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EXHIBIT 4.3
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
STARBASE CORPORATION
FORM OF COMMON STOCK PURCHASE WARRANT
No. 2000-CMN-___ September 5, 2000
Warrant to Purchase _________
Shares of Common Stock
STARBASE CORPORATION, a Delaware corporation (the "Company"), for value
received, hereby certifies that [name of warrant holder], or registered assigns
(the "Holder"), is entitled to purchase from the Company _________ (the "Warrant
Shares") duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"), at
a purchase price equal to $6.8125 per share (the "Purchase Price"), at any time
or from time to time on and after the date hereof and prior to 5:00 P.M., New
York City time, on September 5, 2003 (the "Expiration Date"), all subject to the
terms, conditions and adjustments set forth below in this Warrant.
This warrant (the "Warrant" and, together with any warrants issued in
substitution therefor, the "Warrants") is issued pursuant to the Letter
Agreement, dated as of June 20, 2000, between the Company and [Name of warrant
holder].
1. Definitions. As used herein, unless the context otherwise requires, the
following terms shall have the meanings indicated:
"Additional Shares of Common Stock" shall mean, all shares (including
treasury shares) of Common Stock issued or sold (or, pursuant to Section 3.3 or
3.4, deemed to be issued) by the Company after the date hereof, whether or not
subsequently reacquired or retired by the Company.
"Business Day" shall mean any day other than a Saturday or a Sunday or a
day on which commercial banking institutions in the City of New York are
authorized by law to be closed. Any reference to "days" (unless Business Days
are specified) shall mean calendar days.
"Buy in Actual Damages" shall have the meaning assigned to it in Section
2.5 of this Warrant.
"Closing Bid Price" shall mean for any security as of any date, the closing
bid price of such security on the principal securities exchange or trade market
where such security is listed or traded as reported by Bloomberg, L.P.
("Bloomberg"), or if the foregoing does not apply, the closing bid price of such
security in the over-the-counter market on the electronic bulletin board for
such security as reported by Bloomberg, or, if no closing bid price is reported
for such security by Bloomberg, the average of the bid prices of any market
makers for such security as reported in the "pink sheets" by the National
Quotation
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Bureau, Inc. If the Closing Bid Price cannot be calculated for such security on
such date, as set forth above, the Closing Bid Price of such security shall be
the fair market value as determined in good faith by an investment banking firm
selected jointly by the Company and the Holders, with the fees and expenses of
such determination borne solely by the Company.
"Common Stock" shall have the meaning assigned to it in the introduction to
this Warrant, such term to include any stock into which such Common Stock shall
have been changed or any stock resulting from any reclassification of such
Common Stock, and all other stock of any class or classes (however designated)
of the Company the holders of which have the right, without limitation as to
amount, either to all or to a share of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference.
"Company" shall have the meaning assigned to it in the introduction to this
Warrant, such term to include any corporation or other entity which shall
succeed to or assume the obligations of the Company hereunder in compliance with
Section 4.
"Current Market Price" shall mean, on any date specified herein, the
average of the daily Closing Bid Prices for the Common Stock during the 10
consecutive trading days commencing 15 trading days before such date, except
that, if on any such date the shares of Common Stock are not listed or admitted
for trading on any national securities exchange or quoted in the
over-the-counter market, the Current Market Price shall be the Fair Value on
such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder, or any successor
statute.
"Expiration Date" shall have the meaning assigned to it in the introduction
to this Warrant.
"Fair Value" shall mean, on any date specified herein (i) in the case of
cash, the dollar amount thereof, (ii) in the case of a security admitted for
trading on any national securities exchange or quoted in the over-the-counter
market, the Current Market Price, and (iii) in all other cases as determined in
good faith jointly by the Board of Directors of the Company and the Holder;
provided, however, that if such parties are unable to reach agreement within a
reasonable period of time, the Fair Value shall be determined in good faith by
an independent investment banking firm selected jointly by the Company and the
Holder or, if that selection cannot be made within ten days, by an independent
investment banking firm selected by the American Arbitration Association in
accordance with its rules, and provided further, that the Company and Holder
shall each pay one-half of all of the fees and expenses of any third parties
incurred in connection with determining the Fair Value.
