EXHIBIT 10.29
THIS WARRANT IS A CONTINGENT WARRANT AND IS EXERCISABLE ONLY UNDER THE
CONDITIONS SPECIFIED IN SECTION 1 HEREOF
THE WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER,
HAVE BEEN AND WILL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933 AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES
HAVE BEEN ACQUIRED NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND SHALL NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED DISPOSITION IS
THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SEE SECTION 6.
VIEWLOCITY
CONTINGENT WARRANT FOR PURCHASE OF COMMON SHARES
For value received, Viewlocity, Inc.(the "Company"), a Delaware
corporation, hereby certifies that Xxxxxxx Street Associates II, LLC, a
Massachusetts limited liability company or the permitted assign(s) of such
entity (collectively, "Holder") is entitled to purchase from the Company, shares
of the capital common stock of the Company, fully-paid and nonassessable, at any
time or from time to time, but prior to 5:00 p.m. on October 27, 2004
("Expiration Date"), which shall be no later than sixty (60) months after the
execution of this Warrant. The price per share for each such share purchased
pursuant to an exercise of this Warrant ("Exercise Price") shall be calculated
as follows:
(A) The "Aggregate Purchase Price" of the "Common Shares" hereunder is
$393,750.00.
(B) The Holder may purchase Common Shares at an exercise price of $1.00
per share, subject to adjustment as hereinafter provided.
(Hereinafter: the term "Common Shares" shall refer to all shares of the
capital common stock of the Company issued and outstanding at any time during
the term of this Warrant, together with any other equity securities that the
Company may issue in substitution for such shares other than Warrants; the term
"Warrants" shall refer to this Warrant and all warrants issued in exchange or
substitution for this Warrant; the term "Warrant Shares" shall refer to the
Common Shares purchasable under Warrants; the term "Aggregate Exercise Price"
shall refer to the aggregate purchase price payable under Warrants for the
Warrant Shares; and the term "Per Warrant Share Price" shall refer to the price
payable under this Warrant for each of the Warrant Shares.
1. EXERCISE OF WARRANT.
(A) Provided that (i) the Minimum Series D Issuance (as
defined in the the Convertible Subordinated Debenture Purchase Agreement dated
October ___, 1999 ("Debenture Purchase Agreement") by and among Company, Xxxxxxx
Street Associates II, LLC and Holder) has not occurred on or prior to December
15, 1999, and (ii) the principal indebtedness of the Convertible Subordinated
Debenture ("Debenture") of even date herewith issued by Company to Holder in
connection with the Debenture Purchase Agreement has not been converted into
shares of the Company's Series D Convertible Preferred Stock, the Holder may
exercise this Warrant as follows:
(B) CONTINGENT EXERCISE OF WARRANT IN WHOLE. Provided that the
conditions set forth in Section 1(A) above have been satisfied, the Holder may
exercise this Warrant in full at any time by surrendering it (with the
subscription form at the end of this Warrant duly executed and indicating the
whole number of Warrant Shares with respect to which the Holder shall then be
exercising the Warrant) at the principal office of the Company at the time of
exercise currently (400 Perimeter Center Terrace, Atlanta, Georgia, 30346)
together with a certified, registered or bank cashier's check drawn upon Boston
clearinghouse funds in the amount of the Aggregate Exercise Price payable to the
order of the Company (hereinafter, the term "Payment" shall mean payment in this
manner). Upon such exercise of this Warrant in full, the Holder shall receive:
(i) a certificate or certificates in the name of the Holder for the largest
number of whole Warrant Shares to which the Holder shall then be entitled; (ii)
cash equal in value to any fractional share to which the Holder shall then be
entitled (with the amount of such cash to be calculated in such reasonable
manner as the board of directors of the Company shall determine); and (iii) the
other securities and properties, if any, receivable pursuant to the provisions
of this Warrant. No fractional shares shall be issued to the Holder in respect
of exercise of this Warrant.
