Form of Warrant Agreement



 Exhibit 4.8 
  

OPENWAVE SYSTEMS INC. 
  
 FORM OF WARRANT TO PURCHASE COMMON STOCK 
  

			
	No.    -                    	  	                    ,
200    
	
	VOID AFTER
                    , 200    

  
 THIS CERTIFIES
THAT, for value received, [PURCHASER], with its principal office at [ADDRESS], or assigns (the “Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below) from OPENWAVE SYSTEMS INC., a Delaware
corporation, with its principal office at 2100 Seaport Blvd., Redwood City, CA 94063 (the “Company”)              shares of the Common Stock of the Company as provided
herein (the “Common Stock”). 
  
 1. DEFINITIONS. As used
herein, the following terms shall have the following respective meanings: 
  
 (a) “Exercise Period” shall mean the period commencing with the date hereof and ending              years from the date hereof, unless
sooner terminated as provided below. 
  
 (b)
“Exercise Price” shall mean $             per share, subject to adjustment pursuant to Section 5 below. 
  
 (c) “Exercise Shares” shall mean the shares of the Company’s Common Stock issuable upon
exercise of this Warrant. 
  
 2. EXERCISE OF WARRANT. The rights
represented by this Warrant may be exercised in whole or in part at any time during the Exercise Period, by delivery of the following to the Company at its address set forth above (or at such other address as it may designate by notice in writing to
the Holder): 
  
 (a) An executed Notice of
Exercise in the form attached hereto; 
  
 (b)
Payment of the Exercise Price either (i) in cash or by check, or (ii) by cancellation of indebtedness; and 
  
 (c) This Warrant. 
  
 Upon the exercise of the rights represented by this Warrant, a certificate or certificates for the Exercise Shares so purchased, registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder within a reasonable time after the rights represented by this Warrant shall have been so exercised. 









 The person in whose name any certificate or certificates for Exercise Shares are to be issued upon
exercise of this Warrant shall be deemed to have become the holder of record of such shares on the date on which this Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open. 
  
 2.1 Net Exercise. Notwithstanding any provisions herein to the contrary, if the fair market value of one share of the Company’s Common Stock is greater than the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant by payment of cash, the Holder may elect to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula: 
  

					
	 	  	X =	  	Y (A- B)
	 	  	  	      A
			
	Where	  	X =	  	the number of shares of Common Stock to be issued to the Holder
			
	 	  	Y =	  	the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such
calculation)
			
	 	  	A =	  	the fair market value of one share of the Company’s Common Stock (at the date of such calculation)
			
	 	  	B =	  	Exercise Price (as adjusted to the date of such calculation)

  
 For purposes of the
above calculation, the fair market value of one share of Common Stock shall be determined by the Company’s Board of Directors in good faith. 
  
 3. COVENANTS OF THE COMPANY. 
  
 3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all Exercise Shares that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof. The Company further covenants and agrees that the
Company will at all times during the Exercise Period, have authorized and reserved, free from preemptive rights, a 

  

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sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. If at any time during the Exercise
Period the number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. 
  
 3.2 No Impairment. Except and to the extent as waived or consented to by the Holder, the Company will not, by amendment of its Articles of Incorporation
or through any 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
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 exercise rights of the
Holder against impairment. 
  
 3.3 Notices of Record Date. In the
event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid
in previous quarters) or other distribution, the Company shall mail to the Holder, at least ten (10) days prior to the date specified herein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend
or distribution. 
  
 4. REPRESENTATIONS OF HOLDER. 
  
 4.1 Acquisition of Warrant for Personal Account. The Holder represents and
warrants that it is acquiring the Warrant solely for its account for investment and not with a view to or for sale or distribution of said Warrant or any part thereof. The Holder also represents that the entire legal and beneficial interests of the
Warrant and Exercise Shares the Holder is acquiring is being acquired for, and will be held for, its account only. 
  
 5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups,
recapitalizations, reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations, or the like, the number and class of shares available under the Warrant in the aggregate and the Exercise Price shall be
correspondingly adjusted to give the Holder of the Warrant, on exercise for the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would have owned had the Warrant been exercised prior to the event and had the
Holder continued to hold such shares until after the event requiring adjustment; provided, however, that such adjustment shall not be made with respect to, and this Warrant shall terminate if not exercised prior to, the events set forth in
Section 7 below. The form of this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject to this Warrant. 
  

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 6. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share.
If, after aggregation, the exercise would result in the issuance of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash equal to the product resulting
from multiplying the then current fair market value of an Exercise Share by such fraction. 
  
