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EXHIBIT 4(c)
THIS WARRANT AND THE SECURITIES THAT MAY BE ACQUIRED UPON THE EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES THAT MAY BE ACQUIRED UPON THE
EXERCISE OF THIS WARRANT MAY BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER PROVISIONS OF THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS;
AND IN THE CASE OF ANY EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT REQUIRE
REGISTRATION OF THE WARRANT OR THE OTHER SECURITIES.
WARRANT TO PURCHASE SEVEN HUNDRED THOUSAND (700,000) SHARES OF COMMON STOCK
OF NATIONAL DATACOMPUTER, INC.
Warrant No. RBB-3 Void After January 31, 2001
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THIS CERTIFIES THAT, for value received, RBB Bank Aktiengesellschaft of
Xxxxxxxx 00, 0000 Xxxx, Xxxxxxx ("RBB") or assigns (RBB, or such assigns who may
be the registered holder or holders hereof, are hereinafter referred to as the
"Holder") is entitled to subscribe for and purchase Seven Hundred Thousand
(700,000) shares of the fully paid and nonassessable Common Stock (as adjusted
pursuant to Section 4 hereof, hereinafter, the "Shares") of NATIONAL
DATACOMPUTER, INC., a Delaware corporation (hereinafter, the "Company"), at the
price of $0.75 per share (such price and such other price as shall result, from
time to time, from the adjustments specified in Section 4 hereof is herein
referred to as the "Exercise Price"), subject to the provisions and upon the
terms and conditions hereinafter set forth. As used herein, the term "Common
Stock" shall mean the Company's presently authorized Common Stock, $.08 par
value per share, and any stock into which such Common Stock may hereafter be
exchanged.
This Warrant is issued pursuant to the Regulation S Offshore
Subscription Agreement (the "Agreement"), dated as of January 31, 1998, between
the Company and RBB, a copy of which is on file at the principal office of the
Company. By acceptance of this Warrant the Holder agrees to comply with the
terms, conditions and obligations imposed by the Agreement.
1. TERM. The purchase right represented by this Warrant is exercisable,
in whole or in part, at any time or from time to time prior to 5:00 p.m. Boston
time on January 31, 2001.
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2. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
(a) Subject to the terms hereof, the purchase right
represented by this Warrant may be exercised by the Holder hereof, in whole or
in part, by the surrender of this Warrant (with the notice of exercise form
attached hereto as EXHIBIT A duly executed) at the principal office of the
Company and by the payment to the Company, pursuant to Section 2(b) below, of an
amount equal to then applicable Exercise Price per share multiplied by the
number of Shares then being purchased. Certificates for the Shares purchased
shall be delivered to the Holder hereof within 30 days of the date of exercise
and, unless this Warrant has been fully exercised or expired, a new Warrant
representing the unexercised portion shall also be issued to the Holder hereof
within such 30 day period.
(b) METHOD OF PAYMENT. Payment shall be made (i) by check
payable to the Company, or (ii) by wire transfer in accordance with the
Company's written instructions.
3. STOCK FULLY PAID; RESERVATION OF SHARES. All Shares which may be
issued pursuant to this Warrant, shall, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable, and free of any liens and
encumbrances except for restriction on transfer provided for herein or under
applicable federal and state securities laws. While this Warrant is outstanding,
the Company shall at all times have authorized, and reserved for the purpose of
the issue pursuant to this Warrant, a sufficient number of shares of the Common
Stock to provide for the exercise of the purchase right represented by this
Warrant.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number and
kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In the case of
any reclassification or change of the Common Stock issuable upon exercise of
this Warrant, the Company shall execute a new Warrant, providing that the Holder
of this Warrant shall have the right to exercise such new Warrant and upon such
exercise to receive, in lieu of each share of Common Stock theretofore issuable
upon exercise of this Warrant, the number and kind of shares of stock, other
securities, money or property receivable upon such reclassification or change in
respect of one share of the Common Stock. Such new Warrant shall provide for
further adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section.
(b) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the
Company at any time while this Warrant remains outstanding shall split,
subdivide or combine its Common Stock, the Exercise Price shall be
proportionately decreased in the case of a split or subdivision and increased in
the case of a combination.
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(c) STOCK DIVIDENDS. If the Company at any time while this
Warrant is outstanding shall pay a dividend with respect to the Common Stock
payable in, or make any other distribution with respect to the Common Stock
(except any distribution specifically provided for in Section 4(a) or 4(b)
above) of, shares of the Common Stock, then the Exercise Price shall be
adjusted, from and after the date of determination of the shareholders entitled
to receive such dividend or distribution, to that price determined by
multiplying the Exercise Price in effect immediately prior to such date of
determination by a fraction (i) the numerator of which shall be the total number
of the Common Stock outstanding immediately prior to such dividend or
distribution, and (ii) the denominator of which shall be the total number of
shares of the Common Stock outstanding immediately after such dividend or
distribution.
(d) ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment in
the Exercise Price, the number of Shares purchasable hereunder shall be
adjusted, to the nearest whole share, to the product obtained by multiplying the
number of Shares purchasable immediately prior to such adjustment in the
Exercise Price by a fraction (i) the numerator of which shall be the Exercise
Price immediately prior to such adjustment, and (ii) the denominator of which
shall be the Exercise Price immediately after such adjustment.