"Other Securities" shall mean any stock (other than Common Stock) and other
securities of the Company or any other Person (corporate or otherwise) which the
holders of the Warrants at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 4 or otherwise.
"Person" shall mean any individual, firm, partnership, corporation, trust,
joint venture, association, joint stock company, limited liability company,
unincorporated organization or any other entity or organization, including a
government or agency or political subdivision thereof, and shall include any
successor (by merger or otherwise) of such entity.
"Purchase Price" shall mean the amount per share indicated in the
introductory paragraph to this Warrant subject to adjustment and readjustment
from time to time as provided in Section 3, and, as so adjusted or readjusted,
shall remain in effect until a further adjustment or readjustment thereof is
required by Section 3.
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"Registration Rights Agreement" shall mean the Registration Rights
Agreement, between the Company and the Holder, dated as of September 5, 2000.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations thereunder, or any successor
statute.
"Warrants" shall have the meaning assigned to it in the introduction to
this Warrant.
2. Exercise of Warrant.
2.1. Manner of Exercise; Payment of the Purchase Price. (a) This Warrant
may be exercised by the Holder, in whole or in part, at any time or from time to
time on and after the date hereof and prior to the Expiration Date, by
surrendering to the Company at its principal office (or such other office or
agency of the Company as the Company may designate in a written notice to the
Holder) this Warrant, together with the form of Election to Purchase Shares
attached hereto as Exhibit A (or a reasonable facsimile thereof) duly executed
by the Holder and accompanied by payment of the Purchase Price as described
below for the number of shares of Common Stock specified in such form.
(b) Payment of the Purchase Price shall be made in United States currency
by cash or delivery of a certified check or bank draft payable to the order of
the Company or by wire transfer to the account of the Company.
2.2. When Exercise Effective. Each exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the Business
Day on which this Warrant shall have been surrendered to, and the Purchase Price
shall have been received by, the Company as provided in Section 2.1, and at such
time the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock (or Other Securities) shall be issuable
upon such exercise as provided in Section 2.3 shall be deemed to have become the
holder or holders of record thereof for all purposes.
2.3. Delivery of Stock Certificates, etc.; Charges, Taxes and Expenses.
Subject to Section 2.5 (a) as soon as practicable after each exercise of this
Warrant, in whole or in part, and in any event within three Business Days
thereafter, the Company shall cause to be issued in such denominations as may be
requested by Holder in the Election to Purchase Shares, in the name of and
delivered to the Holder or, as the Holder may direct,
(i) a certificate or certificates, or, if then permissible under the
Securities Act, at a Holder's request to electronically issue such shares
(e.g., through DWAC or DTC), an electronic issuance for the number of shares
of Common Stock (or Other Securities) to which the Holder shall be entitled
upon such exercise plus, in lieu of issuance of any fractional share to which
the Holder would otherwise be entitled, if any, a certified check for the
amount of cash equal to the same fraction multiplied by the Current Market
Price per share on the date of Warrant exercise, provided, however, that in
the event sufficient funds are not legally available for the payment of such
amount, the number of shares of Common Stock for which such certificate(s)
represents shall be rounded up to the nearest whole number, and
(ii) in case such exercise is for less than all of the shares of Common
Stock purchasable under this Warrant, a new Warrant or Warrants of like tenor,
for the balance of the shares of Common Stock purchasable hereunder.
(b) Issuance of certificates for shares of Common Stock upon the exercise
of this Warrant shall be made without charge to the Holder hereof for any issue
or transfer tax or other incidental expense, in respect of the issuance of such
certificates, all of which such taxes and expenses shall be paid by the Company.