(C) CONTINGENT EXERCISE OF WARRANT IN PART. Provided that the
conditions set forth in Section 1(A) above have been satisfied, the Holder may
exercise this Warrant in part at any time and from time to time prior to 5:00
p.m. on the Expiration Date, by surrendering it (with the subscription form at
the end of this Warrant duly executed and indicating the whole number of Warrant
Shares with respect to which the Holder shall then be exercising the Warrant) at
the principal office of the Company at the time of exercise, together with
Payment of that portion of the Aggregate Exercise Price that shall bear the same
ratio to the total Aggregate Exercise Price as the number of Warrant Shares in
respect of which this Warrant is then being exercised shall bear to the total
number of Warrant Shares subject to this Warrant. If this Warrant shall be
exercised in part, it must be exercised for a whole number of Warrant Shares;
and, upon such partial exercise, the Holder shall receive: (i) a new Warrant for
the number of Warrant Shares in respect of which this Warrant has not been
exercised ("Remaining Shares"), which new Warrant shall set forth the Aggregate
Exercise Price applicable to the Remaining Shares; and (ii) the applicable
proportion of the other securities and properties, if any, receivable pursuant
to the provisions of this Warrant.
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2. CONVERSION RIGHT.
(A) In lieu of the payment of the Exercise Price, the Holder
shall have the right (but not the obligation), to require the Company to convert
this Warrant, in whole or in part, into shares of Common Shares (the "Conversion
Right") as provided for in this Section 2. Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
any of the Exercise Price; PROVIDED, HOWEVER, that the Holder shall be required
to pay the par value for any shares of Common Shares so delivered) that number
of shares of Common Shares equal to the quotient obtained by dividing (x) the
value of the Warrant at the time the Conversion Right is exercised, by (y) the
Fair Market Value of one share of Common Shares immediately prior to the
exercise of the Conversion Right. For purposes of this Section, the "value" of
the Warrant shall be determined by subtracting the aggregate Exercise Price in
effect immediately prior to the exercise of the Conversion Right from the
aggregate Fair Market Value of the Warrant immediately prior to the exercise of
the Conversion Right.
(B) The Conversion Right may be exercised by the Holder on any
Business Day prior to the Expiration Date by delivering the Warrant, with a duly
executed Exercise Form with the conversion section completed to the Company,
exercising the Conversion Right and specifying the total number of shares of
Common Shares the Holder will be issued pursuant to such conversion.
(C) Fair Market Value of a share of Common Shares as of a
particular date (the "Determination Date") shall mean:
(i) If the Common Shares are listed on a national securities
exchange, then the Fair Market Value shall be the average of the last ten "daily
sales prices" of the Common Shares on the national securities exchange on which
the Common Shares is listed or admitted for trading on the last ten Business
Days prior to the Determination Date, or if not listed or traded on any such
exchange, then the Fair Market Value shall be the average of the last ten "daily
sales prices" of the Common Shares on the National Market or Small Cap Market of
the National Association of Securities Dealers Automated Quotations System
("NASDAQ") on the last ten business days prior to the Determination Date. The
"daily sales price" shall be the closing price of the Common Shares at the end
of each day; or
(ii) If the Common Shares are not so listed or admitted to
unlisted trading privileges or if no such sale is made on at least nine of such
days, then the Fair Market Value shall be the higher of (x) the Book Value per
share, and (y) the fair value as reasonably determined in good faith by the
Company's Board of Directors or a duly appointed committee of the Board (which
determination shall be reasonably described in the written notice delivered to
the Holder together with the certificates for the Common Shares).
