              As
      provided below

            
	
              Class
      of Stock:

            	
              Series
      C Preferred Stock (“Series C Preferred”)

            
	
              Initial
      Exercise Price:

            	
              As
      provided below

            
	
              Issue
      Date:

            	
              June
      29, 2004

            
	
              Expiration
      Date:

            	
              June
      29, 2011

            


    

     

    THIS
WARRANT CERTIFIES THAT, for value received, receipt of which is hereby
acknowledged, ORIX VENTURE
FINANCE LLC (“Holder”) is entitled to purchase the number of fully paid
and nonassessable shares of Series C Preferred (the “Shares”) of CYBERU, INC. (the “Company”) at the initial
exercise price per Share (the “Warrant Price”) set forth below, as constituted
on the date hereof and as adjusted pursuant to the other terms of this Warrant,
subject to the provisions and upon the terms and conditions set forth in this
Warrant. This Warrant is being issued pursuant to a Loan and Security Agreement
between the Company and Holder dated as of June 29, 2004 (the “Loan Agreement”)
(Capitalized terms used herein, which are not defined, shall have the meanings
set forth in the Loan Agreement.)

    


    ARTICLE
1.         SHARES;
EXERCISE.

    


    1.1          Number of Shares; Warrant
Price; Expiration Date.

    


    (a) The
number of Shares initially subject to this Warrant shall be 225,000 Shares,
subject to adjustment as set forth herein.

    


    (b) The
Warrant Price shall be equal to $1.60 per share, which the Company represents
and warrants is the price per share at which shares of the Series C Preferred
were previously issued (and if they were issued at more than one price, the
lowest of such prices).



    
      
         


      

      
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    (c) In
the event the total principal amount of the Loans made under the Loan Agreement
(the “Loans”) on or before the first anniversary of the Issue Date hereof (the
“Anniversary Date”) is less than $3,000,000, the number of Shares subject to
this Warrant shall be adjusted on the Anniversary Date to a number of Shares
equal to the total principal amount of the Loans made on or before the
Anniversary Date, multiplied by 12%, and divided by the Warrant Price; provided
that if any of the following events (an “Acceleration Event”) occurs on or
before the first anniversary of the Issue Date hereof, then, on and after the
date of the Acceleration Event, the number of Shares subject to this Warrant
shall be an amount equal to $360,000 divided by the Warrant Price, regardless of
the amount of the Loans made under the Loan Agreement: (i) an Acquisition (as
defined below), (ii) a public offering of the Company’s equity securities
registered under the Securities Act of 1933, as amended (the “1933 Act”) (an
“IPO”), or (iii) the prepayment of the Loans in whole or in part. As used
herein, “Acquisition” means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company in which the holders of the Company’s
voting securities before the transaction (for such purpose treating all
outstanding options and warrants to purchase voting securities of the Company as
having been exercised and treating all outstanding debt and equity securities
convertible into voting securities of the Company as having been converted)
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction. Notwithstanding any provision herein to
the contrary, in the event Holder elects to exercise the Warrant, in whole or in
part, prior to the Anniversary Date, the total number of Shares with respect to
which Holder may exercise the Warrant (taking into account previous exercises)
shall not exceed an amount equal to the total principal amount of the Loans made
on or prior to the date of exercise, multiplied by 12%, and divided by the
Warrant Price, unless an Acceleration Event occurs on or before the Anniversary
Date, in which event, the number of Shares subject to this Warrant shall be an
amount equal to $360,000 divided by the Warrant Price, regardless of the amount
of the Loans made under the Loan Agreement.

    


    (d) The
Warrant shall expire upon the Expiration Date set forth above, subject to
earlier termination as provided in Section 1.9 below.