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2.4. Exercise Disputes. In the case of any dispute with respect to the
number of shares to be issued upon exercise of this Warrant, the Company shall
promptly issue such number of shares of Common Stock that is not disputed and
shall submit the disputed determinations or arithmetic calculations to the
Holder via facsimile within two (2) Business Days of receipt of the Holder's
Election to Purchase Shares. If the Holder and the Company are unable to agree
as to the determination of the Purchase Price within two (2) Business Days of
such disputed determination or arithmetic calculation being submitted to the
Holder, then the Company shall in accordance with this Section, submit via
facsimile the disputed determination to an independent reputable accounting firm
of national standing, selected jointly by the Company and the Holder. The
Company shall cause such accounting firm to perform the determinations or
calculations and notify the Company and the Holder of the results within
forty-eight (48) hours from the time it receives the disputed determinations of
calculations. Such accounting firm's determination shall be binding upon all
parties absent manifest error. The Company shall then on the next Business Day
issue certificate(s) representing the appropriate number of shares of Common
Stock in accordance with such accounting firm's determination and this Section.
The prevailing party shall be entitled to reimbursement of all fees and expenses
of such determination and calculation.
2.5. Failure to Deliver Common Stock If, at any time, the Holder of this
Warrant submits this Warrant, an Election to Purchase Shares and payment to the
Company of the Purchase Price for each of the shares of Common Stock specified
in the Election to Purchase Shares in accordance with Section 2.1 above, and the
Company, for any reason, fails to deliver, on or prior to the last possible date
which the Company could have issued such Common Stock to the Holder without
violating this Section 2, the number of shares of Common Stock for which the
Holder is entitled upon such exercise, the Company shall pay damages to the
Holder equal to the greater of (a) actual damages incurred by the Holder as a
result of the Holder's needing to "buy in" shares of Common Stock to the extent
necessary to satisfy its securities delivery requirements ("Buy In Actual
Damages") and (b) if the Company fails to deliver such certificates within five
days after the last possible date on which the Company could have issued such
Common Stock to the Holder without violating this Section 2, on each date such
exercise is not timely effected in an amount equal to 1% of the product of (i)
the number of shares of Common Stock not issued to the Holder on a timely basis
and to which the Holder is entitled and (ii) the Closing Bid Price of the Common
Stock on the last possible date which the Company could have issued such Common
Stock to the Holder without violating this Section 2.
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3. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
3.1. Adjustment of Number of Shares.
Upon each adjustment of the Purchase Price as a result of the
calculations made in this Section 3, this Warrant shall thereafter evidence the
right to receive, at the adjusted Purchase Price, that number of shares of
Common Stock (calculated to the nearest one-hundredth) obtained by dividing (i)
the product of the aggregate number of shares covered by this Warrant
immediately prior to such adjustment and the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price by (ii) the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
3.2. Treatment of Stock Dividends, Stock Splits, etc. In case the Company
at any time or from time to time after the date hereof shall declare or pay any
dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective. Additional Shares of Common Stock deemed to have been issued pursuant
to this Section 3.2, relating to stock dividends, stock splits, etc., shall be
deemed to have been issued for no consideration , and in each such case, the
Purchase Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest .01 of a cent) determined by multiplying such
Purchase Price by a fraction
(i) the numerator of which shall be the sum of (1) the number of
shares of Common Stock outstanding immediately prior to such issue and (2) the
number of shares of Common Stock which the aggregate consideration received by
the Company for the total number of such Additional Shares of Common Stock so
issued would purchase at the Closing Bid Price, and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such issue or sale, provided, however, that,
for the purposes of this Section 3.2, (X) immediately after any Additional
Shares of Common Stock are deemed to have been issued pursuant to Section 3.2,
such Additional Shares shall be deemed to be outstanding, and (Y) treasury
shares shall not be deemed to be outstanding.
3.3. Adjustments for Combinations, etc. In case the outstanding shares of
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Purchase Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
