THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
No. _____ Void After ___________, 2002
Date: ______________, 1997
NEWGEN RESULTS CORPORATION
WARRANT TO PURCHASE COMMON STOCK
This Warrant is issued to _________________ (the "Holder") by Newgen
Results Corporation, a California corporation (the "Company") for consideration
in the amount of $0.01 per share.
1. PURCHASE OF SHARES. Subject to the terms and conditions hereinafter
set forth, the Holder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall
notify the Holder hereof in writing), to purchase ______________ shares of
Common Stock of the Company (the "Common Stock"). The purchase price shall be
$0.75 per share, subject to adjustment as provided herein (the "Exercise
Price"). The number of shares of Common Stock issuable pursuant to this Section
1 (the "Warrant Shares") shall be subject to adjustment as provided herein.
This Warrant is one of a series of warrants issued as of even date herewith.
2. EXERCISE PERIOD. Except as otherwise provided herein, this Warrant is
exercisable only until and including the fifth anniversary of the date hereof at
5:00 p.m. (California Time) (the "Exercise Period").
3. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with Section 2 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed copy
of the form of subscription attached hereto, to the Secretary of the Company at
its principal offices; and
(b) the payment to the Company of an amount equal to the aggregate
Exercise Price for the number of Warrant Shares being purchased.
4. NET ISSUE EXERCISE.
(a) In lieu of exercising this Warrant by payment of cash, Holder may
elect to receive shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event the Company
shall issue to 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 Holder.
Y= The number of shares of Warrant Shares.
A= The fair market value of one share of the Common Stock to be
issued upon exercise of this Warrant.
B= The Exercise Price (as adjusted to the date of such
calculations).
(b) If upon the expiration of the Exercise Period Holder has not
exercised this Warrant, this Warrant shall automatically convert into the number
of shares of Common Stock calculated pursuant to Section 4(a) above, provided
that the Holder is able to and does make the representations set forth in
Section 9 hereof and agrees to be bound by the provisions of Sections 9 and 14
hereof.
(c) For purposes of this Section, the Board of Directors of the
Company shall determine the fair market value of the Common Stock in its good
faith.
5. CERTIFICATES FOR WARRANT SHARES. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number of
Warrant Shares so purchased shall be issued as soon as practicable thereafter,
and in any event within thirty (30) days of the receipt of the subscription
notice.
6. RESERVATION OF WARRANT SHARES. The Company covenants that it will at
all times keep available such number of authorized shares of its Common Stock
issuable upon exercise of this Warrant free from all preemptive rights with
respect thereto, which will be sufficient to permit the exercise of this Warrant
for the full number of Warrant Shares specified herein. The Company further
covenants that such Warrant Shares, when issued pursuant to the exercise of this
Warrant, will be duly and validly
2.
issued, fully paid and nonassessable and free from all taxes, liens, and
charges with respect to the issuance thereof.
7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. If the
Company shall at any time prior to the expiration of this Warrant, subdivide its
capital stock by split or otherwise, or combine its capital stock, or issue
additional securities as a dividend with respect to any shares of its capital
stock, the number of Warrant Shares issuable on the exercise of this Warrant
shall forthwith be proportionately increased in the case of a subdivision or
stock dividend, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the Exercise Price payable per
share, but the aggregate purchase price payable for the total number of Warrant
Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 7 shall become effective at the close of business
on the date the subdivision or combination becomes effective, or as of the
record date of such dividend, or in the event that no record date is fixed, upon
the making of such dividend. When any such adjustment is required to be made,
the Company shall promptly notify the Holder of such event and of the number of
shares, the adjusted Exercise Price and the type of securities or property
thereafter purchasable upon exercise of the Warrant.