    


    1.2          Method of Exercise.
Holder may exercise this Warrant by delivering (including a facsimile
transmission with confirmation of receipt) a duly executed Notice of Exercise in
substantially the form attached as Appendix 1 to the principal office of the
Company, together with the delivery of this Warrant. Unless Holder is exercising
the conversion right set forth in Section 1.3, Holder shall also deliver to the
Company the aggregate Warrant Price for the Shares being purchased (i) by wire
transfer or by check, or (ii) by notice of cancellation of indebtedness of the
Company to Holder, or (iii) a combination of (i) or (ii).

    


    1.3          Conversion Right. In
lieu of exercising this Warrant as specified in Section 1.2, Holder may from
time to time convert this Warrant, in whole or in part, into a number of Shares
determined by dividing (a) the aggregate fair market value of the Shares or
other securities otherwise issuable upon the proposed whole or partial exercise
of this Warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant to Section 1.6 below.


    
      
         


      

      
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    1.4          Effective Date of
Exercise. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise
(together with any payment or other documents called for by the terms hereof) as
provided in accordance with Section 1.2 above (the “Exercise Date”). The person
entitled to receive the Shares issuable upon exercise of this Warrant shall be
treated for all purposes as the holder of record of such Shares as of the close
of business on the date the Holder is deemed to have exercised this
Warrant.

    


    1.5          No Rights of
Shareholder. This Warrant does not entitle Holder to any voting rights as
a shareholder of the Company prior to the exercise hereof.

    


    1.6          Fair Market Value.
The fair market value of the Shares shall be determined as follows:

    


    (a) If
this Warrant is exercised in connection with and contingent upon an IPO, the
fair market value per Share shall be the initial “price to the public” of the
Company Common Stock specified in the final prospectus with respect to such
offering;

    


    (b) If
the Warrant is exercised at any other time,

    


    (i)         
If the Shares (or the securities issuable upon conversion of the Shares) are
traded on a securities exchange, then the fair market value shall be the the
closing price of such security on such exchange on the trading day immediately
prior to the Exercise Date;

    


    (ii)         If
the Shares (or the securities issuable upon conversion of the Shares) are traded
on the Nasdaq Stock Market or other over-the-counter system, then the fair
market value shall be the closing bid prices of such security on the trading day
immediately prior to the Exercise Date; and

    


    (iii)        If
the Shares (and the securities issuable upon conversion of the Shares) are not
traded in a public market, the Board of Directors of the Company shall determine
fair market value in its good faith judgment. The foregoing notwithstanding, if
Holder advises the Board of Directors in writing that Holder disagrees with such
determination, then the Company and Holder shall promptly agree upon a reputable
investment banking firm to undertake such valuation. If the Company and Holder
are unable to agree on such investment banking firm, then the Holder shall
select three reputable investment banking firms, and from those three firms the
Company shall select one to undertake such valuation. If the valuation of such
investment banking firm is greater than that determined by the Board of
Directors by 10% or more, then all fees and expenses of such investment banking
firm shall be paid by the Company. In all other circumstances, such fees and
expenses shall be paid by Holder.

    


    In making
a determination under clauses (i) or (ii) above, if closing prices or closing
bid prices are no longer reported by a securities exchange or other trading
system, the closing price or closing bid price shall be that which is reported
by such securities exchange or other trading system at 4:00 p.m. New York City
time on the applicable trading day.

    


    1.7          Delivery of Certificate and
New Warrant. Promptly after Holder exercises or converts this Warrant,
the Company shall deliver to Holder certificates for the Shares acquired and, if
this Warrant has not been fully exercised or converted and has not expired, a
new Warrant representing the Shares not so acquired shall be delivered to
Holder.


    
      
         


      

      
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    1.8          Replacement of
Warrants. On receipt of an affidavit of an officer of the Holder of the
loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like
tenor.