4. Consolidation, Merger, etc.
4.1. Adjustments for Consolidation, Merger, Sale of Assets, Reorganization,
etc. In case the Company after the date hereof (a) shall consolidate with or
merge into any other Person and shall not be the continuing or surviving
corporation of such consolidation or merger, or (b) shall permit any other
Person to consolidate with or merge into the Company and the Company shall be
the continuing or surviving Person but, in connection with such consolidation or
merger, the Common Stock or Other Securities shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
or (c) shall transfer all or substantially all of its properties or assets to
any other Person, or (d) shall effect a capital reorganization or
reclassification of the Common Stock or Other Securities, then, and in the case
of each such transaction, proper provision shall be made so that, upon the basis
and the terms and in the manner provided in this Warrant, the Holder of this
Warrant, upon the exercise hereof at any time after the consummation of such
transaction shall be entitled to receive (at the aggregate Purchase Price in
effect at the time of such consummation for all Common Stock or Other Securities
issuable upon such exercise immediately prior to such consummation), in lieu of
the Common Stock or Other Securities
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issuable upon such exercise prior to such consummation, the amount of
securities, cash or other property to which such Holder would actually have been
entitled as a stockholder upon such consummation if such Holder had exercised
this Warrant immediately prior thereto, subject to adjustments (subsequent to
such consummation) as nearly equivalent as possible to the adjustments provided
for in Sections 3 through 5.
4.2. Assumption of Obligations. Notwithstanding anything contained in this
Warrant or in the Letter Agreement to the contrary, the Company shall not effect
any of the transactions described in clauses (a) through (d) of Section 4.1
unless, prior to the consummation thereof, each Person (other than the Company)
which may be required to deliver any stock, securities, cash or property upon
the exercise of this Warrant as provided herein shall assume, by written
instrument, (a) the obligations of the Company under this Warrant (and if the
Company shall survive the consummation of such transaction, such assumption
shall be in addition to, and shall not release the Company from, any continuing
obligations of the Company under this Warrant), and (b) the obligation to
deliver to the Holder such shares of stock, securities, cash or property as, in
accordance with the foregoing provisions of this Section 4, the Holder may be
entitled to receive. Nothing in this Section 4 shall be deemed to authorize the
Company to enter into any transaction not otherwise permitted by the Letter
Agreement.
5. No Dilution or Impairment. The Company shall not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, 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 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 reasonably necessary or appropriate in order to protect the rights of the
Holder of this Warrant against dilution or other impairment. Without limiting
the generality of the foregoing, the Company (a) shall not permit the par value
of any shares of stock receivable upon the exercise of this Warrant to exceed
the amount payable therefor upon such exercise, (b) shall take all such action
as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock, free from all taxes,
liens, security interests, encumbrances, preemptive rights and charges on the
exercise of the Warrants from time to time outstanding, (c) shall not take any
action which results in any adjustment of the Purchase Price if the total number
of shares of Common Stock (or Other Securities) issuable after the action upon
the exercise of all of the Warrants would exceed the total number of shares of
Common Stock (or Other Securities) then authorized by the Company's certificate
of incorporation and available for the purpose of issue upon such exercise, and
(d) shall not issue any capital stock of any class which is preferred as to
dividends or as to the distribution of assets upon voluntary or involuntary
dissolution, liquidation or winding-up, unless the rights of the holders thereof
shall be limited to a fixed sum or percentage of par value or a sum determined
by reference to a formula based on a published index of interest rates, an
interest rate publicly announced by a financial institution or a similar
indicator of interest rates in respect of participation in dividends and to a
fixed sum or percentage of par value in any such distribution of assets.
6. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock issuable upon the exercise of this
Warrant, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms of this Warrant and prepare a
certificate, signed by the Chairman of the Board, President or one of the Vice
Presidents of the Company, and by the Chief Financial Officer, the Treasurer or
one of the Assistant Treasurers of the Company, setting forth such adjustment or
readjustment and showing in reasonable detail the method of calculation thereof
and the facts upon which such adjustment or readjustment is based, including a
statement of (a) the consideration received or to be received by the Company for
any Additional Shares of Common Stock issued or sold or deemed to have been
issued, (b) the number of shares of Common Stock outstanding or deemed to be
outstanding, and (c) the Purchase Price in effect immediately prior to such
issue or sale and as adjusted and readjusted (if required by Section 3) on
account thereof. The Company shall forthwith mail a copy of each such
certificate to each holder of a Warrant and shall, upon the written request at
any time of any holder of a Warrant, furnish to such holder a like certificate.
