Exhibit 4.4
NEITHER THIS WARRANT, NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR MAY BE OFFERED OR SOLD IN THE UNITED STATES OR TO A "U.S.
PERSON" (AS SUCH TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE ACT)
UNLESS THE WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. THIS WARRANT MAY
NOT BE EXERCISED BY OR ON BEHALF OF A U.S. PERSON UNLESS REGISTERED UNDER THE
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE.
DATAWARE TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
(40,000 SHARES)
Dataware Technologies, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, Entrust Nominees Limited ("Entrust") or its
assigns, is entitled, subject to the terms set forth below, to purchase from the
Company at any time or from time to time after the date hereof and before 5:00
P.M., Boston time, on the third anniversary of the date of initial issuance of
this Warrant (the "Termination Date"), up to Forty Thousand (40,000) fully paid
and nonassessable shares of common stock, $.01 par value, of the Company
("Common Stock"), at a purchase price per share of $10.00 (such purchase price
per share as adjusted from time to time as herein provided is referred to herein
as the "Purchase Price"). The number and character of such shares of Common
Stock and the Purchase Price are subject to adjustment as provided herein.
This Warrant is issued pursuant to a certain Agreement-Sale of Shares of even
date herewith, between the Company and Entrust. As used herein the following
terms, unless the context otherwise requires, have the following respective
meanings:
(a) The term "Company" shall include Dataware Technologies, Inc. and any
corporation that shall succeed or assume the obligations of the Company
hereunder.
(b) The terms "Warrant" or "Warrants" mean this Warrant and any other warrant
or warrants issued in exchange or substitution for, or upon partial exercise of,
this Warrant.
1. EXERCISE OF WARRANT.
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1.1. Subject to Section 1.2, this Warrant may be exercised in full or in part
by the holder hereof by surrender of this Warrant, with the subscription form at
the end hereof duly executed by such holder, to the Company at its principal
office, accompanied by payment in cash or by certified or official bank check
payable to the order of the Company in the amount of the aggregate Purchase
Price for the number of shares of Common Stock designated by the holder in the
subscription form. On any partial exercise the Company at its expense will
forthwith issue and deliver to or upon the order of the holder hereof a new
Warrant or Warrants of like tenor, in the name of the holder hereof or as such
holder (upon compliance with Sections 10 and 11 and payment by such holder of
any applicable transfer taxes) may request, calling in the aggregate on the face
or faces thereof for the number of shares of Common Stock for which this Warrant
may still be exercised.
1.2. This Warrant may only be exercised by, and Common Stock issued to, a
person who (a) is outside the United States at the time of exercise and who
provides the Company with written certification that
such person is not a U.S. Person and this Warrant is not being exercised on
behalf of a U.S. Person or a written opinion of counsel in form and substance
satisfactory to the Company to the effect that the issuance of Common Stock upon
exercise hereof will be exempt from registration under the Act, and (b) provides
the Company with confirmation that such person is not acquiring such Common
Stock with a
view to any offering or distribution thereof in violation of applicable
securities laws.
2. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon as practicable
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after the exercise of this Warrant in full or in part, and in any event within
10 days thereafter, the Company at its expense (including the payment by it of
any applicable issue taxes) will cause to be issued in the name of and delivered
to the holder hereof, or as such holder (upon upon compliance with Sections 10
and 11 and payment by such holder of any applicable transfer taxes) may direct,
a certificate or certificates for the number of fully paid and nonassessable
shares of Common Stock to which such holder shall be entitled on such exercise.
3. NOTICE OF RECORD DATE. In case the Company shall take a record of the
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holders of its Common Stock (or other stock or securities at the time
deliverable upon the exercise of this Warrant) for the purpose of entitling or
enabling them to receive any dividend or other distribution, or to receive any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right, then and in each such case the
Company will mail or cause to be mailed to the Registered Holder of this Warrant
a notice specifying the date on which a record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right. Such notice shall be mailed at least ten
(10) days before the record date or effective date for the event specified in
such notice.
4. ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC.