    


    1.9          Treatment of Warrant Upon
Acquisition.

    


    (a) In
the event of an Acquisition in which the sole consideration is cash, Holder
agrees that, upon the written request of the Company, either (i) Holder shall
exercise its conversion or purchase right under this Warrant and such exercise
will be deemed effective immediately prior to the consummation of such
Acquisition, or (ii) if Holder elects not to exercise the Warrant, this Warrant
will expire upon the consummation of such Acquisition. The Company shall provide
the Holder with written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may request in
connection with such contemplated Acquisition giving rise to such notice), which
is to be delivered to Holder not less than ten (10) days prior to the closing of
the proposed Acquisition.

    


    (b) In
the event of an Acquisition in which the sole consideration is common stock of a
company which stock is publicly traded on a stock exchange in the United States,
or a combination of such stock and cash, and the total price per Share in the
Acquisition is at least two times the Warrant Price, then Holder agrees that,
upon the written request of the Company, either (i) Holder shall exercise its
conversion or purchase right under this Warrant and such exercise will be deemed
effective immediately prior to the consummation of such Acquisition, or (ii) if
Holder elects not to exercise the Warrant, this Warrant will expire upon the
consummation of such Acquisition. The Company shall provide the Holder with
written notice of its request relating to the foregoing (together with such
reasonable information as the Holder may request in connection with such
contemplated Acquisition giving rise to such notice), which is to be delivered
to Holder not less than ten (10) days prior to the closing of the proposed
Acquisition.

    


    (c) The
exercise of this Warrant under Section 1.9 (a)(i) or (b)(i) above shall be
conditioned upon, and be deemed effective immediately prior to, the consummation
of the proposed Acquisition, and this Warrant shall not expire under Section 1.9
(a)(ii) or (b)(ii) above if the Acquisition is not consummated.

    


    (d) Upon
the closing of any Acquisition other than those particularly described in
Sections 1.9 (a) and (b) above, the successor entity shall assume the
obligations of this Warrant, and this Warrant shall be exercisable for the same
securities, cash, and property as would be payable for the Shares issuable upon
exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing. The
Warrant Price and/or number of Shares shall be adjusted
accordingly.


    
      
         


      

      
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    1.10        Automatic Exercise Prior to
Expiration. To the extent this Warrant is not previously exercised as to
all of the Shares subject hereto, and if the fair market value of one Share is
greater than the Warrant Price then in effect, this Warrant shall be deemed
automatically exercised pursuant to Section 1.3 above (even if not surrendered)
immediately before the Expiration Date (unless the Expiration Date results from
the early termination of the Warrant in accordance with Section 1.9(a)(ii) or
Section 1.9(b)(ii), in which event the Warrant shall not be deemed automatically
exercised pursuant to the provisions of this Section 1.10). For purposes of such
automatic exercise, the fair market value of one Share upon such expiration
shall be determined pursuant to Section 1.6 above. To the extent this Warrant or
any portion thereof is deemed automatically exercised pursuant to this Section,
the Company agrees to promptly notify the holder hereof of the number of Shares,
if any, the holder hereof is to receive by reason of such automatic
exercise.

    


    ARTICLE
2.         ADJUSTMENTS TO THE
SHARES.

    


    2.1   
      Stock Dividends. If
the Company declares or pays a dividend on the class of the securities issuable
upon exercise or conversion of this Warrant payable in Common Stock or other
securities, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record
as of the date the dividend.

    


    2.2          Reclassification, Exchange
or Substitution. Upon any reclassification, exchange, substitution, or
other event that results in a change of the number and/or class of the
securities issuable upon exercise or conversion of this Warrant, Holder shall be
entitled to receive, upon exercise or conversion of this Warrant, the number and
kind of securities and property that Holder would have received for the Shares
if this Warrant had been exercised immediately before such reclassification,
exchange, substitution, or other event. Such an event shall include any
automatic conversion of the outstanding or issuable securities of the Company of
the same class or series as the Shares to Common Stock pursuant to the terms of
the Company’s Certificate of Incorporation (the “Certificate of Incorporation”)
upon the closing of a registered public offering of the Company’s Common
Stock. After the occurrence of such an event, the Company or its successor shall
promptly issue to Holder a new Warrant for such new securities or other
property. The new Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
2 including, without limitation, adjustments to the Warrant Price and to the
number of securities or property issuable upon exercise of the new Warrant. The
provisions of this Section 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.