The Company shall also keep copies of all such certificates at its principal
office and shall cause the same to be available for inspection at such office
during normal business hours by any holder of a Warrant or any prospective
purchaser of a Warrant designated by the holder thereof. The Company shall, upon
the request in writing of the Holder (at the Company's expense), retain
independent public accountants of recognized
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national standing selected by the Board of Directors of the Company to make any
computation required in connection with adjustments under this Warrant, and a
certificate signed by such firm shall be conclusive evidence of the correctness
of such adjustment, which shall be binding on the Holder and the Company.
7. Notices of Corporate Action. In the event of:
(a) 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, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, any consolidation or
merger involving the Company and any other Person, any transaction or series
of transactions in which more than 50% of the voting securities of the Company
are transferred to another Person, or any transfer, sale or other disposition
of all or substantially all the assets of the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
the Company shall mail to each holder of a Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, and (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, sale, disposition, dissolution, liquidation or winding-up is to take
place and the time, if any such time is to be fixed, as of which the holders of
record of Common Stock (or Other Securities) shall be entitled to exchange their
shares of Common Stock (or Other Securities) for the securities or other
property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least 20 days prior to the date
therein specified but in no event earlier than the public announcement of such
proposed transaction or event.
8. intentionally omitted.
9. Reservation of Stock, etc. The Company shall at all times reserve and
keep available, solely for issuance and delivery upon exercise of the Warrants,
100% of the number of shares of Common Stock (or Other Securities) from time to
time issuable upon exercise of any Warrant at the time outstanding. All shares
of Common Stock (or Other Securities) issuable upon exercise of any Warrants
shall be duly authorized and, when issued upon such exercise, shall be validly
issued and, in the case of shares, fully paid and nonassessable with no
liability on the part of the holders thereof, and, in the case of all
securities, shall be free from all taxes, liens, security interests,
encumbrances, preemptive rights and charges. The transfer agent for the Common
Stock, which may be the Company (the "Transfer Agent"), and every subsequent
Transfer Agent for any shares of the Company's capital stock issuable upon the
exercise of any of the purchase rights represented by this Warrant, are hereby
irrevocably authorized and directed at all times until the Expiration Date to
reserve such number of authorized and unissued shares as shall be requisite for
such purpose. The Company shall keep copies of this Warrant on file with the
Transfer Agent for the Common Stock and with every subsequent Transfer Agent for
any shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by this Warrant. The Company shall supply such
Transfer Agent with duly executed stock certificates for such purpose. All
Warrant Certificates surrendered upon the exercise of the rights thereby
evidenced shall be canceled, and such canceled Warrants shall constitute
sufficient evidence of the number of shares of stock which have been issued upon
the exercise of such Warrants. Subsequent to the Expiration Date, no shares of
stock need be reserved in respect of any unexercised Warrant.
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10. Registration and Transfer of Warrants, etc.
10.1. Warrant Register; Ownership of Warrants. Each Warrant issued by the
Company shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as it is issued and transferred, which Warrant Register
shall be maintained by the Company at its principal office or, at the Company's
election and expense, by a Warrant Agent or the Company's transfer agent. The
Company shall be entitled to treat the registered Holder of any Warrant on the
Warrant Register as the owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other Person, and shall not be affected by any notice to the
contrary, except that, if and when any Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as the
owner of such Warrant for all purposes. A Warrant, if properly assigned, may be
exercised by a new holder without a new Warrant first having been issued.
10.2. Transfer of Warrants. This Warrant and all rights hereunder are
transferable in whole or in part, without charge to the Holder hereof (other
than transfer taxes imposed in connection with such transfer which shall be
borne by the Holder), upon surrender of this Warrant with a properly executed
Form of Assignment attached hereto as Exhibit B at the principal office of the
Company (or such other office or agency of the Company as it may in writing
designate to the Holder), provided, however, that (a) such transfer is in
compliance with all applicable state and federal securities laws, and (b) such
assignee is not a direct competitor of the Company. Upon any partial transfer,
the Company shall at its expense issue and deliver to the Holder a new Warrant
of like tenor, in the name of the Holder, which shall be exercisable for such
number of shares of Common Stock with respect to which rights under this Warrant
were not so transferred and to the transferee a new Warrant of like tenor, in
the name of the transferee, which shall be exercisable for such number of shares
of Common Stock with respect to which rights under this Warrant were so
transferred.
