EXHIBIT 4.4
THIS WARRANT AND THE COMMON STOCK TO BE ISSUED UPON EXERCISE OF THIS WARRANT
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") AND MAY NOT BE TRANSFERRED UNLESS REGISTERED UNDER THE ACT,
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
NO. 1997-CMN-XXX
STARBASE CORPORATION
NONTRANSFERABLE COMMON STOCK PURCHASE WARRANT
8. ISSUANCE. In consideration of good and valuable consideration, the receipt of
which is hereby acknowledged by StarBase Corporation, a Delaware corporation
(the "Company") _________________ or registered assigns (the "Holder") is hereby
granted the right to purchase at any time until 5:00 P.M., New York City time,
on September 5, 2000 (the "Expiration Date"), (___________) fully paid and
nonassessable shares of the Company's Common Stock, par value $.01 per share
(the "Common Stock") at an initial exercise price of $1.80 per share (the
"Exercise Price"), subject to further adjustment as set forth in Section 6
hereof.
9. EXERCISE OF WARRANTS. This Warrant is exercisable in whole or in part at the
Exercise Price per share of Common Stock payable hereunder, payable in cash or
by certified or official bank check. Upon surrender of this Warrant Certificate
with the annexed Notice of Exercise Form duly executed, together with payment of
the Exercise Price for the shares of Common Stock purchased, the Holder shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
10. RESERVATION OF SHARES. The Company hereby agrees that at all times during
the term of this Warrant there shall be reserved for issuance upon exercise of
this Warrant such number of shares of its Common Stock as shall be required for
issuance upon exercise of this Warrant (the "Warrant Shares").
11. MUTILATION OR LOSS OF WARRANT. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) receipt of reasonably
satisfactory indemnification, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor and date and any such lost, stolen, destroyed or mutilated Warrant
shall thereupon become void.
12. RIGHTS OF THE HOLDER. The Holder shall not by virtue
hereof, be entitled to any rights of a stockholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed in this
Warrant and are not enforceable against the Company except to the extent set
forth herein.
13. PROTECTION AGAINST DILUTION.
(1) ADJUSTMENT MECHANISM. If an adjustment of the Exercise Price is required
pursuant to this Section 6, the Holder shall be entitled to purchase such number
of additional shares of Common stock as will cause (I) the total number of
shares of Common Stock Holder is entitled to purchase pursuant to this Warrant,
multiplied by (ii) the adjusted purchase price per share, to equal (iii) the
dollar amount of the total number of shares of Common Stock Holder is entitled
to purchase before adjustment multiplied by the total purchase price before
adjustment.
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(2) CAPITAL ADJUSTMENTS. In case of any stock split or reverse stock split,
stock dividend, reclassification of the Common Stock, recapitalization, merger
or consolidation, or like capital adjustment affecting the Common Stock of the
Company, the provisions of this Section 6 shall be applied as if such capital
adjustment event had occurred immediately prior to the date of this Warrant and
the original purchase price had been fairly allocated to the stock resulting
from such capital adjustment; and in other respects the provisions of this
Section shall be applied in a fair, equitable and reasonable manner so as to
give effect, as nearly as may be, to the purposes hereof. A rights offering to
stockholders shall be deemed a stock dividend to the extent of the bargain
purchase element of the rights.
14. TRANSFER TO COMPLY WITH THE SECURITIES ACT; REGISTRATION
RIGHTS.
(1) This Warrant may not be assigned or transferred in whole or in part. This
Warrant has not been registered under the Securities Act of 1933, as amended
(the "Act"), and has been issued to the Holder for investment and not with a
view to the distribution of either the Warrant or the Warrant Shares. Neither
the Warrant Shares nor any other security issued or issuable upon exercise of
this Warrant may be sold, transferred, pledged or hypothecated in the absence of
an effective registration statement under the Act relating to such security or
an opinion of counsel satisfactory to the Company and the registration is not
required under the Act. Each certificate for the Warrant, the Warrant Shares and
any other security issued or issuable upon exercise of this Warrant shall
contain the following legend on the face thereof, as determined by counsel for
the Company:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
(2) The Company agrees to file a registration statement, which shall include the
Warrant Shares, on Form S-3 (or any successor form to Form S-3) (the
"Registration Statement"), pursuant to the terms of a Registration Rights
Agreement between the Company and the Holder dated September 5, 1997.
15. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage pre-paid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or, if mailed, two days after the date of deposit in the United
States mails, as follows:
(1) if to the Company, to:
StarBase Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
(2) if to the Holder, to:
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Any party may be notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
16. SUPPLEMENTS AND AMENDMENTS; WHOLE AGREEMENT. This
Warrant may be amended or supplemented only by an instrument in writing signed
by the parties hereto. This Warrant of even date herewith contain the full
understanding of the parties hereto with respect to the subject matter hereof
and thereof and there are no representations, warranties, agreements or
understandings other than expressly contained herein and therein.
17. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York. Each of the
parties consents to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the state courts of the State of
New York sitting in the City of New York in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based ON FORUM NON COVENIENS, to the
bringing of any such proceeding in such jurisdictions.
18. COUNTERPARTS. This Warrant may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
19. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Warrant are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Warrant as of the 5th day of September 1997.
STARBASE CORPORATION
By:
-------------------------------
Its:
------------------------------
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ANNEX I
NOTICE OF EXERCISE OF WARRANT
(1) The undersigned hereby irrevocably elects to exercise the
right, represented by the Warrant Certificate dated as of
___________, to purchase ___ shares of the Common Stock, par
value $.01 per share, of StarBase Corporation and tenders
herewith payment in accordance with Section 1 of said Common
Stock Purchase Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms
and acknowledges that the shares of Common stock are being
acquired solely for the account of the undersigned and not as
a nominee for any other party, and for investment, and that
the undersigned will not offer sell or otherwise dispose of
any such shares of Common Stock, except under circumstances
that will not result in a violation of the United States
Securities Act of 1933, as amended, or any foreign otr state
securities laws.
(3) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or is
such other name as is specified below.
(4) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned.
Dated:_______________________
By:___________________________
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