    


    2.3          Adjustments for
Combinations, Subdivisions, Etc. If the outstanding shares of the class
of the securities issuable upon exercise or conversion of this Warrant are
subdivided or combined, the Warrant Price shall be proportionately decreased and
the number of Shares issuable hereunder shall be proportionately increased in
the case of a subdivision and the Warrant Price shall be proportionately
increased and the number of Shares issuable hereunder shall be proportionately
decreased in the case of a combination.


    
      
         


      

      
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    2.4          Price Adjustment. If
the Company issues additional common shares (including shares of Common Stock
ultimately issuable upon conversion of a security convertible into Common Stock)
after the date of the Warrant and the consideration per additional common share
is less than the Conversion Price of the Series C Preferred (as set forth in the
Certificate of Incorporation) in effect immediately before such issue, the price
at which the Shares are converted to Common Stock shall be adjusted in
accordance with the treatment of the Series C Preferred under the Certificate of
Incorporation subject to all of the exceptions therein set forth.

    


    2.5          No Impairment. The
Company shall not, by amendment of its Certificate of Incorporation or through a
reorganization, transfer of assets, consolidation, merger, dissolution, issue,
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 under
this Warrant by the Company, but shall at all times in good faith assist in
carrying out of all the provisions of this Article 2 and in taking all such
action as may be necessary or appropriate to protect Holder’s rights under this
Article against impairment.

    


    2.6          Fractional Shares. No
fractional Shares shall be issuable upon exercise or conversion of the Warrant
and the number of Shares to be issued shall be rounded down to the nearest whole
Share. If a fractional share interest arises upon any exercise or conversion of
the Warrant, the Company shall eliminate such fractional share interest by
paying Holder a cash amount computed by multiplying the fractional interest by
the fair market value of a full Share.

    


    2.7          Certificate as to
Adjustments; Other Adjustments. Upon each adjustment of the Warrant
Price, the Company at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the
Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price. If in the good faith judgment of the Board of
Directors, there is any change in the outstanding securities of the Company as
to which the other provisions of this Article 2 are not strictly applicable, the
Board of Directors of the Company, in its good faith judgment, shall make an
adjustment in the number and class of shares subject to this Warrant, the
Warrant Price or the application of such provisions, so as to give the Holder,
upon exercise for the same aggregate Warrant Price, the total number, class and
kind of securities as it would have owned had the Warrant been exercised prior
to the event and had it continued to hold such securities until after the event
requiring the adjustment.

    


    ARTICLE
3.         REPRESENTATIONS AND COVENANTS
OF THE COMPANY.

    


    3.1          Representations and
Warranties. The Company hereby represents and warrants to the Holder as
follows:

    


    (a)           The
initial Warrant Price hereunder is not greater than the price per share at which
shares of the Series C Preferred were last issued in an arm’s length transaction
in which at least $500,000 of the shares of Series C Preferred were
sold.

    


    (b)           All
Shares which may be issued upon the exercise of the purchase right represented
by this Warrant, and all securities, if any, issuable upon conversion of the
Shares, shall, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable, and free of any liens and encumbrances except for restrictions on
transfer provided for herein or under applicable federal and state securities
laws. The Company shall, at all times, reserve a sufficient number of Shares and
of shares of Common Stock for issuance upon Holder’s exercise of its rights
hereunder and conversion of the Shares.


    
      
         


      

      
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    (c)  The
Capitalization Table attached hereto as Exhibit A is true and complete as of the
Issue Date.