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3. RESERVATION OF WARRANT SHARES. The Company agrees that the Company
shall, at all times during the term of this Warrant, have the Warrant Shares and
other securities and properties, if any, as from time to time shall be
receivable upon the exercise of this Warrant authorized, in reserve, and
available solely for issuance or delivery upon exercise of this Warrant, free
and clear of all restrictions upon sale or transfer, except (a) such as may
exist under the Company's Articles of Organization and By-Laws as constituted on
the date of this Warrant; or (b) such as may exist or arise under agreements
between the Holder, on the one hand, and the Company or others, on the other
hand, with respect to the securities of the Company; and (c) such as may be
imposed by applicable securities laws of any state, nation or political
subdivision.
4. PROTECTION AGAINST DILUTION. The rights of the Holder shall be
subject to the following terms and conditions:
(A) ADJUSTMENTS TO EXERCISE PRICE FOR DILUTING ISSUES.
(i) SPECIAL DEFINITIONS. For purposes of this
Section 4, the following definitions shall apply:
(1) "OPTION" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common Shares or
Convertible Securities.
(2) "ORIGINAL ISSUE DATE" shall mean the
date of this original Warrant.
(3) "STOCK PURCHASE WARRANT" shall mean this
Warrant issued by the Company.
(4) "CONVERTIBLE SECURITIES" shall mean any
evidences of indebtedness, shares (other than Common Shares) or other securities
directly or indirectly convertible into or exchangeable for Common Shares.
(5) "ADDITIONAL SHARES OF COMMON SHARES"
shall mean all shares of Common Shares issued (or, pursuant to Subsection
4(A)(iii), deemed to be issued) by the Company after the Original Issue Date.
(ii) NO ADJUSTMENT TO EXERCISE PRICE. Except as set
forth in Subsection 4(B), no adjustment in the Exercise Price for which this
Warrant is exercisable shall be made unless the consideration per share for
an Additional Share of Common Shares issued or deemed to be issued by the
Company is less than the Exercise Price in effect on the date of, and
immediately prior to, the issue of such Additional Share of Common Shares.
The following transactions will be disregarded for purposes of this Section
4: (1) the issuance of any shares of Common Shares on
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exercise of this Warrant, (2) the issusance of up to 10,713,000 shares of Common
shares under the Company's current stock option plan (3) the conversion of any
Convertible Securities issued and outstanding on the date hereof.
(iii) ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL
SHARES OF COMMON SHARES.
(1) OPTIONS AND CONVERTIBLE SECURITIES. In
the event the Company at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities entitled to
receive any such Options or Convertible Securities, then the maximum number of
shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Shares issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional Shares of Common Shares
issued as of the time of such issue or, in case such a record date shall have
been fixed, as of the close of business on such record date, provided that
Additional Shares of Common Shares shall not be deemed to have been issued
unless the consideration per share (determined pursuant to Subsection 4(A)(v)
hereof) of such Additional Shares of Common Shares would be less than the
Exercise Price in effect on the date of and immediately prior to such issue, or
such record date, as the case may be, and provided further that in any such case
in which Additional Shares of Common Shares are deemed to be issued:
(a) no further adjustment in the Exercise
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Shares upon the exercise of such Options or conversion or
exchange of such Convertible Securities if any adjustment shall have been
previously made upon the issuance of such securities as herein provided;
(b) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for
any increase or decrease in the consideration payable to the Company, or
increase or decrease in the number of shares of Common Shares issuable, upon
the exercise, conversion or exchange thereof, the Exercise Price computed
upon the original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(c) upon the expiration of any such Options
or any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Exercise Price computed upon the original
issue thereof (or upon the
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occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be recomputed as if:
(i) in the case of Convertible
Securities or Options for Common Shares the only Additional Shares of Common
Shares issued were the shares of Common Shares, if any, actually issued upon
the exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor was the
consideration actually received by the Company for the issue of all such
Options, whether or not exercised, plus the consideration actually received
by the Company upon such exercise, or for the issue of all such Convertible
Securities which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Company upon such conversion
or exchange; and
(ii) in the case of Options for
Convertible Securities only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options, and
the consideration received by the Company for the Additional Shares of Common
Shares deemed to have been then issued was the consideration actually received
by the Company for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the Company (determined
pursuant to Subsection 4(A)(v)) upon the issue of the Convertible Securities
with respect to which such Options were actually exercised;
(d) no readjustment pursuant to clause (b)
or (c) above shall have the effect of increasing the Exercise Price to an
amount which exceeds the lower of (i) the Exercise Price on the original
adjustment date, or (ii) the Exercise Price that would have resulted from any
issuance of Additional Shares of Common Shares between the original
adjustment date and such readjustment date;
(e) in the case of any Options which expire
by their terms not more than 30 days after the date of issue thereof, no
adjustment of the Exercise Price shall be made until the expiration or exercise
of all such Options, whereupon such adjustment shall be made in the same manner
provided in clause (c) above; and
(f) if such record date shall have been
fixed and such Options or Convertible Securities are not issued on the date
fixed therefor, the adjustment previously made in the Exercise Price which
became effective on such record date shall be canceled as of the close of
business on such record date, and thereafter the Exercise Price shall be
adjusted pursuant to this Subsection 4(A)(iii) as of the actual date of their
issuance.