10.3. Replacement of Warrants. 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 any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company from an entity whose
creditworthiness is reasonably acceptable to the Company or, in the case of any
such mutilation, on surrender of such Warrant to the Company at its principal
office and cancellation thereof, the Company at its expense shall execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10.4. Adjustments To Purchase Price and Number of Shares. Notwithstanding
any adjustment in the Purchase Price or in the number or kind of shares of
Common Stock purchasable upon exercise of this Warrant, any Warrant theretofore
or thereafter issued may continue to express the same number and kind of shares
of Common Stock as are stated in this Warrant, as initially issued.
10.5. Fractional Shares. Notwithstanding any adjustment pursuant to Section
3 in the number of shares of Common Stock covered by this Warrant or any other
provision of this Warrant, the Company shall not be required to issue fractions
of shares upon exercise of this Warrant or to distribute certificates which
evidence fractional shares. In lieu of fractional shares, the Company shall make
payment to the Holder, at the time of exercise of this Warrant as herein
provided, in an amount in cash equal to such fraction multiplied by the Current
Market Price of a share of Common Stock on the date of Warrant exercise.
11. Remedies; Specific Performance. The Company acknowledges and agrees
that there would be no adequate remedy at law to the Holder of this Warrant in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms of this Warrant and accordingly, the
Company agrees that, in addition to any other remedy to which the Holder may be
entitled at law or in equity, the Holder shall be entitled to seek to compel
specific performance of the obligations of the Company under this Warrant,
without the posting of any bond, in accordance with the terms and conditions of
this Warrant in any court of the United States or any State
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thereof having jurisdiction, and if any action should be brought in equity to
enforce any of the provisions of this Warrant, the Company shall not raise the
defense that there is an adequate remedy at law. Except as otherwise provided by
law, a delay or omission by the Holder hereof in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy shall be exclusive of
any other remedy. All available remedies shall be cumulative.
12. No Rights or Liabilities as Shareholder. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
stockholder of the Company or as imposing any obligation on the Holder to
purchase any securities or as imposing any liabilities on the Holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
13. Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant shall be in
writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile if received
prior to 5:00 p.m. (if a mechanically generated confirmation is generated) on a
business day ; (iii) three days after being sent by U.S. certified mail, return
receipt requested, or (iv) one day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the Company:
Starbase Corporation
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Vice President and
Chief Financial Officer
and
Starbase Corporation
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxx, Esq., Corporate Counsel
With a copy to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxx
If to a Holder, to its address and facsimile number on the register
maintained by the Company. Each party shall provide five days' prior written
notice to the other party of any change in address or facsimile number.
Notwithstanding the foregoing, the exercise of any Warrant shall be effective in
the manner provided in Section 2.
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14. Amendments. This Warrant and any term hereof may not be amended,
modified, supplemented or terminated, and waivers or consents to departures from
the provisions hereof may not be given, except by written instrument duly
executed by the Holder and the Company.
15. Descriptive Headings, Etc. The headings in this Warrant are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Warrant otherwise
requires: (1) words of any gender shall be deemed to include each other gender;
(2) words using the singular or plural number shall also include the plural or
singular number, respectively; (3) the words "hereof", "herein" and "hereunder"
and words of similar import when used in this Warrant shall refer to this
Warrant as a whole and not to any particular provision of this Warrant, and
Section and paragraph references are to the Sections and paragraphs of this
Warrant unless otherwise specified; (4) the word "including" and words of
similar import when used in this Warrant shall mean "including, without
limitation," unless otherwise specified; (5) "or" is not exclusive; and (6)
provisions apply to successive events and transactions.
16. GOVERNING LAW. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of New York (without giving effect to the
conflict of laws principles thereof).