    


    3.2          Notice of Certain
Events. If the Company proposes at any time (a) to declare any dividend
or distribution upon its Common Stock, whether in cash, property, stock, or
other securities and whether or not a regular cash dividend; (b) to offer for
subscription pro rata to the holders of any class or series of its stock any
additional shares of stock of any class or series or other rights; (c) to effect
any reclassification or recapitalization of Common Stock; (d) to merge or
consolidate with or into any other corporation, or sell, lease, license, or
convey all or substantially all of its assets, or to liquidate, dissolve or wind
up; or (e) to offer holders of registration rights the opportunity to
participate in an underwritten public offering of the company’s securities for
cash, then, in connection with each such event, the Company shall give Holder
(1) at least 20 days prior written notice of the date on which a record will be
taken for such dividend, distribution, or subscription rights (and specifying
the date on which the holders of Common Stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (a)
and (b) above; (2) in the case of the matters referred to in (c) and (d) above
at least 20 days prior written notice of the date when the same will take place
(and specifying the date on which the holders of Common Stock will be entitled
to exchange their Common Stock for securities or other property deliverable upon
the occurrence of such event); and (3) in the case of the matter referred to in
(e) above, the same notice as is given to the holders of such registration
rights.

    


    3.3          Information Rights.
So long as the Holder holds this Warrant and/or any of the Shares, the Company
shall deliver to the Holder (a) promptly after mailing, copies of all notices or
other written communications to the shareholders of the Company and (b) the
information provided to the Investors (as such term is defined in Series A
Purchase Agreement) pursuant to Section 5.1 of the Series A Purchase Agreement.
For purposes hereof, the term “Series A Purchase Agreement” means that certain
Series A Convertible Preferred Stock Purchase Agreement by and among the Company
and the Investors (as defined therein) dated as of October 6, 2000.

    


    3.4          Registration Under
Securities Act of 1933, as amended. The Company agrees that with respect
to the Shares or, if the Shares are convertible into Common Stock of the
Company, such Common Stock, Holder shall have the piggyback registration rights
set forth in Section 4 of the Registration Rights Agreement as the same is in
effect on the date hereof; and in furtherance thereof, the Company will enter a
joinder agreement with the Holder whereby the Holder shall be made a party to
the Registration Rights Agreement. For purposes hereof, the term “Registration
Rights Agreement” means that certain Registration Rights Agreement by and among
the Company and the Investors (as defined therein) dated as of October 6, 2000,
as amended.

     

    ARTICLE
4.         REPRESENTATIONS, WARRANTIES
OF THE HOLDER. The Holder represents and warrants to the Company as
follows:

    
      
         


      

      
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    4.1          Purchase for Own
Account. This Warrant and
the securities to be acquired upon exercise of this Warrant by the Holder will
be acquired for investment for the Holder’s account, not as a nominee or agent,
and not with a view to, or for resale in connection with, any distribution
thereof in violation of the Securities Act of 1933, as amended (the “1933 Act”),
and the Holder has no present intention of selling, granting any participation
in, or otherwise distributing the same (except for transfers to Holder’s
affiliates, which affiliates are “accredited investors” within the meaning of
Rule 501 of Regulation D promulgated under the 1933 Act). The Holder also
represents that the Holder has not been formed for the specific purpose of
acquiring this Warrant or the Shares. Upon exercise of this Warrant, Holder
shall, if so requested by the Company, confirm in writing in a form satisfactory
to the Company that the securities issuable upon exercise of the Warrant are
being acquired for investment purposes only and not with a view toward
distribution or resale in violation of the 1933 Act.

    


    4.2          Disclosure of
Information. The Holder
has received or has had full access to all the information it considers
necessary or appropriate to make an informed investment decision with respect to
the acquisition of this Warrant and its underlying securities. The Holder
further has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of this Warrant and
its underlying securities and to obtain additional information (to the extent
the Company possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to the Holder
or to which the Holder has access.