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4.1. In case at any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other person, or (c)
transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, the holder of this Warrant, on the exercise
hereof as provided in Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of such
dissolution, as the case may be (but not later than the Termination Date), shall
receive, in lieu of the Common Stock issuable on exercise before such
consummation or such effective date, the stock and other securities and property
(including cash) to which such holder would have been entitled upon such
consummation or in connection with such dissolution, as the case may be, if such
holder had so exercised this Warrant immediately prior thereto, all subject to
further adjustment thereafter as provided in Section 5.
4.2. In the event of any dissolution of the Company following the transfer of
all or substantially all of its
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properties or assets, the Company, prior to such dissolution, shall at its
expense deliver or cause to be delivered the stock and other securities and
property (including cash, where applicable) receivable by the holders of the
Warrants after the effective date of such dissolution pursuant to this Section 4
to a bank or trust company having its principal office in Boston, Massachusetts,
as trustee for the holder or holders of the Warrants, to be held by such trustee
and any successor trustee until the Termination Date or earlier exercise hereof.
4.3. Upon any reorganization, consolidation, merger or transfer (and any
dissolution following any transfer) referred to in this Section 4, this Warrant
shall continue in full force and effect until the Termination Date and the terms
hereof shall be applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the consummation of
such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in the
case of any such transfer, the person acquiring all or substantially all of the
properties or assets of the Company.
5. ADJUSTMENT UPON EXTRAORDINARY EVENTS. In the event that the Company shall
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(i) issue additional shares of Common Stock as a dividend or other distribution
on outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of the Common Stock, then, in each such event, the Purchase
Price shall, simultaneously with the happening of such event, be adjusted by
multiplying the then Purchase Price by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately before such event and
the denominator of which is the number of shares of Common Stock outstanding
immediately after such event, and the product so obtained shall thereafter be
the Purchase Price. Upon any such adjustment, the holder of this Warrant shall
thereafter, upon the exercise hereof as provided in Section 1, be entitled to
receive that number of shares of Common Stock determined by multiplying the
number of shares of Common Stock issuable upon exercise hereof immediately
before such adjustment by a fraction, the numerator of which is the Purchase
Price that was in effect immediately before such adjustment, and the denominator
of which is the Purchase Price in effect on the date of such exercise.
6. NOTIFICATION AS TO ADJUSTMENTS. In each case of any adjustment or
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readjustment in the Purchase Price and shares of Common Stock issuable on the
exercise of the Warrants, the Company shall give written notice thereof, by
first class mail, postage prepaid, addressed to the holder of this Warrant at
his or its address registered on the books of the Company, which notice shall
state the Purchase Price resulting from such adjustment and the increased or
decreased, if any, number of shares purchasable at such price upon the exercise
of this Warrant, setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based.
7. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF WARRANTS. The Company
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will at all times reserve and keep available, solely for issuance and delivery
on the exercise of the Warrants, all shares of Common Stock from time to time
issuable upon the exercise of the Warrants.
8. EXCHANGE OF WARRANTS. On surrender for exchange of any Warrant, properly
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endorsed, to the Company, the Company at its expense will issue and deliver to
or on the order of the holder thereof a new Warrant or Warrants of like tenor,
in the name of such holder or as such holder (on payment by such holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face or
faces thereof for the number of shares of Common Stock called for on the face or
faces of the Warrant or Warrants so surrendered, provided, however, that the
Company shall not be obligated to issue such replacement Warrant or Warrants and
record such transfer in the Company's records unless the transfer is in
accordance with all of the terms and conditions of this Warrant and the
Agreement-Sale of Shares executed by the original holder hereof.