5. TRANSFERABILITY. The Holder hereby acknowledges that neither this
Warrant nor any of the securities that may be acquired upon exercise of this
Warrant have been registered under the Securities Act of 1933, as amended, or
under the securities laws of any state. The Holder acknowledges that, upon
exercise of this Warrant, the securities to be issued upon such exercise may
come under applicable federal and state securities (or other) laws requiring
registration, qualification or approval of governmental authorities before such
securities may be validly issued or delivered upon notice of such exercise. The
Company's sole obligation to any Holder upon exercise hereof shall be to use its
best efforts to obtain exemptions from registration or qualification for the
issuance of such securities under applicable state and federal securities (or
other) laws, and the Holder further agrees that the issuance of such securities
shall be deferred until such exemptions shall have been obtained. With respect
to any such securities, this Warrant may not be exercised by, and securities
shall not be issued to, any Holder in any state in which such exercise would be
unlawful. The Holder agrees that the Company may place such legend or legends on
certificates representing securities issued upon exercise of this Warrant as the
Company may reasonably deem necessary to comply with applicable state and
federal securities laws for the issuance of such securities. The provisions of
this Section shall apply to the transfer of this Warrant and the shares of
Common Stock purchasable upon exercise of this Warrant.
6. NOTICE OF ADJUSTMENTS. Whenever any Exercise Price shall be adjusted
pursuant to Section 4 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated and the Exercise Price or Exercise Prices after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
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7. FRACTIONAL SHARES. No fractional shares of the Common Stock shall be
issued in connection with any exercise hereunder, but in lieu of such fractional
shares the Company shall make a cash payment therefor upon the basis of the
Exercise Price then in effect.
8. PRIOR NOTICE OF CERTAIN EVENTS. The Company shall give the Holder of
this Warrant prior written notice of any of the following transactions: (a) any
consolidation, merger or other corporate reorganization involving the Company;
(b) any transaction or series of related transactions by the Company in which in
excess of 50% of the Company's voting power is transferred; (c) any
reclassification of the Common Stock; or (d) a sale of all or substantially all
of the assets of the Company. Such notice shall be given to the Holder not later
than the earlier of (x) 20 days prior to the consummation of the transaction, or
(y) 15 days prior to the record date for shareholders entitled to vote on or
participate in the transaction. Such notice shall provide the Holder with a
description of the transaction. The Holder may, by so stating in its notice of
exercise, make any exercise of its rights under this Warrant to purchase Shares
for the Exercise Price effective immediately prior to but conditional upon, the
consummation of any such transaction.
9. NO RIGHTS OF SHAREHOLDERS. No Holder of this Warrant shall be
entitled to vote or receive dividends or be deemed the holder of Common Stock or
any other securities of the Company which may at any time be issuable on the
exercise thereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Warrant shall have been exercised as
provided herein. Immediately upon any exercise of this Warrant, and without
waiting for the certificates for such Shares to be issued and delivered, the
Holder shall be deemed to be the record holder of, and to have all rights of a
shareholder with respect to, the Shares issuable upon such exercise.
10. NOTICES. All notices and other communications from the Company to
the Holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, or sent by telecopier, facsimile machine or
telex to 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.
11. TRANSFER. Subject to the provisions of this Warrant and the
Agreement, including without limitation the provisions of Section 5 hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, at the
office or agency of the Company by the registered Holder thereof in person or by
a duly authorized attorney, upon surrender of this Warrant together with an
Assignment in the form attached hereto as EXHIBIT B properly endorsed. Until
transfer hereof
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on the registration books of the Company, the Company may treat the registered
Holder hereof as the owner hereof for all purposes. Any transferee of this
Warrant and any rights hereunder, by acceptance thereof, agrees to assume all of
the obligations of a Holder thereunder and to be bound by all of the terms and
provisions of the Agreement.
12. MISCELLANEOUS. In case any provision of this Warrant shall be
invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the extent, if any, that it
may legally be enforced and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. This
Warrant and any term hereof may be changed, a waived, discharged or terminated
only by a statement in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. This Warrant
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements. This Warrant shall be
governed by and construed in accordance with the domestic substantive laws (and
not the conflict of law rules) of The Commonwealth of Massachusetts. 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 shall take effect as
an instrument under seal.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer as of this 31st day of January, 1998.
NATIONAL DATACOMPUTER, INC.
By:
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Xxxxxxx X. Xxxxx, Ph.D., President
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EXHIBIT A
NOTICE OF EXERCISE
TO: NATIONAL DATACOMPUTER, INC.
1. The undersigned hereby elects to purchase _____________________
shares of the Common Stock of NATIONAL DATACOMPUTER, INC. pursuant to the terms
of the attached Warrant, and tenders herewith
____________________________________ ($_______) in payment of the purchase price
of such shares in full, together with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares
of the Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
3. The undersigned represents that the aforesaid shares of the Common
Stock are being acquired solely for his own account (or a trust account if the
holder is a trust) and not as a nominee for any other party, for investment only
and not with a view toward the resale or distribution thereof and that the
undersigned has no present intention of reselling, granting any participation in
or otherwise distributing such shares.
Date: By:
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(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant)
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EXHIBIT B
FORM OF ASSIGNMENT
The undersigned holder of this Warrant hereby sells, assigns and
transfers to ____________________________ all of the rights of the undersigned
under this Warrant with respect to ________________________ (________) shares of
the Common Stock of NATIONAL DATACOMPUTER, INC. and requests that a new Warrant
of like tenor evidencing this assignment be issued and delivered to
___________________________________ with an address at
_____________________________________________.
BY:
(Signature must conform in all respects to
name of Holder as specified on the face of
the Warrant)
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