EXHIBIT 10.10
NEITHER THIS WARRANT NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("ACT"), OR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED. THE COMPANY'S SUBSCRIPTION AGREEMENT
WITH THE HOLDER CONTAINS ADDITIONAL PROVISIONS RESTRICTING THE TRANSFER OF THIS
WARRANT. A COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE COMPANY'S
OFFICE.
For the Purchase of
No._______________ ________ shares of
Common Stock
CLASS A WARRANT FOR THE PURCHASE OF
SHARES OF COMMON STOCK
OF
AUGMENT SYSTEMS, INC.
(A DELAWARE CORPORATION)
Augment Systems, Inc., a Delaware corporation ("Company"), hereby
certifies that ________________, or his, her or its registered assigns
("Registered Holder"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time or from time to time during the period
commencing December 1, 1997 ("Commencement Date") and ending on November 30,
2000 ("Expiration Date"), ______ shares of Common Stock, $.01 par value, of the
Company ("Common Stock"), at an initial exercise price equal to $1.00 per share
(subject to adjustment as provided below); provided, however, that if the
Company consummates an initial public offering of its securities ("IPO") by May
30, 1997, then the per-share exercise price of the Warrant shall be adjusted to
be equal to one-half of the offering price of a share of Common Stock in the
IPO. The number of shares of Common Stock purchasable upon exercise of this
Warrant, and the exercise price per share, each 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.
1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in
whole or in part, by surrendering this Warrant, with the purchase form appended
hereto as
Exhibit I duly executed by such Registered Holder, at the principal office of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Exercise Price payable in respect of the number of shares of Warrant Stock being
purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which the
Warrant shall have been surrendered to the Company as provided in subsection
1(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 subsection 1(c) below shall be deemed to have become the holder or holders of
record of the Warrant Stock represented by such certificates.
(c) As soon as practicable after the exercise of this Warrant
in full 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, subject to the terms and conditions hereof, as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct:
(i) a certificate or certificates for the number of
full shares of Warrant Stock to which such Registered Holder shall be
entitled upon such exercise, 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 (without 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 purchased by the Registered Holder upon
such exercise as provided in subsection 1(a) above.
(d) In lieu of the payment of the Exercise Price in the manner
required by Section 1(a), the Holder shall have the right (but not the
obligation) to pay the Exercise Price for the shares of Common Stock being
purchased with this Warrant upon exercise by the surrender to the Company of any
exercisable but unexercised portion of this Warrant having a "Value" (as defined
below), at the close of trading on the last trading day immediately preceding
the exercise of this Warrant, equal to the Exercise Price multiplied by the
number of shares of Common Stock being purchased upon exercise ("Cashless
Exercise Right"). The sum of (x) the number of shares of Common Stock being
purchased upon exercise of the non-surrendered portion of this Warrant pursuant
to this Cashless Exercise Right and (y) the number of shares of Common Stock
underlying the portion of this Warrant being surrendered, shall not in any event
be greater than the total number of shares of Common Stock purchasable upon the
complete exercise of this Warrant if the Exercise Price were paid in cash. The
"Value" of the portion of the Warrant being surrendered shall equal the
remainder
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derived from subtracting (x) the Exercise Price multiplied by the number of
shares of Common Stock underlying the portion of this Warrant being surrendered
from (y) the Market Price of a share of Common Stock multiplied by the number of
shares of Common Stock underlying the portion of this Warrant being surrendered.
As used in this Warrant, the term "Market Price" at any date shall be deemed to
be the last reported sale price of the Common Stock on such date, or, in case no
such reported sale takes place on such day, the average of the last reported
sale price for the immediately preceding three trading days, in either case as
officially reported by the national securities exchange on which the Common
Stock is trading, or, if the Common Stock is not principally traded on any
national securities exchange, the last reported sale price as furnished by the
NASD through the Nasdaq National Market or SmallCap Market, or, if applicable,
the OTC Bulletin Board, or if the Common Stock is not listed or admitted to
trading on the Nasdaq National Market or SmallCap Market or OTC Bulletin Board
or similar organization, as determined in good faith by resolution of the Board
of Directors of the Company, based on the best information available to it. The
Cashless Exercise Right may be exercised by the Holder on any business day on or
after the Commencement Date and not later than the Expiration Date by delivering
the Warrant with a duly executed exercise form attached hereto with the cashless
exercise section completed to the Company, exercising the Cashless Exercise
Right and specifying the total number of shares of Common Stock being purchased
pursuant to such Cashless Exercise Right.