8. EARLY TERMINATION IN THE EVENT OF MERGER, ETC. In the event of, at
any time during the Exercise Period, an initial public offering of securities of
the Company registered under the Act, or any capital reorganization, or any
reclassification of the capital stock 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 or combination of shares), or
the consolidation or merger of the Company with or into another corporation, 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, the Company shall
provide to the Holder fifteen (15) days advance written notice of such public
offering, reorganization, reclassification, consolidation, merger or sale or
other disposition of the Company's assets, during which period the Holder may
purchase any and all shares then available for purchase. This Warrant shall
terminate unless exercised prior to the date the registration statement related
to such public offering is declared effective or the closing of such
reorganization, reclassification, consolidation, merger or sale or other
disposition of the Company's assets.
9. REPRESENTATIONS OF HOLDER.
9.1 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 Warrant Shares is being acquired for,
and will be held for, its account only.
3.
9.2 SECURITIES ARE NOT REGISTERED.
(a) The Holder understands that this Warrant has not been registered
under the Securities Act of 1933, as amended (the "Act"), on the basis that no
distribution or public offering of the stock of the Company is to be effected.
The Holder realizes that the basis for the exemption may not be present if,
notwithstanding its representations, it has in mind merely acquiring the
securities for a fixed or determinable period in the future, or for a market
rise, or for sale if the market does not rise. The Holder has no such
intention.
(b) The Holder recognizes that this Warrant and Warrant Shares being
acquired by it must be held indefinitely unless they are subsequently registered
under the Act or an exemption from such registration is available. The Holder
recognizes that the Company does not have any obligation to register this
Warrant or the Warrant Shares or to comply with any exemption from such
registration.
(c) The Holder is aware that neither this Warrant nor the Warrant
Shares may be sold pursuant to Rule 144 adopted under the Act unless certain
conditions are met and until the Holder has held the Warrant Shares for at least
one year. Among the conditions for use of Rule 144 is the availability of
current information to the public about the Company. The Holder understands
that the Company has not made such information available and has no present
plans to do so.
9.3 The Holder represents and warrants that it is an "accredited investor"
as such term is defined in Rule 501(a) under the Act. Specifically, the Holder
represents and warrants that it is either a corporation or partnership, not
formed for the specific purpose of acquiring securities of the Company, with
total assets in excess of $5,000,000.
9.4 DISPOSITION OF WARRANT AND WARRANT SHARES.
(a) The Holder further agrees not to make any disposition of all or
any part of this Warrant or the Warrant Shares in any event unless and until:
(i) The Company shall have received a letter secured by the
Holder from the Securities and Exchange Commission stating that no action will
be recommended to the Commission with respect to the proposed disposition; or
(ii) There is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with said registration statement; or
(iii) The Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, the Holder shall have
furnished the
4.
Company with an opinion of counsel for the Holder to the effect that such
disposition will not require registration of such Warrant or shares under the
Act, and such opinion of counsel for the Holder shall have been concurred in
by the Company's counsel and the Company shall advise the Holder of such
concurrence.
(iv) Notwithstanding the provisions of paragraphs (i), (ii) and
(iii) above, no such Securities and Exchange Commission letter, registration
statement or opinion of counsel shall be required (i) for any transfer of this
Warrant or any shares issuable upon exercise of this Warrant in compliance with
SEC Rule 144 or 144A, or (ii) for any transfer of this Warrant or shares
issuable upon exercise of this Warrant by a Holder that is a partnership or a
corporation to (A) a partner of such partnership or shareholder or affiliate of
such corporation, (B) a retired partner or shareholder, or (iii) for the
transfer by gift, will or intestate succession by any Holder to his or her
spouse or lineal descendants or ancestors or any trust for any of the foregoing.
(b) The Holder understands and agrees that all certificates
evidencing the shares to be issued to Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
10. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price of this Warrant then in
effect.
11. ISSUE TAX. The issuance of certificates for shares of Common Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than that of the then
Holder of the Warrant being exercised.
12. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the Holder
shall not be entitled to any rights of a stockholder with respect to the Warrant
Shares, including (without limitation) the right to vote such Warrant Shares,
receive dividends or other distributions thereon, exercise preemptive rights or
be notified of stockholder
5.
meetings, and such Holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company.
13. LOSS OR DESTRUCTION OF WARRANT. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of such loss, theft or destruction
of this Warrant, on delivery of indemnity reasonably satisfactory to the Company
or, in the case of mutilation, on surrender and cancellation of the Warrant, the
Company at its expense will execute and deliver to the Holder, in lieu thereof,
a new Warrant of like tenor and denomination.
14. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that it shall
not, to the extent requested by the Company or an underwriter of securities of
the Company, sell or otherwise transfer or dispose of any Common Stock or other
shares of stock of the Company then owned by such Holder (other than to donees
or partners of the Holder who agree to be similarly bound) for up to 180 days
following the effective date of a registration statement of the Company filed
under the Act; PROVIDED HOWEVER, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers securities to be sold on its
behalf to the public in an underwritten offering but not to securities sold
pursuant to such registration statement; and
(b) all executive officers, directors and holders of at least one
percent (1%) of the Company's then outstanding voting securities enter into
similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the shares
subject to this Section and to impose stop transfer instructions with respect to
the Common Stock and such other shares of stock of each Holder (and the shares
or securities of every other person subject to the foregoing restriction) until
the end of such period.
15. SUCCESSORS AND ASSIGNS.
(a) The terms and provisions of this Warrant shall inure to the benefit
of, and be binding upon, the Company and the Holders and their respective
successors and assigns.
(b) A Holder may transfer in whole or in part the purchase rights
evidenced hereby to any third party to whom such rights may be transferred
without registration or qualification under federal or state securities laws,
provided: (a) the transferee or assignee receives a Warrant to purchase at
least twenty percent (20%) of the Warrant Shares; (b) the Company is, within a
reasonable time after such transfer or assignment,
6.
furnished with written notice of the name and address of such transferee or
assignee; (c) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Warrant; and (d) the
transferor shall have delivered to the Company, if reasonably requested by
counsel to the Company, an opinion of counsel substantially to the effect
that the transfer or assignment can be effected without registration or
qualification under applicable federal or state securities laws.
16. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holder.
17. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of California as applied to agreements among California residents made and
to be performed entirely within the State of California.
[THIS SPACE INTENTIONALLY LEFT BLANK]
7.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
as of the date first written above.
NEWGEN RESULTS CORPORATION
By: ___________________________
Xxx Xxxxxx, Vice President
ACKNOWLEDGED AND AGREED:
________________________
By: _______________________________
_______________________________
WARRANT TO PURCHASE COMMON STOCK
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: NEWGEN RESULTS CORPORATION
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder:
CHECK ONE BOX ONLY
/ / 1. _________________________ (______) (1) shares of Common Stock of
Newgen Results Corporation and herewith makes payment of
________________________ Dollars ($______) therefor; OR
/ / 2. The number of shares of Common Stock of Newgen Results
Corporation issuable pursuant to Section 4 of the within Warrant upon
cancellation of the right to exercise ____________(1) shares of Common
Stock of Newgen Results Corporation under the within Warrant, which
cancellation shall hereby occur.
The Undersigned requests that the certificates for such shares be issued in
the name of, and delivered to, ____________________________________, whose
address is _________________________________________________.
The Undersigned (i) makes, as of the date hereof, the representations set
forth in Section 9 of the within Warrant with respect to the shares of Common
Stock acquired hereby and (ii) agrees to be bound by the provisions of Sections
9 and 14 of the within Warrant.
DATED: _______________ ______________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
______________
(1) Insert here the number of shares called for on the face of the Warrant (or,
in the case of a partial exercise, the portion thereof as to which the Warrant
is being exercised), in either case without making any adjustment for additional
Common Stock or any other stock or other securities or property or cash which,
pursuant to Section 7 of the Warrant, may be deliverable upon exercise.