9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably satisfactory to
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the Company of the loss, theft, destruction or mutilation of any Warrant and, in
the case of any such loss, theft or destruction of any Warrant, on delivery of
an indemnity agreement or security satisfactory in form and amount to the
Company in its sole discretion or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
10. COMPLIANCE WITH SECURITIES LAWS. This Warrant has been issued in reliance
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on the representations made by the original holder hereof and may be exercised,
transferred or exchanged only in compliance with the Act, including Regulation S
promulgated thereunder. Any holder by accepting this Warrant represents to the
Company that the Warrant is acquired without a view to any offering or
distribution in violation of applicable securities laws. Such holder of this
Warrant agrees that he or it will not offer, sell or otherwise dispose of this
Warrant or the shares of Common Stock issuable upon exercise thereof except in
circumstances that will not result in a violation of the Act, including
Regulation S promulgated under the Act, or any applicable laws relating to the
sale of securities, and such holder agrees to provide the Company with such
documentation as the Company shall deem necessary
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to demonstrate that such offer, sale or disposition complied with applicable
securities laws. This provision shall similarly apply to subsequent transferees
of this Warrant.
11. TRANSFERS. This Warrant is issued upon the following terms, to all of which
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each holder or owner hereof by acceptance hereof consents and agrees.
11.1. Neither this Warrant nor any shares of Common Stock issuable upon
exercise hereof may be offered for sale or sold to any party until after the 40-
day period beginning on the date of original issuance of this Warrant.
11.2. This Warrant may not be transferred or subdivided into warrants to
purchase fewer than 1,000 shares of Common Stock (as adjusted pursuant to
Section 5).
11.3. Subject to the provisions of applicable U.S. securities laws, title to
this Warrant may be transferred by endorsement (by the holder hereof executing
the form of assignment at the end hereof) and delivery in the same manner as in
the case of a negotiable instrument transferable by endorsement and delivery.
11.4. Any person in possession of this Warrant properly endorsed is authorized
to represent himself as absolute owner hereof and is empowered to transfer
absolute title hereto by endorsement and delivery hereof to a bona fide
purchaser hereof for value; each prior taker or owner waives and renounces all
of his equities or rights in this Warrant in favor of each such bona fide
purchaser, and each such bona fide purchaser shall acquire absolute title hereto
and to all rights represented hereby.
11.5. Until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
12. NO RIGHTS AS A STOCKHOLDER. Until the exercise of this Warrant, the holder
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hereof shall have only the rights provided herein and shall not by virtue hereof
have or exercise any voting or other rights as a stockholder of the Company.
13. NOTICES, ETC. All notices and other communications from the Company to the
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holder of this Warrant shall be mailed by first class registered or certified
mail, postage prepaid, at such address as may have been furnished to the Company
in writing by such holder or, until any such holder furnishes to the Company an
address, then to, and at the address of, the last holder of this Warrant who has
so furnished an address to the Company.
14. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
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discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware. The headings in this Warrant are
for purposes of reference only, and shall not limit or otherwise affect any of
the terms hereof. This Warrant is being executed as an instrument under seal.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
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Dated as of March __, 1996
DATAWARE TECHNOLOGIES, INC.
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Name:
Title:
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FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO DATAWARE TECHNOLOGIES, INC.:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder, _______________
shares of Common Stock of Dataware Technologies, Inc. and herewith makes payment
of $____________ therefor, and requests that the certificates for such shares be
issued in the name of, and delivered to
_____________________________________________________________________, whose
address is ______________________________________________________________.
The undersigned (a) certifies to the Company that he or it is not a
U.S. Person (as defined in Regulation S under the U.S. Securities Act of 1933)
and this Warrant is not being exercised on behalf of a U.S. Person, and (b)
confirms that he or it is not acquiring such Common Stock with a view to any
offering or distribution thereof in violation of applicable securities laws.
.................................................
Dated: _______________ (Signature must conform to the name of holder as
specified on the face of the Warrant)
.................................................
(Address)
____________________
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto __________________________________________ the right represented by the
within Warrant to purchase ______________________ [not less than 1,000 shares
without the Company's prior written consent] shares of Common Stock of Dataware
Technologies, Inc. to which the within Warrant relates, and appoints
___________________________________ attorney to transfer such right on the books
of Dataware Technologies, Inc. with full power of substitution in the premises.
.................................................
Dated: _______________ (Signature must conform to name of the holder as
specified on the face of the Warrant)
Signed in the presence of: .................................................
(Address)
.......................
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