2. Adjustments to Exercise Price and Number of Securities.
(a) If the outstanding shares of the Company's Common Stock
shall be subdivided or split into a greater number of shares, or a dividend in
Common Stock shall be paid in respect of Common Stock, 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
split or immediately after the record date of such dividend be proportionately
reduced. If the outstanding shares of Common Stock shall be combined or
reverse-split into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination or reverse-split shall, simultaneously
with the effectiveness of such combination or reverse-split, be proportionately
increased.
(b) If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a change in par value
or a subdivision or combination as provided for in subsection 2(a) above), or
any consolidation or merger of the Company with or into another corporation, or
a transfer of all or substantially all of the assets of the Company, or the
payment of a liquidating distribution, then, as part of any such reorganization,
reclassification, consolidation, merger, sale or liquidating distribution,
lawful provision shall be made so that the Registered Holder of this Warrant
shall have the right thereafter to receive upon the exercise hereof (to the
extent, if any, still exercisable) the kind and amount of shares of stock or
other securities or property which such Registered Holder would have been
entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger, sale or liquidating
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distribution, as the case may be, such Registered Holder had held the number of
shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined by
the Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the Registered Holder of this Warrant such that the provisions set forth in
this Section 2 (including provisions with respect to adjustment of the Exercise
Price) shall thereafter be applicable, as nearly as practicable, in relation to
any shares of stock or other securities or property thereafter deliverable upon
the exercise of this Warrant.
(c) When any adjustment is required to be made in the Exercise
Price, the number of shares of Warrant Stock purchasable 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.
(d) No adjustment in the per share Exercise Price shall be
required unless such adjustment would require an increase or decrease in the
Exercise Price of at least $0.01; provided, however, that any adjustments which
by reason of this paragraph are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 2 shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be. Anything in this Section 2 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
per share Exercise Price, in addition to those required by this Section 2 as in
its discretion it shall deem to be advisable in order that any stock dividend,
subdivision of shares or distribution rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(e) Except as hereinafter provided, in case the Company shall
at any time after the date hereof, but prior to the effective date of the IPO,
issue or sell any shares of Common Stock, including shares held in the Company's
treasury, for a consideration per share less than either the Exercise Price or
the Market Price in effect immediately prior to the issuance or sale of such
shares, or without consideration, then forthwith upon such issuance or sale, the
Exercise Price shall (until another such issuance or sale) be reduced to the
price (calculated to the nearest full cent) equal to the quotient derived by
dividing (i) an amount equal to the sum of (x) the number of shares of Common
Stock outstanding immediately prior to such issuance or sale multiplied by the
lesser of the Exercise Price per share in effect immediately prior to such
issuance or sale or the Market Price in effect on the date immediately prior to
such issuance or sale, plus (y) the aggregate of the amount of all
consideration, if any, received by the Company upon such issuance or sale, by
(ii) the number of shares of Common Stock outstanding immediately after such
issuance or sale; provided, however, that in no event shall the Exercise Price
be adjusted pursuant to this
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computation to an amount in excess of the Exercise Price in effect immediately
prior to such computation.
(f) Upon the happening of any event requiring an adjustment of
the Exercise Price hereunder, the Company shall forthwith give written notice
thereto to the Registered Holder of this Warrant stating the adjusted Exercise
Price and the adjusted number of shares purchasable upon the exercise hereof
resulting from such event and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
(g) For the purposes of any computation to be made in
accordance with Section 2, the following provisions shall be applicable:
(i) Cash Consideration. In case of the issuance or
sale by the Company of shares of Common Stock for a consideration part
or all of which shall be cash, the amount of the cash consideration
therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by
the Company for subscription, the subscription price, or, if either of
such securities shall be sold to underwriters or dealers for public
offering without a subscription offering, the initial public offering
price), before deducting therefrom any compensation paid or discount
allowed in the sale, underwriting or purchase thereof by underwriters
or dealers or others performing similar services, or any expenses
incurred in connection therewith.
(ii) Other Than Cash Consideration. In case of the
issuance or sale (otherwise than as a dividend or other distribution on
any stock of the Company) of shares of Common Stock for a consideration
part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value
of such consideration as determined in good faith by the Board of
Directors of the Company.
(iii) Outstanding Shares. The number of shares of
Common Stock at any one time outstanding shall include the aggregate
number of shares issued or issuable (subject to readjustment upon the
actual issuance thereof) upon the exercise of any and all outstanding
options, rights, warrants to purchase shares of Common Stock and upon
the conversion or exchange of any and all outstanding securities
convertible or exchangeable into shares of Common Stock.