    


    4.3       
  Investment
Experience. The Holder:
(i) has experience as an investor in securities and acknowledges that the Holder
is able to fend for itself, can bear the economic risk of the Holder’s
investment in this Warrant and its underlying securities and has such knowledge
and experience in financial or business matters that the Holder is capable of
evaluating the merits and risks of its investment in this Warrant and its
underlying securities and/or (ii) has a preexisting personal or business
relationship with the Company and certain of its officers, directors or
controlling persons of a nature and duration that enables the Holder to be aware
of the character, business acumen and financial circumstances of such
persons.

    


    4.4          Accredited Investor
Status. The Holder is an
“accredited investor” within the meaning of Rule 501 of Regulation D promulgated
under the 1933 Act.

    


    4.5          Shares Not
Registered. Holder
understands that the Warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) have not been
registered under the 1933 Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the 1933
Act, and that they must be held by Holder indefinitely, and that Holder must
therefore bear the economic risk of such investment indefinitely, unless a
subsequent disposition thereof is registered under the 1933 Act or is exempted
from such registration. Holder further understands that the Warrant and the
Shares (and the securities issuable, directly or indirectly, upon conversion of
the Shares, if any) 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 Holder’s investment intent expressed above.


    
      
         


      

      
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    4.6          Market Stand-Off
Agreement. Holder agrees that this Warrant and the Shares (and the
securities issuable, directly or indirectly, upon conversion of the Shares, if
any) are subject to the market stand-off provisions set forth in Section 11 of
the Registration Rights Agreement as in effect on the date hereof.

    


    ARTICLE
5.         MISCELLANEOUS

    


    5.1          Term. This Warrant is
exercisable, in whole or in part, at any time and from time to time on or before
the Expiration Date.

    


    5.2          Legends. This Warrant
and the Shares (and the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) shall be imprinted with legends in
substantially the following form:

    


    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE
“ACT”) OR ANY STATE SECURITIES LAWS. THESE SECURITES AND THE SECURITIES ISSUABLE
UPON CONVERSION OR EXERCISE HEREOF MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR, IF REQUESTED BY
THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.

    


    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
CONVERSION OR EXERCISE HEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
INCLUDING A MARKET STAND-OFF AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER. THIS AGREEMENT IS BINDING UPON TRANSFEREES. A COPY OF THE AGREEMENT IS
ON FILE WITH THE SECRETARY OF THE ISSUER.

    


    5.3          Compliance with Securities
Laws on Transfer. This Warrant and the Shares issuable upon exercise of
this Warrant (and the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) 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.

    


    5.4          Transfer Procedure.
Subject to the provisions of Section 5.3 and this Section 5.4, Holder may
transfer all or part of this Warrant or the Shares issuable upon exercise of
this Warrant (or the securities issuable, direcdy or indirectly, upon conversion
of the Shares, if any) by giving the Company notice of the portion of the
securities being transferred setting forth the name, address and taxpayer
identification number of the transferee and surrendering the certificate
representing the securities to be transferred to the Company for reissuance to
the transferee(s) (and Holder if applicable), together with a written opinion of
counsel or other evidence, if reasonably satisfactory to the Company, to the
effect that such transfer may be effected without registration or qualification
(under the 1933 Act and any other applicable federal or state securities laws
then in effect) of the securities and indicating whether or not certificates for
the securities to be transferred require any restrictive legend as to applicable
restrictions on transferability in order to ensure compliance with applicable
law. Notwithstanding anything contained in this Warrant, Holder shall not
transfer this Warrant or the Shares issuable upon exercise of this Warrant (or
the securities issuable, directly or indirectly, upon conversion of the Shares,
if any) to any person known to the Holder to be a competitor of the Company
(except for transfers of the Shares in a transaction on the open
market).


    
      
         


      

      
        -9-

        
          

        

      

      
         


      

    

    


    5.5          Notices. All notices
and other communications from the Company to the Holder, or vice versa, shall be
deemed delivered and effective when given personally or mailed by first-class
registered or certified mail, postage prepaid, to such address as may have been
furnished to the Company or the Holder, as the case may be, in writing by the
Company or the Holder from time to time.

