EXHIBIT 4.10
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY HAS BEEN, AND ALL SHARES OF
COMMON STOCK ISSUABLE HEREUNDER MAY BE, ISSUED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), AND MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION
UNDER THE ACT UNLESS (A) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION, (B)
THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO SECURITIES AND EXCHANGE
COMMISSION RULE 144 OR (C) SUCH SHARES OF COMMON STOCK ISSUABLE HEREUNDER
HAVE BEEN REGISTERED UNDER THE ACT. THIS WARRANT IS ALSO SUBJECT TO
RESTRICTIONS ON TRANSFER AS PROVIDED HEREIN.
WARRANT TO PURCHASE COMMON STOCK
OF KANA SOFTWARE, INC.
NO. OF SHARES: 1,500,000 WARRANT NO. ACC-2
THIS CERTIFIES THAT, for value received, Accenture LLP, an Illinois limited
liability partnership (the "Holder") is entitled, subject to the terms and
conditions of this Warrant, at any time or from time to time after July 31, 2001
(the "Effective Date"), and before 5:00 p.m. Pacific Time on July 31, 2006 (the
"Expiration Date"), to purchase from Kana Software, Inc., a Delaware corporation
("Kana" or the "Company"), 1,500,000 shares of duly authorized, validly issued,
fully paid and nonassessable Common Stock of the Company (the "Shares") at a
price per Share equal to $0.3325 subject to adjustment pursuant to Section 6
hereof (the "Exercise Price"). This Warrant is intended to be compensatory in
nature pursuant to Section 83 of the Internal Revenue Code of 1986, as amended.
1. CERTAIN DEFINITIONS. As used in this Warrant, the following terms shall
have the following respective meanings:
"Affiliate" means any legal entity that, directly or indirectly through one
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or more intermediaries, controls, is controlled by, or is under common control
with a party. For this purpose "control" shall mean (i) the direct or
indirect beneficial ownership of fifty percent (50%) or more of the voting or
income interest in such corporation or other business entity or (ii) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such corporation or other business
entity; and as to Accenture means any entity, whether incorporated or not, that
is controlled by or under common control with Accenture Ltd., a Bermuda holding
company, and "control" (or variants of it) shall mean the ability whether
directly or indirectly to direct the affairs of another by means of ownership,
contract or otherwise.
"Fair Market Value" of one share of the Company's Common Stock, as of any
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date, shall mean the average of the closing prices of the Common Stock then
quoted on the Nasdaq Stock Market for the ten trading days ending on the day
prior to the measurement date.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
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1976, as amended.
"Common Stock" shall mean the Company's authorized common stock, par value
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$0.001 per share.
"Sale of the Company" shall mean a merger of the Company with or into any
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other corporation or corporations (or other person) or a sale of stock of the
Company, in which the stockholders of this Company immediately before the
merger or stock sale do not hold more than 50% of the voting power of the
surviving corporation immediately after the merger or stock sale, or a sale,
conveyance or disposition of all or substantially all of the assets of this
Company.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Warrant" as used herein, shall include this Warrant and any warrant
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delivered in substitution or exchange therefor as provided herein.
2. VESTING. The Shares shall be fully vested and exercisable as of the date
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hereof.
3. EXERCISE OF WARRANT.
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3.1. Payment. Subject to compliance with the terms and conditions of this
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Warrant and applicable securities laws, this Warrant may be exercised by the
delivery (including, without limitation, delivery by facsimile) of the form of
Notice of Exercise attached hereto as Annex A (the "Notice of Exercise"), duly
executed by the Holder, at the principal office of the Company, and as soon as
practicable after such date, surrendering:
(a) this Warrant at the principal office of the Company, and
(b) payment, (i) in cash (by check) or by wire transfer, (ii)
by cancellation by the Holder of indebtedness of the Company to the Holder, or
(iii) by a combination of (i) and (ii) (the "Exercise Amount"), except that if
the Holder's exercise of this Warrant is subject to HSR Act filing requirements,
the Exercise Amount shall be paid to the Company within five (5) business days
of the termination of all applicable HSR Act restrictions.
3.2. Net Issue Exercise. In lieu of the payment methods set forth in
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Section 3.1(b) above, the Holder may elect to exercise all or some of the
Warrant and receive Shares equal to the value of the amount of the Warrant being
exercised on the date of exercise. If the Holder elects to exercise this Warrant
as provided in this Section 3.2, the Holder shall tender to the Company the
Warrant for the amount being exercised, along with written notice of the
Holder's election to exchange some or all of the Warrant, and the Company shall
issue to the Holder the number of Shares computed using the following formula:
X = Y (A-B)
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A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares under the Warrant that are being exercised
(as adjusted to the date of such calculation).