(iv) ADJUSTMENT TO EXERCISE PRICE UPON ISSUANCE OF
ADDITIONAL SHARES OF COMMON SHARES.
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(1) ADJUSTMENT FORMULA. The Exercise Price
shall be subject to adjustment from time to time as set forth below. Upon each
adjustment of the Exercise Price pursuant to this Section, the Holder shall
(until another such adjustment) thereafter be entitled to purchase at the
Exercise Price the number of shares obtained by dividing (a) the product of the
number of Shares multiplied by the initial Exercise Price by (b) the adjusted
Exercise Price.
(2) ADJUSTMENT OF THE EXERCISE PRICE. In
the event that at any time or from time to time after the Original Issue Date
the Company shall issue Additional Shares of Common Shares (including, without
limitation, Additional Shares of Common Shares deemed to be issued pursuant to
Subsection 4(A)(iii), but excluding shares issued upon a stock subdivision or
combination as provided in Subsection 4(B)), without consideration or for a
consideration per share less than the applicable Exercise Price in effect on the
date of and immediately prior to such issue, then and in such event, such
Exercise Price shall be reduced concurrently with such issue, to a price
(calculated to the nearest cent) determined in accordance with the following
formula:
P1 Q1 + P2 Q2
Exercise Price = ----------------
Q1 + Q2
where:
Exercise Price = New Exercise Price
P1 = Exercise Price in effect immediately prior to
new issue.
Q1 = Number of shares of Common Shares outstanding
immediately prior to such issue (assuming
conversion of all then outstanding Convertible
Securities of the Company).
P2 = Average price per share received by the
Company upon such issue.
Q2 = Number of shares of Common Shares issued,
or deemed to have been issued, in the
subject transaction.
PROVIDED THAT the applicable Exercise Price shall not be so reduced at any time
if the amount of such reduction would be an amount less than $.01, but any such
amount shall be carried forward and reduction with respect thereto made at the
time of and together with any subsequent reduction which, together with such
amount and any other amount or amounts so carried forward, shall aggregate $.01
or more.
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(v) DETERMINATION OF CONSIDERATION. For purposes of
this Subsection 4(A), the consideration received by the Company for the issue of
any Additional Shares of Common Shares shall be computed as follows:
(1) CASH AND PROPERTY: Such consideration shall:
(a) insofar as it consists of cash, be
computed at the aggregate amounts of cash received by the Company;
(b) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(c) in the event Additional Shares of Common
Shares are issued together with other shares or securities or other assets of
the Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors.
(2) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Shares deemed to have been issued pursuant to Subsection 4(A)(iii)(1), relating
to Options and Convertible Securities, shall be determined by dividing (x) the
total amount, if any, received or receivable by the Company as consideration for
the issue of such Options or Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Company upon the exercise of
such Options or the conversion or exchange of such Convertible Securities, or in
the case of Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities, by (y) the maximum number of shares of Common Shares (as set forth
in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise
of such Options or the conversion or exchange of such Convertible Securities.