(h) In case the Company shall at any time after the date
hereof issue options, rights or warrants to subscribe for shares of Common
Stock, or issue any securities convertible into or exchangeable for shares of
Common Stock, for a consideration per share less than either the Exercise Price
Per Share or the Market Price in effect immediately prior to the issuance of
such options, rights or warrants, or such convertible or exchangeable
securities, or without consideration, the Exercise Price Per Share in effect
immediately prior to the issuance of such options, rights or
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warrants, or such convertible or exchangeable securities, as the case may be,
shall be reduced to a price determined by making a computation in accordance
with the provisions of this Section 2 hereof, provided that:
(i) The aggregate maximum number of shares of Common
Stock, as the case may be, issuable under such options, rights or
warrants shall be deemed to be issued and outstanding at the time such
options, rights or warrants were issued, and for a consideration equal
to the minimum purchase price per share provided for in such options,
rights or warrants at the time of issuance, plus the consideration, if
any, received by the Company for the issuance of such options, rights
or warrants.
(ii) The aggregate maximum number of shares of Common
Stock issuable upon conversion or exchange of any convertible or
exchangeable securities shall be deemed to be issued and outstanding at
the time of issuance of such securities, and for a consideration equal
to the consideration received by the Company for the issuance of such
securities, plus the minimum consideration, if any, receivable by the
Company upon the conversion or exchange thereof.
(iii) If any change shall occur in the exercise price
per share provided for in any of the options, rights or warrants
referred to in clause (i) of Section 2(h), or in the price per share at
which the securities referred to in clause (ii) of Section 2(h) are
convertible or exchangeable, such options, rights or warrants or
conversion or exchange rights, as the case may be, shall be deemed to
have expired or terminated on the date when such price change became
effective in respect of shares not theretofore issued pursuant to the
exercise or conversion or exchange thereof, and the Company shall be
deemed to have issued upon such date new options, rights or warrants or
convertible or exchangeable securities at the new price in respect of
the number of shares issuable upon the exercise of such options, rights
or warrants or the conversion or exchange of such convertible or
exchangeable securities.
(i) No adjustment of the Exercise Price shall be made:
(i) Upon the issuance or sale of the shares of Common
Stock issuable upon the exercise of (i) the Warrants, (ii) convertible
debt, warrants and options outstanding on the date hereof and described
in the Company's Confidential Private Placement Memorandum, dated
October __ 1996; or (iii) Options granted under the Company's 1996
Stock Option Plan, provided that the exercise price of such options
shall be not less than 85% of the Market Price on the date of grant of
such options.
3. Fractional Shares. The Company shall not be required to issue
certificates representing fractions of shares of Common Stock or Warrants upon
the exercise or transfer of the Purchase Option, nor shall it be required to
issue scrip or pay
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cash in lieu of any fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up to
the nearest whole number of Warrants, shares of Common Stock or other
securities, properties or rights.
4. Limitation on Sales, etc. Each holder of this Warrant acknowledges
that this Warrant and the Warrant Stock have not been registered under the
Securities Act of 1933, as now in force or hereafter amended, or any successor
legislation ("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 (a) an effective registration statement under the
Act as to this Warrant and the Warrant Stock issued upon its exercise and
registration or qualification of this Warrant or such Warrant Stock under any
applicable Blue Sky or state securities law then in effect, or (b) an opinion of
counsel, satisfactory to the Company, that such registration and qualification
are not required.
Without limiting the generality of the foregoing, unless the
offering and sale of the Warrant Stock to be issued upon the exercise of the
Warrant shall have been effectively registered under the Act, the Company shall
be under no obligation to issue the shares covered by such exercise unless and
until the Registered Holder shall have executed an investment letter in form and
substance reasonably satisfactory to the Company, including a warranty at the
time of such exercise that it is acquiring such shares for its own account, for
investment and not with a view to, or for sale in connection with, the
distribution of any such shares, in which event the Registered Holder shall be
bound by the provisions of a legend or legends to such effect which shall be
endorsed upon the certificate(s) representing the Warrant Stock issued pursuant
to such exercise.