A = the then Fair Market Value of one share of the Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
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All references herein to an "exercise" of the Warrant shall include an exchange
pursuant to this Section 3.2.
3.3. Stock Certificates; Fractional Shares. As soon as practicable on or
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after the date this Warrant is exercised, the Company shall issue and deliver to
the Holder a certificate or certificates for the number of whole Shares issuable
upon such exercise, together with cash in lieu of any fraction of a Share equal
to such fraction of the then Fair Market Value of one whole share of Common
Stock as of the date of exercise of this Warrant. No fractional shares or scrip
representing fractional shares shall be issued upon an exercise of this Warrant.
Subject to the foregoing, the Company may place on any certificate or
certificates issued to Holder such legends as the Company deems appropriate to
evidence the provisions of Section 11 below.
3.4. Partial Exercise; Effective Date of Exercise. In case of any partial
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exercise of this Warrant, the Company shall cancel this Warrant upon surrender
hereof and shall execute and deliver a new Warrant of like tenor and date for
the balance of the Shares purchasable hereunder. This Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date of
its surrender for exercise as provided above. However, if Holder's exercise of
this Warrant is subject to HSR Act filing requirements, this Warrant shall be
deemed to have been exercised on the date immediately following the date of the
expiration of all applicable HSR Act restrictions. The person entitled to
receive the Shares issuable upon exercise of this Warrant shall be treated for
all purposes as the holder of record of such shares as of the close of business
on the date the Holder is deemed to have exercised this Warrant.
3.5. Sale of the Company. In the event of a Sale of the Company, the
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Company shall give written notice to the Holder of such Sale of the Company not
less than thirty (30) days prior to the anticipated closing date thereof. The
surviving company from any Sale of the Company (or the Company at the request of
the intended surviving company) may, at anytime prior to thirty (30) days
following the closing date of the Sale of the Company, terminate this Warrant by
providing thirty (30) days written notice of termination. During such thirty
(30) day period after the notice (or such longer period if required by HSR
restrictions), Holder may exercise the Warrant with respect to any vested and
unexercised Shares. Upon termination, all Shares not exercised shall be
forfeited.
4. VALID ISSUANCE; TAXES. All Shares issued upon the exercise of this Warrant
shall be validly issued, fully paid and nonassessable. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for the Shares in any name other
than that of the Holder of this Warrant, and in such case the Company shall not
be required to issue or deliver any stock certificate or security until such tax
or other charge has been paid, or it has been established to the Company's
reasonable satisfaction that no tax or other charge is due.
5. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to it, and (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
execute and deliver in lieu thereof a new Warrant of like tenor as the lost,
stolen, destroyed or mutilated Warrant.
6. ADJUSTMENTS. If the Company shall at any time prior to the expiration of
this Warrant subdivide its Common Stock, by split-up or otherwise, or combine
its capital stock, or issue additional securities as a dividend with respect to
any shares of its Common Stock, the number of 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,
but the aggregate Exercise Price payable for the total number of
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Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 6 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.
7. RESERVATION OF COMMON STOCK. The Company hereby covenants that at all times
there shall be reserved for issuance and delivery upon exercise of this Warrant
such number of shares of Common Stock or other shares of capital stock of the
Company as are from time to time issuable upon exercise of this Warrant and,
from time to time, will take all steps necessary to amend its Certificate of
Incorporation to provide sufficient reserves of shares of Common Stock issuable
upon exercise of this Warrant. All such shares shall be duly authorized, and
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights, except encumbrances or restrictions arising under federal or state
securities laws. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and issue the necessary certificates for Shares upon the exercise of
this Warrant.
8. REGISTRATION. The Company shall file a registration statement to register
all Shares issued hereunder under the Securities Act as soon as practicable
after the Effective Date and shall use reasonable efforts to cause such
registration statement to be declared effective within six (6 ) months from the
Effective Date. The foregoing Section 8 shall not apply if (a) a registration
statement permitting the sale of the Shares is effective or (b) if the Shares
are saleable under Rule 144.
9. TRANSFER AND EXCHANGE. This Warrant shall not be transferable except (a) in
the event of a sale of the Holder or (b) to any Affiliate of the Holder. In the
event of a transfer of this Warrant in whole or in part, the Company shall
deliver a new Warrant to the transferee and the Holder, if applicable, with
respect to the number of Shares for which this Warrant may then be exercisable.