 7. EARLY TERMINATION. In the event of, at any time during the Exercise Period, any capital reorganization, or any reclassification of the capital stock of the Company (other than a change in par value or from par
value to no par value or no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or the consolidation or merger of the Company with or into another corporation (other than a merger solely to
effect a reincorporation of the Company into another state), or the sale or other disposition of all or substantially all the properties and assets of the Company in its entirety to any other person, this Warrant shall terminate unless exercised
immediately upon the occurrence of such reorganization, reclassification, consolidation, merger or sale or other disposition of the Company’s assets. 
  
 8. NO SHAREHOLDER RIGHTS. This Warrant in and of itself shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company.

  
 9. TRANSFER OF WARRANT. This Warrant and all rights hereunder
are transferable, by the Holder in person or by duly authorized attorney, upon delivery of this Warrant and the form of assignment attached hereto to any transferee designated by Holder only with the prior written consent of the Company. If
requested, the transferee shall sign an investment letter in form and substance satisfactory to the Company. 
  
 10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms as to indemnity
or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed. Any such new
Warrant shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by anyone. 
  
 11. NOTICES, ETC. All notices and other communications required or permitted
hereunder shall be in writing and shall be sent by facsimile telex, telegram, express mail or other form of rapid communications, if possible, and if not then such notice or communication shall be mailed by first-class mail, postage prepaid,
addressed in each case to the party entitled thereto at the following addresses: (a) if to the Company, to Openwave Systems Inc., Attention: [NAME OF CONTACT PERSON], 2100 Seaport Blvd., Redwood City, CA 94063 and (b) if to the Holder,
[ADDRESS], or at such other 

  

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address as one party may furnish to the other in writing. Notice shall be deemed effective on the date dispatched if by personal delivery, facsimile, telex
or telegram, two days after mailing if by express mail, or three days after mailing if by first-class mail. 
  
 12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

  
 13. GOVERNING LAW. This Warrant and all rights, obligations
and liabilities hereunder shall be governed by the laws of the State of Delaware. 
  
 [Remainder of page intentionally left blank] 
  

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 IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of                     , 200    . 
  

			
	 OPENWAVE SYSTEMS INC.

		
	 By:
	 	 
	 Name: 
	 	 
	 Title:
	 	 


  

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 NOTICE OF EXERCISE 
  

	TO:	OPENWAVE SYSTEMS INC. 

  
 (1)  ̈ The undersigned hereby elects to purchase
                     shares of Common Stock of Openwave Systems Inc. (the “Company”) pursuant to the terms of the attached Warrant,
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any. 
  
  ̈ The undersigned hereby elects to purchase
                     shares of Common Stock of Openwave Systems Inc. (the “Company”) pursuant to the terms of the net exercise
provisions set forth in Section 2.1 of the attached Warrant, and shall tender payment of all applicable transfer taxes, if any. 
  
 (2) Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is
specified below: 
  

	
	 
	(Name)
	 
	
	 
	
	 
	(Address)

  
 (3) If a registration
statement covering the exercise of the shares of Common Stock is not then effective and the exercise is being effected other than pursuant to Section 2.1 of the Warrant, the undersigned represents that (i) the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares;
(ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company;
(iii) the undersigned is experienced in making investments of this type and has such knowledge and background in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment and protecting
the undersigned’s own interests; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act of 1933, as amended (the “Securities
Act”), by reason of a specific exemption from the registration provisions of the Securities Act, which exemption depends upon, among other things, the bona fide nature of the investment intent as expressed herein, and, because such securities
have not been registered under the Securities Act, they must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration 

  

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is available; (v) the undersigned is aware that the aforesaid shares of Common Stock may not be sold pursuant to Rule 144 adopted under the Securities
Act unless certain conditions are met and until the undersigned has held the shares for the number of years prescribed by Rule 144, that among the conditions for use of the Rule is the availability of current information to the public about the
Company and the Company has not made such information available and has no present plans to do so; and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock unless and until there is
then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel
satisfactory to the Company, stating that such registration is not required. 
  

					
			
	  	 	 	 	  
	(Date)	 	 	 	 (Signature)

			
	  	 	 	 	  
	 	 	 	 	 (Print name)


  

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 ASSIGNMENT FORM 
  
 (To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase
shares.) 
  
 FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to 
  
 Name:____________________________________________________________________________________________ 
 (Please Print) 
  
 Address:___________________________________________________________________________________________ 
 (Please Print) 
  
 Dated:_________________________________________________________________________________, 20      
  
 Holder’s 
 Signature:__________________________________________________________________________________________ 
  
 Holder’s 
 Address:____________________________________________________________________________________________ 
  
 NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever. Officers of corporations and those
acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. 
  

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