(B) ADJUSTMENT TO EXERCISE PRICE FOR SUBDIVISION OR
COMBINATION. If the Company at any time or from time to time after the issuance
of this Warrant subdivides (by any stock split, stock dividend, recapitalization
or otherwise) the outstanding shares of the class of securities issuable upon
exercise hereof into a greater number of shares, the Exercise Price in effect
immediately before that subdivision shall be proportionately decreased. If the
Company at any time or from time to time after the issuance of this Warrant
combines (by reverse stock split or otherwise) the outstanding shares of the
class of securities issuable upon exercise hereof, the Exercise Price in effect
immediately before the combination shall be proportionately increased. Any
adjustment
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under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.
(C) ADJUSTMENT IN THE NUMBER OF SHARES FOR DILUTING ISSUES,
SUBDIVISIONS OR COMBINATIONS. Whenever the Exercise Price is adjusted pursuant
to Subsection 4(A)(iv) or 4(B), the number of shares of the class of securities
issuable upon exercise hereof also shall be adjusted pursuant to the formula set
forth in Subsection 4(A)(iv)(1).
(D) ADJUSTMENTS FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. In
the event that at any time or from time to time after the Original Issue Date
the Company shall make or issue, or fix a record date for the determination of
holders of the class of securities issuable upon exercise hereof who are
entitled to receive a dividend or other distribution payable in securities of
the Company, then and in each such event, unless such dividend or distribution
results in an adjustment of the Exercise Price pursuant to Subsections 4(A) or
4(B), provision shall be made so that the Holder of this Warrant shall receive
upon exercise hereof in addition to the securities receivable hereupon, the
amount of securities of the Company that he would have received had this Warrant
been exercised on the date of such event and had he thereafter, during the
period from the date of such event to and including the exercise date, retained
such securities receivable by him as aforesaid during such period, giving
application during such period to all adjustments called for herein.
(E) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE OR SUBSTITUTION.
In the event that at any time or from time to time after the Original Issue
Date, the class of securities issuable upon the exercise of this Warrant shall
be changed into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for above, or a merger, consolidation, or sale of assets provided for below),
then and in each such event the Holder of this warrant shall have the right
thereafter to exercise this Warrant for the kind and amount of shares of stock
and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of the
class of securities into which such warrant might have been exercisable for
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(F) ADJUSTMENT FOR MERGER CONSOLIDATION OR SALE OF ASSETS. In
the event that at any time or from time to time after the Original Issue Date,
the Company shall merge or consolidate with or into another entity or sell all
or substantially all of its assets, this Warrant shall thereafter be exercisable
for the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of the class of securities of the Company
deliverable upon exercise of this Warrant would have been entitled upon such
consolidation, merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in the
application of the provisions set forth in this Section 4 with respect to the
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rights and interest thereafter of the Holder of this Warrant, to the end that
the provisions set forth in this Section 4 (including provisions with respect to
changes in and other adjustments of the Exercise Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other property thereafter deliverable upon the exercise of this Warrant.
(G) NO IMPAIRMENT. The Company shall not, by amendment of its
Articles of Orgnization, as in effect on the date hereof, or By-Laws or through
any reorganization, transfer of assets, consolidation, merger, 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 to be observed or
performed hereunder by the Company but shall at all times in good faith assist
in the carrying out of all the provisions of this Section 4 and in the taking of
all such action as may be necessary or appropriate in order to protect the
rights of the Holder of this Warrant against impairment.
(H) NOTICE OF ADJUSTMENT OF NUMBER OF SHARES. Upon any
adjustment, readjustment or other change relating to the number of shares
purchasable upon exercise of this Warrant or to the Exercise Price, then, and in
each such case, the Company shall give written notice thereof, by first class
mail, postage prepaid, addressed to the Holder at the address of such Holder as
shown on the books of the Company, which notice shall state the Exercise Price
resulting from such adjustment and the increase or decrease in the number of
shares (or other denominations of securities) purchasable at the Exercise 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.