5. Certain Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock payable otherwise than in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles) except for a stock dividend payable in shares of Common Stock
("Property Dividend"), then the Company will pay or distribute to the Registered
Holder of this Warrant, upon the exercise hereof, in addition to the Warrant
Stock purchased upon such exercise, the Property Dividend which would have been
paid to such Registered Holder if the Registered Holder had been the owner of
record of such shares of Warrant Stock immediately prior to the date on which a
record is taken for such Property Dividend or, if no record is taken, the date
as of which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
6. Registration Rights of Warrant Holder.
(a) In the event that the Company consummates an IPO with
Xxxxxxx Equities, Inc. or any of its affiliates, then it shall file twelve full
calendar months and one day from the effective date ("Effective Date") of the
IPO a Registration Statement under the Act ("Registration Statement") with the
Securities and Exchange Commission
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registering for resale the Warrants and the underlying shares of Common Stock
("Registrable Securities"). On such occasion, the Company will use its best
efforts to have such registration statement declared effective promptly
thereafter. Should this registration or the effectiveness thereof be delayed by
the Company, the exercisability of the Warrants shall be extended ("Delay
Extension") for a period of time equal to the delay in registering the
Registrable Securities provided, however, that such extension date shall not
extend beyond five years from the Effective Date. Moreover, if the Company fails
to comply with the provisions of this Section 6, the Company shall, in addition
to any other equitable or other relief available to the holders of the Warrants
("Holders"), be liable for any and all incidental, special and consequential
damages sustained by the Holder(s).
(b) In addition to the registration rights granted in
subsection (a) above, the Holders shall have the right until November 30, 2002
to include the Registrable Securities as part of any other registration of
securities filed by the Company (other than in connection with a transaction
contemplated by Rule 145(a) promulgated under the Act or pursuant to Form S-8 or
any equivalent form).
(c) The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, but the Holders shall pay any and all
underwriting commissions and the expenses of any legal counsel selected by the
Holders to represent them in connection with the sale of the Registrable
Securities. The Company agrees to use its best efforts to cause the filing
required herein to become effective promptly and to qualify or register the
Registrable Securities in such States as are reasonably requested by the
Holder(s); provided, however, that in no event shall the Company be required to
register the Registrable Securities in a State in which such registration would
cause (i) the Company to be obligated to register or license to do business in
such State, or (ii) the principal stockholders of the Company to be obligated to
escrow their shares of capital stock of the Company. The Company shall cause any
registration statement filed pursuant to the rights granted under this Section 6
to remain effective until the earliest of (i) November 30, 2003, (ii) the date
by which all of the Registrable Securities have been sold pursuant to the
registration statement, or (iii) the date by which all of the Registrable
Securities are eligible for resale without restriction pursuant to Rule 144(K)
promulgated under the Act.
(d) The Company shall indemnify the Holder(s) of the
Registrable Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such Holders within the meaning
of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of
1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or
liability (including all reasonable attorneys' fees and other expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act, the Exchange
Act or otherwise, arising from such registration statement. The Holder(s) of the
Registrable Securities to be sold pursuant to such registration statement, and
their successors and assigns, shall severally, and not jointly, indemnify the
Company,
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against all loss, claim, damage, expense or liability (including all reasonable
attorneys' fees and other expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, in
writing, for specific inclusion in such registration statement.
(e) Nothing contained in this Warrant shall be construed as
requiring the Holder(s) to exercise their Warrants prior to or after the initial
filing of any registration statement or the effectiveness thereof.
(f) The Company shall furnish to each Holder participating in
any of the foregoing offerings and to each underwriter of any such offering, if
any, a signed counterpart, addressed to such Holder or underwriter, of (i) an
opinion of counsel to the Company, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
an opinion dated the date of the closing under any underwriting agreement
related thereto), and (ii) a "cold comfort" letter dated the effective date of
such registration statement (and, if such registration includes an underwritten
public offering, a letter dated the date of the closing under the underwriting
agreement) signed by the independent public accountants who have issued a report
on the Company's financial statements included in such registration statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
such accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to each Holder
participating in the offering requesting the correspondence and memoranda
described below and to the managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with respect
to the registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. ("NASD"). Such investigation shall
include access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as any such Holder
shall reasonably request.
(g) The Company shall enter into an underwriting agreement
with the managing underwriter(s) selected by a majority of Holders whose
Registrable Securities are being registered pursuant to this Section 6(a). Such
agreement shall be reasonably satisfactory in form and substance to the Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the
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Company and such other terms as are customarily contained in agreements of that
type used by the managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the underwriters except as they may relate to
such Holders, their shares and their intended methods of distribution.
(h) Each of the Holder(s) participating in any of the
foregoing offerings shall furnish to the Company a completed and executed
questionnaire provided by the Company requesting information customarily sought
of selling securityholders.
7. Redemption of Warrants by the Company.
(a) Redemption. If an IPO has not been consummated by May 30,
1997, the Warrants may be redeemed, at the option of the Company, as a whole at
any time prior to the Expiration Date, at the executive office of the Company,
upon the notice referred to in Section 7(b) at the price of $.25 per Warrant
("Redemption Price"), provided that (i) the Warrants and the underlying Common
Stock are registered on Form XX-0, X-0 or other form of registration statement
used by the Company, and (ii) the Class A and Class B Promissory Notes have been
paid in full.
(b) Date Fixed for and Notice of Redemption. Notice of
redemption shall be mailed by first class mail, postage prepaid, by the Company
or the Company's agent at its discretion not less than 30 days from the date
fixed for redemption to the Registered Holders of the Warrants to be redeemed at
their last address as they shall appear on the registration books. Any notice
mailed in the manner herein provided shall be conclusively presumed to have been
duly given whether or not the registered holder received such notice.
(c) Exercise After Notice of Redemption. The Warrants may be
exercised in accordance with Section 1 of this Agreement at any time after
notice of redemption shall have been given to the Company pursuant to Section
7(b) hereof and prior to the date fixed for redemption. On and after the
redemption date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
8. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of its
Common Stock (or other securities at the time issuable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution (other than a dividend or distribution payable solely in
capital stock of the Company or out of
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funds legally available therefor), or to receive any 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 capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the surviving entity), or any
transfer of all or substantially all of the assets 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, consolidation, merger,
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 Common Stock (or
such other stock or securities as are at the time issuable upon the exercise of
this Warrant) shall be entitled to exchange their shares of Common Stock (or
such other stock or securities) for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be mailed at least ten
(10) days prior to the record date or effective date, for the event specified in
such notice, provided that the failure to mail such notice shall not affect the
legality or validity of any such action.
9. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Warrant Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
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. Transfers, etc. The Company will maintain a register containing the
names and addresses of the Registered Holders of this Warrant and of the holders
of other warrants of like tenor issued simultaneously hereunder. Any Registered
Holder may change its, his or her address as shown on the warrant register by
written notice to the Company requesting such change.
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 and when this Warrant
is properly assigned
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in blank, the Company may (but shall not be obligated to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
12. Mailing of Notices, etc. All notices and other communications from
the Company to the Registered Holder of this Warrant shall be mailed by
first-class certified or registered mail, postage prepaid, sent by reputable
overnight delivery or by facsimile to the address furnished to the Company in
writing by the last Registered Holder of this Warrant who shall have furnished
an address to the Company in writing. All notices and other communications from
the Registered Holder of this Warrant or in connection herewith to the Company
shall be mailed by first-class certified or registered mail, postage prepaid,
sent by reputable overnight delivery or by facsimile to the Company at its
offices at, 0 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxxxxxxx 00000 or such other address
as the Company shall so notify the Registered Holder.
13. No Rights as Stockholders. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
14. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against whom enforcement of
the change or waiver is sought.
15. Headings. The headings of 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 will be governed by and construed in
accordance with the law of the State of New York without regard to the
principles of conflict of law.
17. Venue. The Company (a) agrees that any legal suit, action or
proceeding arising out of or relating to this Warrant shall be instituted
exclusively in New York State Supreme Court, County of New York or in the United
States District Court for the Southern District of New York, (b) waives any
objection to the venue of any such suit, action or proceeding and the right to
assert that such forum is not a convenient forum, and (c) irrevocably consents
to the jurisdiction of the New York State Supreme Court, County of New York, and
the United States District Court for the Southern District of New York in any
such suit, action or proceeding. The Company further agrees to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in the New York State Supreme Court, County of New York, or
in the United States District Court for the Southern District of New York and
agrees that service of process upon it mailed by certified mail to its address
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding.
Dated: __________, 1996 AUGMENT SYSTEMS, INC.
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By:
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Xxxxx X. Xxxx, Chief Financial Officer
-13-
EXHIBIT I
PURCHASE FORM
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To: AUGMENT SYSTEMS, INC.
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Dated:
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In accordance with the provisions set forth in the attached Warrant
(No. __), the undersigned hereby irrevocably elects to purchase ________ shares
of the Common Stock covered by such Warrant and herewith makes payment of
$_______, representing the full Exercise Price for such shares at the price per
share provided for in such Warrant.
or
The undersigned hereby elects irrevocably to exercise the within
Purchase Option and to purchase _________ shares of Common Stock of Augment
Systems, Inc. by surrender of the unexercised portion of the within Purchase
Option (with a "Value" of $__________ based on a "Market Price" of
$___________).
The undersigned has had the opportunity to ask questions of and receive
answers from the officers of the Company regarding the affairs of the Company
and related matters, and has had the opportunity to obtain additional
information necessary to verify the accuracy of all information so obtained.
The undersigned understands that the shares have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
other jurisdiction, and hereby represents to the Company that the undersigned is
acquiring the shares for its own account, for investment, and not with a view
to, or for sale in connection with, the distribution of any such shares.
Signature
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Address
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