17. Judicial Proceedings. Any legal action, suit or proceeding brought
against the Company with respect to this Warrant may be brought in any federal
court of the Southern District of New York or any state court located in New
York County, State of New York, and by execution and delivery of this Warrant,
the Company hereby irrevocably and unconditionally waives any claim (by way of
motion, as a defense or otherwise) of improper venue, that it is not subject
personally to the jurisdiction of such court, that such courts are an
inconvenient forum or that this Warrant or the subject matter may not be
enforced in or by such court. The Company hereby irrevocably and unconditionally
consents to the service of process of any of the aforementioned courts in any
such action, suit or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, at its address set forth or provided for in
Section 13, such service to become effective 10 days after such mailing. Nothing
herein contained shall be deemed to affect the right of any party to serve
process in any manner permitted by law or commence legal proceedings or
otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action, suit or proceeding brought pursuant to this
Section. The Company irrevocably submits to the exclusive jurisdiction of the
aforementioned courts in such action, suit or proceeding.
18. Registration Rights Agreement. The shares of Common Stock issuable upon
exercise of this Warrant (or upon conversion of any shares of Common Stock
issued upon such exercise) shall constitute Registrable Securities (as such term
is defined in the Registration Rights Agreement). Each holder of this Warrant
shall be entitled to all of the benefits afforded to a holder of any such
Registrable Securities under the Registration Rights Agreement and such holder,
by its acceptance of this Warrant, agrees to be bound by and to comply with the
terms and conditions of the Registration Rights Agreement applicable to such
holder as a holder of such Registrable Securities.
19. LIMITATION ON EXERCISE. Notwithstanding any provision to the contrary
contained herein, in no event shall the Holder be entitled to exercise this
Warrant, such that upon giving effect to such exercise, the aggregate number of
shares of Common Stock then beneficially owned by the Holder and its
"affiliates" as defined in Rule 144 of the Act (excluding any shares deemed to
be beneficially owned by the Holder as a result of its brokerage, investment
advisory, financial advisory, asset management, trading, market making,
arbitrage and other similar activities conducted in the ordinary course of its
business) would exceed 4.99% of the total issued and outstanding shares of the
Common Stock following such exercise; provided, however, that Holder may elect
to waive this restriction upon not less than sixty-one (61) days prior written
notice to the Company. For purposes of this Section, beneficial ownership shall
be calculated in accordance with Section 13(d) of the Exchange Act.
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STARBASE CORPORATION
By:
-------------------------------
Name:
Title:
[FORM OF]
ELECTION TO PURCHASE SHARES
AND TRANSFER AGENT INSTRUCTIONS
The undersigned hereby irrevocably elects to exercise the Warrant to
purchase ____ shares of Common Stock, par value $.01 per share ("Common Stock"),
of STARBASE CORPORATION (the "Company") and hereby makes payment of $________ in
consideration therefor. The undersigned hereby requests that certificates for
such shares be issued and delivered as follows:
ISSUE TO:
----------------------------------------------------------------------
(NAME)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
--------------------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO: --------------------------------------------------------------------
(NAME)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
If the number of shares of Common Stock purchased hereby is less than the
number of shares of Common Stock covered by the Warrant, the undersigned
requests that a new Warrant representing the number of shares of Common Stock
not so purchased be issued and delivered as follows:
ISSUE TO:
----------------------------------------------------------------------
(NAME OF HOLDER)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
DELIVER TO:
--------------------------------------------------------------------
(NAME OF HOLDER)
--------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
Dated: [NAME OF HOLDER]
--------------
By
-------------------------
Name:
Title:
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__________________, as transfer agent and registrar of the Common Stock, is
hereby authorized and directed to issue the above number of shares of Common
Stock in the name of the above referenced entity or person and to deliver the
certificates representing such shares using an overnight delivery service.
STARBASE CORPORATION
By:
---------------------------
Name:
Title:
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EXHIBIT B to
Common Stock Purchase Warrant
[FORM OF] ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
unto the Assignee named below all of the rights of the undersigned to purchase
Common Stock, par value $.01 per share ("Common Stock") of STARBASE CORPORATION
represented by the Warrant, with respect to the number of shares of Common Stock
set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ________ as Attorney to make
such transfer on the books of STARBASE CORPORATION maintained for that purpose,
with full power of substitution in the premises.
Dated: [NAME OF HOLDER]
------------------
By
---------------------------
Name:
Title:
