Exhibit 10.35
THIS WARRANT HAS NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY BE TRANSFERRED ON THE
BOOKS OF THE COMPANY, WITHOUT REGISTRATION UNDER ALL APPLICABLE UNITED STATES
FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION
THEREFROM, SUCH COMPLIANCE AT THE OPTION OF THE COMPANY TO BE EVIDENCED BY AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT NO VIOLATION OF SUCH
REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT.
COMMON STOCK PURCHASE WARRANT
Warrant No. W-2
PSW TECHNOLOGIES, INC.
Void after October 1, 2006
1. ISSUANCE. This Warrant is issued to Xxxxxxx Xxxxxxx ("Xxxxxxx"), by
PSW Technologies, Inc., a Delaware corporation (hereinafter with its successors
called the "Company").
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the "Holder"),
commencing on October 2, 1996, is entitled upon surrender of this Warrant with
the subscription form annexed hereto duly executed, at the office of the
Company, currently located at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000,
Xxxxxx, Xxxxx 00000, or such other office as the Company shall notify the Holder
of in writing, to purchase from the Company fully paid and nonassessable shares
of Common Stock, $.01 par value, of the Company (the "Common Stock") in the
amount designated and at a price per share (the "Purchase Price") as specified
on SCHEDULE A attached hereto.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) in cash
or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the
Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond
in writing to an inquiry by the Holder as to the fair market value of any
securities the Holder may wish to deliver to the Company pursuant to clause
(iii) above.
4. NET ISSUE ELECTION. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Holder such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to this
Section 4.
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Section 4.
A = the fair market value of one share of Common Stock, as determined
in good faith by the Board, as at the time the net issue election
is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time the
net issue election is made pursuant to this Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
7. EXPIRATION DATE. This Warrant shall expire upon occurrence of the
earliest to occur of (a) 5:00 p.m. Eastern Time on October 1, 2006.
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8. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that such shares as may be
issued pursuant to such exercise and conversion will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
9. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant in its entirety, the Holder would, except as provided in this Section 9,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
10. NOTICES OF RECORD DATE, ETC. In the event of:
10.1 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 or other distribution, or any
right to subscribe for, purchase or otherwise acquire any shares of
stock of any class or any other securities or property, or to receive
any other right,
10.2 any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger
involving the Company, or sale or conveyance of all or substantially
all of its assets, or
10.3 any voluntary or involuntary dissolution, liquidation or
winding-up of the Company
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such 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 date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, 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 in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
11. REPRESENTATIONS OF THE COMPANY. The Company has all necessary power
and authority, and has taken all action required to execute, deliver and perform
this Warrant, and to issue, sell and deliver the Common Stock issuable upon
surrender of this Warrant. This Warrant and all other documents and instruments
executed by the Company pursuant hereto, when delivered, are and will be duly
authorized, valid and binding obligations of the
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Company, enforceable against the Company, in accordance with their respective
terms, subject to laws of general application relating to bankruptcy, insolvency
and relief of debtors; equitable principles limiting rights to specific
performance.
12. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the holders of Warrants
representing at least two-thirds of the number of shares of Common Stock then
issuable upon the exercise of the Warrants. No such amendment, modification or
waiver shall be effective as to this Warrant unless the terms of such amendment,
modification or waiver shall apply with the same force and effect to all of the
other Warrants then outstanding.
13. WARRANT REGISTER; TRANSFER, ETC.
A. The Company will maintain a register containing the names and
addresses of the registered holders of the Warrants. The Holder may
change its address as shown on the warrant register by written notice
to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be
given by certified mail or delivered to the Holder at its address as
shown on the warrant register.
B. Subject to compliance with applicable federal and state
securities laws, this Warrant may be transferred by the Holder,
PROVIDED that such transferee provide the Company with such
representations as the Company may reasonably require in order to
comply with applicable United States federal and state securities
laws. Upon surrender of this Warrant to the Company, together with
the assignment hereof properly endorsed, for transfer of this Warrant
as an entirety by the Holder, the Company shall issue a new warrant of
the same denomination to the assignee. Upon surrender of this Warrant
to the Company, together with the assignment hereof properly endorsed,
by the Holder for transfer with respect to a portion of the shares of
Common Stock purchasable hereunder, the Company shall issue a new
warrant to the assignee, in such denomination as shall be requested by
the Holder hereof, and shall issue to such Holder a new warrant
covering the number of shares in respect of which this Warrant shall
not have been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for
and upon surrender and cancellation of any mutilated Warrant, or (ii)
in lieu of any reasonably satisfactory to the Company of the loss,
theft or destruction of such Warrant (including a reasonably detailed
affidavit with respect to the circumstances of any loss, theft or
destruction) and of
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indemnity reasonably satisfactory to the Company, provided, however, that
so long as Xxxxxxx is the registered holder of this Warrant, no indemnity
shall be required other than its written agreement to indemnify the Company
against any loss arising from the issuance of such new warrant.
14. NO IMPAIRMENT. The Company will not, by amendment of its Certificate
of Incorporation or through any reclassification, capital reorganization,
consolidation, merger, sale or conveyance of assets, dissolution, liquidation,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder.
15. GOVERNING LAW. The Provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
New York.
16. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
17. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday, then such action may be taken or right
may be exercised on the next succeeding day which is not a Saturday or Sunday or
such a legal holiday.
Dated: October 2, 1996 PSW TECHNOLOGIES, INC.
________________________________________
(Corporate Seal) By: ____________________________________
Title: _________________________________
Attest:
_______________________
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SUBSCRIPTION
To:____________________________ Date:_________________________
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
_____________________________
Signature
_____________________________
Name for Registration
_____________________________
Mailing Address
NET ISSUE ELECTION NOTICE
To:____________________________ Date:_________________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase _____ shares of Common Stock pursuant to this Warrant. The
certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
_____________________________
Signature
_____________________________
Name for Registration
_____________________________
Mailing Address
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ASSIGNMENT
For value received __________________________________________ hereby sells,
assigns and transfers unto ___________________________________________
______________________________________________________________________________
Please print or typewrite name and address of Assignee
______________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_____________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:_________________________
_________________________________
In the Presence of:
_______________________________
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SCHEDULE A
NUMBER OF SHARES 31.50
EXERCISE PRICE $276.9231
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