(I) NOTICE. In case at any time: (1) the Company shall pay any
dividend or make any distribution (other than regular cash dividends from
earnings or earned surplus paid at an established rate) to the holders of the
class of securities issuable upon exercise of this Warrant; (2) the Company
shall offer for subscription pro rata to the holders of the class of securities
issuable upon exercise of this Warrant any additional shares of stock of any
class or other rights; (3) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with or sale of all or substantially all of its assets to another
corporation; or (4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of such
cases, the Company shall give written notice, by first class mail, postage
prepaid, addressed to the Holder at the address of such Holder as shown on the
books of the Company of the date on which (a) the books of the Company shall
close or a record date shall be fixed for determining the shareholders entitled
to such dividend, distribution or subscription rights, or (b) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also provide reasonable details of the proposed transaction and specify
the date as of which the holders of record of the class of securities issuable
upon exercise of this Warrant shall
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participate in such dividend, distribution or subscription rights, or shall be
entitled to exchange their securities for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be. Such written
notice shall be given at least 10 days prior to the action in question and not
less than 10 days prior to the record date or the date on which the Company's
transfer books are closed in respect thereto.
(J) VOTING RIGHTS. This Warrant shall not entitle the Holder
to any voting rights or any other rights as a stockholder of the Company but
upon presentation of this Warrant with the subscription form annexed duly
executed and the tender of Payment of the Exercise Price at the office of the
Company pursuant to the provisions of this Warrant the Holder shall forthwith be
deemed a stockholder of the Company in respect of the securities so subscribed
and paid for.
(K) NO CHANGE NECESSARY. The form of this Warrant need not be
changed because of any adjustment in the Exercise Price or in the number of
shares issuable upon its exercise. A Warrant issued after any adjustment on any
partial exercise or upon replacement may continue to express the same Exercise
Price and the same number of shares (appropriately reduced in the case of
partial exercise) as are stated on this Warrant as initially issued, and that
Exercise Price and that number of shares shall be considered to have been so
changed as of the close of business on the date of adjustment.
5. FULLY-PAID SHARES; TAXES. The Company covenants that the Common
Shares represented by each and every certificate for Warrant Shares delivered
upon exercise of this Warrant shall, at the time of such delivery, be duly
authorized, validly-issued and outstanding, and fully-paid and nonassessable,
and that the Company shall take any and all such actions as may be necessary to
ensure that the par value or stated value, if any, of each Warrant Share is at
all times equal to or less than the then Per Share Warrant Price; and that it
will pay when due and payable any and all stamp, original issue or similar taxes
that may be payable in respect of issuance of any Warrant Shares or certificates
for Warrant Shares.
6. SECURITIES RESTRICTIONS UPON TRANSFER. Each holder of this Warrant
acknowledges that this Warrant and the Warrant Shares have not been registered
under the Securities Act of 1933, as now in force or hereafter amended, or any
successor legislation (the "ACT"), and agrees not to sell, pledge, distribute,
offer for sale, transfer or otherwise dispose of this Warrant or any Warrant
Shares issued upon its exercise in the absence of (a) an effective registration
statement under the Act as to this Warrant or such Warrant Shares and
registration or qualification of this Warrant or such Warrant Shares under any
applicable Blue Sky or state securities law then in effect, or (b) an opinion of
counsel, satisfactory to the Company, that such registration and qualification
are not required.
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Without limiting the generality of the foregoing, unless the offering
and sale of the Warrant Shares to be issued upon the particular exercise of the
Warrant shall have been effectively registered under the Act, the Company shall
be under no obligation to issue the shares covered by such exercise unless and
until the Holder shall have executed an investment letter in form and substance
satisfactory to the Company, including a warranty at the time of such exercise
that it is acquiring such shares for its own account, for investment and not
with a view to, or for sale in connection with, the distribution of any such
shares, in which event the Holder shall be bound by the provisions of the
following legend or a legend in substantially similar form which shall be
endorsed upon the certificate(s) evidencing the exercised Warrant pursuant to
such exercise:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws, have been acquired for
investment, and may not be sold, pledged, hypothecated or
otherwise transferred unless a registration statement under
the Act and applicable state law is in effect with regard
thereto or unless an exemption from such registration is
available.
In addition, without limiting the generality of the foregoing, the
Company may delay issuance of the Warrant Shares until completion of any action
or obtaining of any consent, which the Company deems necessary under any
applicable law (including without limitation state securities or "blue sky"
laws).
7. STOCKHOLDER AGREEMENT. Each Holder of this Warrant agrees that upon
the exercise in whole or in part of this Warrant, that Holder shall execute and
become a party to a stockholder agreement. Further, Holder agrees that the
Company shall be under no obligation to issue the shares covered by such
exercise unless and until the Holder shall have executed a stockholder agreement
in form and substance satisfactory to the Company, containing provisions
restricting the transfer of the shares received by exercising this warrant,
including placing a transfer restriction legend on the shares evidencing the
exercise of this Warrant.
8. NO DISTRIBUTION. The Holder of this Warrant, by acceptance hereof,
represents and warrants that this Warrant has been acquired without a view to,
or for sale in connection with, a distribution thereof and not with a view to
its resale, and that this Warrant has been acquired for the Holder's own account
and not with a view to its division among others, and that no other person has
any direct or indirect beneficial interest in this Warrant. Notwithstanding the
foregoing, the Company agrees that the Holder shall have the right to grant
participation interests in the Warrant.
9. REGISTRATION RIGHTS. The Holder shall be entitled, with respect to
(i) its Warrant Shares and other securities issued or issuable upon exercise of
this Warrant and (ii) any securities issued or issuable with respect to any
Common Shares or other
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securities referred to in subdivision (i) by way of a stock dividend or stock
split or in connection with a combination or other reorganization or otherwise,
the piggy back registration rights as set forth in that certain Registration
Rights Agreement dated March 12, 1999 (the "Registration Rights Agreement"), by
and among Company, the Investors (as defined therein) and the __________ (as
defined therein). Holder shall not be entitled to other registration rights
included in the Registration Rights Agreement. Except as may be otherwise
provided in the Registration Rights Agreement governing such rights, the right
to have the Company register such securities pursuant to such agreement shall be
automatically assigned to transferees or assignees of this Warrant or such
securities, provided that immediately following such transfer or assignment, the
further disposition of such securities by the transferee or assignee would be
subject to restrictions under the Act.
10. BOOKS OF THE COMPANY. The Company may treat the Holder of this
Warrant as appearing on the Company's books at any time as the Holder for all
purposes. Upon written request, the Company shall permit any Holder or the duly
authorized attorney of such Holder, during ordinary business hours, to inspect
and copy or make extracts from the books showing the Holders of Warrants.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. If this Warrant
shall be lost, stolen, destroyed, or mutilated, the Company shall execute and
deliver to the Holder a replacement warrant of like date, tenor, and
denomination upon receipt by the Company of (a) evidence satisfactory to the
Company of the occurrence of such event, (b) reimbursement of the Company's
reasonably incidental expenses, and (c) (i) in the event of mutilation, upon
surrender and cancellation of this Warrant, or (ii) in the event of loss, theft,
or destruction of this Warrant, of indemnity reasonably satisfactory to the
Company.
12. WARRANT HOLDER NOT SHAREHOLDER. Except as may otherwise be
expressly provided in this Warrant, this Warrant does not, prior to its
exercise, confer upon the Holder any right to vote, or to consent, or to receive
notice, or otherwise to act, as a shareholder of the Company in respect of any
matters whatsoever, or confer or impose upon the Holder any other rights or
liabilities of a shareholder of the Company.
13. NOTICES AND OTHER COMMUNICATIONS. Any notice or other communication
under this Warrant shall be effective and shall be deemed to have been given if,
and only if, the same shall have been given in writing and mailed by first-class
mail, postage prepaid, addressed to:
(A) the Company at the address set forth in Section 1(A)
above, or such other address as the Company may designate in writing to the
Holder, or
(B) the Holder at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, or
such other address as the Holder may designate in writing to the Company.
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14. HEADINGS. The headings contained in this Warrant have been
inserted as a matter of convenience, do not form part, and shall not affect
construction of, this Warrant.
15. APPLICABLE LAW. This Warrant shall be governed by and construed in
accordance with the laws of The State of Georgia applicable to contracts wholly
made, accepted and performed within that jurisdiction, without application of
principles of conflict of laws.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
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____________________________ has caused this Warrant to be executed by
its President and attested by its Secretary or Assistant Secretary this 27th day
of October, 1999.
ATTEST: Viewlocity, Inc.
/s/ XXXX X. XXXXXXXXXXX By: /s/ XXXXXXX XXXXXX
-------------------------------- ---------------------------------
Secretary or Assistant Secretary President
[Corporate Seal]
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SUBSCRIPTION
Date: ____________________
To: Viewlocity, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
The undersigned, pursuant to the provisions set forth in the attached
Warrant hereby irrevocably elects to purchase _____ shares of the Common Shares
(the "COMMON SHARES") covered by such Warrant and herewith makes payment of
$_________, representing the full purchase price for such shares at the price
per share provided for in such Warrant.
The undersigned is aware that the Common Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 ACT") or any
state securities laws. The undersigned understands that the reliance by the
Company on exemptions under the 1933 Act is predicated in part upon the truth
and accuracy of the statements of the undersigned in this Subscription.
The undersigned represents and warrants that (1) it has been furnished
with all information which it deems necessary to evaluate the merits and risks
of the purchase of the Common Shares; (2) it has had the opportunity to ask
questions concerning the Common Shares and the Company and all questions posed
have been answered to its satisfaction; (3) it has been given the opportunity to
obtain any additional information it deems necessary to verify the accuracy of
any information obtained concerning the Common Shares and the Company; (4) it is
an "Accredited Investor" as that term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act, and (5) it has such knowledge and
experience in financial and business matters that it is able to evaluate the
merits and risks of purchasing the Common Shares and to make an informed
investment decision relating thereto.
The undersigned hereby represents and warrants that it is purchasing
the Common Shares for its own account and not with a view to the sale or
distribution of all or any part of the Common Shares.
The undersigned understands that because the Common Shares have not
been registered under the 1933 Act, it must continue to bear the economic risk
of the investment for an indefinite time and the Common Shares cannot be sold
unless the Common Shares are subsequently registered under applicable federal
and state securities laws or an exemption from such registration is available.
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The undersigned agrees that it will in no event sell or distribute or
otherwise dispose of all or any part of the Common Shares unless (1) there is an
effective registration statement under the 1933 Act and applicable state
securities laws covering any such transaction involving the Common Shares or (2)
the Company receives an opinion of legal counsel to the undersigned (concurred
in by legal counsel for the Company) stating that such transaction is exempt
from registration or the Company otherwise satisfies itself that such
transaction is exempt from registration.
The undersigned consents to the placing of a legend on its certificate
for the Common Shares stating that the Common Shares have not been registered
and setting forth the restriction on transfer contemplated hereby and to the
placing of a stop transfer order on the books of the Company and with any
transfer agents against the Common Shares until the Common Shares may be legally
resold or distributed without restriction.
The undersigned has considered the Federal and state income tax
implications of the exercise of the Warrant and the purchase and subsequent sale
of the Common Shares.
--------------------------------------
Signature
Print name:
--------------------------
Date:
--------------------------------
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