    


    5.6          Waiver; Amendment.
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is
sought.

    


    5.7          Issue Tax. The
issuance of the securities subject to this Warrant shall be made without charge
to the Holder for any issue tax (other than applicable income taxes) in respect
thereof.

    


    5.8          Attorneys Fees. In
the event of any dispute between the parties concerning the terms and provisions
of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs reasonably incurred in such dispute,
including reasonable attorneys’ fees.

    


    [Signatures
on Next Page]


    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    

    


    5.9          Governing Law. This
Warrant and all acts, transactions, disputes and controversies arising hereunder
or relating hereto, and all rights and obligations of Holder and Company shall
be governed by, and construed in accordance with the internal laws (and not the
conflict of laws rules) of the State of California.

    


    
      	 
      	
              Company:

            
	 
      	 
      
	 
      	
              CyberU,
      Inc.

            
	 
      	 
      
	 
      	
              By

            	/s/
      Adam Miller	 
      
	 
      	
              Title  

            	President
      and CEO	 
      


    

    


    Holder:

    


    ORIX
Venture Finance LLC

    


    
      	
              By

            	
              /s/ Kevin P. Sheehan

            	 
      
	 
      	
              Kevin
      P. Sheehan,

            
	 
      	
              President
      and CEO

            


    

     

    
      
         


      

      
        -11-

        
          

        

      

      
         


      

    

    


    APPENDIX
1

    


    NOTICE OF
EXERCISE

    


    1.           The
undersigned hereby elects to purchase ______________ shares of the Series C
Preferred Stock of CyberU, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in
full.

    


    1.           The
undersigned hereby elects to convert the attached Warrant into Shares in the
manner specified in the Warrant. This conversion is exercised with respect to
_____________ of the Shares covered by the Warrant.

    


    [Strike
paragraph that does not apply.]

    


    2.           Please
issue a certificate or certificates representing said shares in the name of the
undersigned or in such other name as is specified below:


    
       

      
        

      

       

      
        
          

        

        
           

          
            

          

        

      

    

    
 

    3.           The
undersigned represents it is acquiring the Shares solely for its own account and
not as a nominee for any other party and not with a view toward the resale or
distribution thereof except in compliance with applicable securities
laws.

    


    
      	 
      	
              (Signature)

            
	 
      	 
      
	 
      	 
      	 
      
	 
      	
              Date

            


    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    Exhibit
A

    Capitalization
Table


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    CyberU,
Inc.

    %’s
of Each Security

    As
of 06/28/04

    


    
      
        
          	
                  Common

                	 	 	8,206,692	 	 	 	32.98	%
	 
      	 	 	 	 	 	 	 	 
	
                  Series
      A

                	 	 	7,723,640	 	 	 	31.04	%
	 
      	 	 	 	 	 	 	 	 
	
                  Series
      B

                	 	 	2,600,000	 	 	 	10.45	%
	 
      	 	 	 	 	 	 	 	 
	
                  Series
      C

                	 	 	2,031,249	 	 	 	8.16	%
	 
      	 	 	 	 	 	 	 	 
	
                  Warrants
      - Common

                	 	 	765,500	 	 	 	3.08	%
	 
      	 	 	 	 	 	 	 	 
	
                  Warrants
      - Series
      C - Orix

                	 	 	380,000	 	 	 	1.53	%
	 
      	 	 	 	 	 	 	 	 
	
                  Options
      - Total in Pool

                	 	 	3,483,345	 	 	 	14.00	%
	
                  Less:
      Exercised

                	 	 	(309,192	)	 	 	-1.24	%
	 
      	 	 	 	 	 	 	 	 
	
                  Total

                	 	 	24,881,234	 	 	 	100	%
	 
      	 	 	 	 	 	 	 	 
	
                  Authorized
      Common

                	 	 	24,926,234