Any extraordinary costs resulting from such transfers (including, without
limits, reasonable cost of legal and tax advisors for domestic and international
law compliance, registration costs, etc.) shall be borne by Holder.
10. SECURITIES LAW RESTRICTIONS. The Holder, by acceptance hereof, agrees that,
absent an effective registration statement filed with the Securities and
Exchange Commission (the "SEC") under the Securities Act, covering the
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disposition or sale of this Warrant or the Shares issued or issuable upon
exercise hereof, as the case may be, and registration or qualification under
applicable state securities laws, such Holder will not sell, pledge, hypothecate
or otherwise transfer any or all such Warrants or Shares, as the case may be, or
any interest therein unless either (i) the Company has received an opinion of
counsel, in form and substance reasonably satisfactory to the Company, to the
effect that such registration is not required in connection with such
disposition or (ii) the sale of such securities is made pursuant to SEC Rule
144.
11. RESTRICTION ON SALE BY HOLDER. The Holder, by acceptance hereof, agrees
that it shall not sell, pledge, hypothecate or otherwise transfer more than two
hundred and fifty thousand (250,000) Warrants or Shares, as the case may be, or
any interest therein except as provided in Section 9 hereof, on or before August
1, 2002.
12. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder
hereby represents, warrants and covenants that any Shares purchased upon
exercise of this Warrant or acquired upon conversion thereof shall be acquired
for investment only and not with a view to, or for sale in connection with, any
distribution thereof; and that, unless the Shares shall have been registered
with the SEC under the Securities Act, all stock certificates representing
Shares issued to the Holder upon exercise
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of this Warrant or upon conversion of such Shares may have affixed thereto a
legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER SAID ACT. THE COMPANY MAY REQUIRE DELIVERY OF AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT ANY PROPOSED
TRANSFER IS EXEMPT FROM OR IN COMPLIANCE WITH SAID ACT AND ANY APPLICABLE
STATE SECURITIES LAW."
13. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Warrant shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Company. In
the absence of affirmative action by such Holder to purchase Shares by exercise
of this Warrant, no provisions of this Warrant, and no enumeration herein of the
rights or privileges of the Holder hereof, shall cause such Holder hereof to be
a stockholder of the Company for any purpose.
14. NOTICES. Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. Notices given to Holder shall be addressed to
Accenture LLP, 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, with a copy to
Accenture Technology Ventures, 0000 Xxxxx X'Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, Attention: ATV Controller: . The date of giving any notice shall be
the date of its actual receipt.
15. HEADINGS. The headings in this Warrant are for purposes of convenience in
reference only, and shall not be deemed to constitute a part hereof.
16. GOVERNING LAW. This Warrant shall be construed and enforced in accordance
with, and governed by, the laws of the State of Delaware.
17. SEVERABILITY. If any term, provision, covenant or restriction of this
Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Warrant shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
18. SATURDAYS, SUNDAYS AND HOLIDAYS; CURRENCY. If the Expiration Date falls on
a Saturday, Sunday or legal holiday in the State of New York, the Expiration
Date shall automatically be extended until 5:00 p.m. the next business day. All
monetary references herein are in the currency of the United States.
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IN WITNESS WHEREOF, the Company and the Holder have executed this
Warrant as of August 9, 2001.
KANA SOFTWARE, INC.
By: /s/ Xxxxx Bay
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Name: Xxxxx Bay
Title: CEO, President
ACCENTURE LLP
By: /s/
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Name:
Title:
Accenture LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
With a copy to:
Accenture
000 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Legal Group, Ventures and Alliances
Annex A
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NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
KANA SOFTWARE, INC. WARRANT NO. ______
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder, the
securities of Kana Software, Inc. as provided for therein, and (check the
applicable box):
[_] Tenders herewith payment of the exercise price in the form of cash, check,
wire transfer, or exchange of stock, in the amount of $____________ for
_________ such securities.
[_] Elects the Net Issue Exercise option pursuant to Section 3.2 of the
Warrant, and accordingly converts the attached Warrant into _______ shares
of Common Stock in the manner specified Section 3.2.
Please issue a certificate or certificates for such securities in the name of,
and pay any cash for any fractional share to (please print name, address and
social security number):
Name: ___________________________________________________________
Address: ___________________________________________________________
Signature: ___________________________________________________________
Dated: ___________________________________________________________
Note: The above signature should correspond exactly with the name on the first
page of this Warrant.
If said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder rounded up to the
next higher whole number of shares.
