EXHIBIT 10.14
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS WARRANT AND SUCH UNDERLYING SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, RENOUNCED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH
APPLICABLE LAWS OF ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IN NOT REQUIRED AND SUCH
FOREIGN JURISDICTION LAWS HAVE BEEN SATISFIED.
HAHT COMMERCE, INC.
STOCK PURCHASE WARRANT
This Warrant is issued as of this 31st day of October 2000, by HAHT
COMMERCE, INC., a Delaware corporation (the "Company"), to HAHT ASIA, INC., a
California corporation, or permitted assigns (the "Holder")
1. Issuance of Warrant; Term; Price; Escrow.
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1.1 Issuance. Subject to the terms hereinafter set forth, the Company
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hereby grants to Holder the right to purchase 150,000 shares of Common Stock of
the Company (the "Warrant Stock").
1.2 Term; Vesting. This Warrant shall be exercisable at any time and
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from time to time for five (5) years after the date hereof.
1.3. Exercise Price. The exercise price (the "Warrant Price") per
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share for which all or any of the shares of Warrant Stock may be purchased
pursuant to the terms of this Warrant shall be $2.50.
1.4 Escrow. The Seller agrees that this Warrant and the Warrant Stock
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shall be held by the Company in escrow until the later of the first anniversary
of the Closing Date or one hundred eighty (180) days after the completion of a
public offering of stock by the Company on a recognized exchange or market,
pursuant to the terms of the Asset Purchase Agreement between the Company and
Holder dated as of the date hereof.
2. Adjustment of Warrant Price, Number and Kind of Shares. The Warrant
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Price and the number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time and the Company agrees
to provide notice upon the happening of certain events as follows.
2.1 Dividends in Stock Adjustment. In case at any time or from time to
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time on or after the date hereof the holders of the Common Stock of the Company
(or any shares of stock or other securities at the time receivable upon the
exercise of this Warrant) shall have received, or, on or after the record date
fixed for the determination of eligible shareholders, shall have become entitled
to receive, without payment therefor, other or additional securities or other
property (other than cash) of the Company by way of dividend or distribution,
then and in each case, the holder of this Warrant shall, upon the exercise
hereof, be entitled to receive, in addition to the number of shares of Warrant
Stock receivable thereupon, and without payment of any additional consideration
therefor, the amount of such other or additional securities or other property
(other than cash) of the Company which such holder would hold on the date of
such exercise had it been the holder of record of such Common Stock on the date
hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional securities or other property receivable by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
this subsection 2.1 and subsections 2.2 and 2.3 of this Section 2.
2.2 Reclassification or Reorganization Adjustment. In case of any
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reclassification or change of the outstanding securities of the Company or of
any reorganization of the Company (or any other corporation the stock or
securities of which are at the time receivable upon the exercise of this
Warrant) on or after the date hereof, then and in each such case the holder of
this Warrant, upon the exercise hereof at any time after the consummation of
such reclassification, change or reorganization, shall be entitled to receive,
in lieu of the stock or other securities and property receivable upon the
exercise hereof prior to such consummation, the stock or other securities or
property to which such holder would have been entitled upon such consummation if
such holder had exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided in subsections 2.1, 2.2 and 2.3 of this Section
2.
2.3 Stock Splits and Reverse Stock Splits. If at any time on or after
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the date hereof the Company shall subdivide its outstanding shares of Common
Stock into a greater number of shares, the Warrant Price in effect immediately
prior to such subdivision shall thereby be proportionately reduced and the
number of shares receivable upon exercise of this Warrant shall thereby be
proportionately increased; and, conversely, if at any time on or after the date
hereof the outstanding number of shares of Common Stock shall be combined into a
smaller number of shares, the Warrant Price in effect immediately prior to such
combination shall thereby be proportionately increased and the number of shares
receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
3. No Fractional Shares. No fractional shares of Warrant Stock will be
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issued in connection with any subscription hereunder. In lieu of any fractional
shares that would otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one share of
Warrant Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
4. No Shareholder Rights. This Warrant as such shall not entitle its holder
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to any of the rights of a shareholder of the Company until the holder has
exercised this Warrant in accordance with Section 6 or Section 7 hereof.
5. Reservation of Stock. The Company covenants that during the period this
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Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Warrant Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Warrant Stock upon the exercise of this
Warrant.
6. Exercise of Warrant. This Warrant may be exercised by Holder by the
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surrender of this Warrant at the principal office of the Company, accompanied by
payment in full of the purchase price of the shares purchased thereby, as
described above. 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, and the person or entity entitled to receive the shares or other
securities issuable upon such exercise shall be treated for all purposes as the
holder of such shares of record as of the close of business on such date. As
promptly as practicable, the Company shall issue a certificate or certificates
for the number of full shares of Warrant Stock issuable upon such exercise,
together with cash in lieu of any fraction of a share as provided above. The
shares of Warrant Stock issuable upon exercise hereof shall, upon their
issuance, be fully paid and nonassessable.
7. Right to Convert Warrant for Stock.
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7.1 Right to Convert. In addition to and without limiting the rights of
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the Holder under the terms of this Warrant, the Holder shall have the right to
convert this Warrant or any portion hereof (the "Conversion Right") into shares
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of Warrant Stock as provided in this Section 7, subject to the restrictions set
forth in subsection 7.3 hereof. Upon exercise of the Conversion Right with
respect to a particular number of shares subject to this Warrant (the "Converted
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Warrant Shares"), the Company shall deliver to the Holder (without payment by
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the Holder of any cash or other consideration) that number of shares of Warrant
Stock equal to the quotient obtained by dividing (x) the value of this Warrant
(or the
specified portion hereof) on the Conversion Date (as defined in subsection 7.2
hereof), which value shall be determined by subtracting (A) the aggregate
Warrant Price of the Converted Warrant Shares immediately prior to the exercise
of the Conversion Right from (B) the aggregate fair market value of the
Converted Warrant Shares issuable upon exercise of this Warrant (or the
specified portion hereof) on the Conversion Date (as herein defined) by (y) the
fair market value of one share of Warrant Stock on the Conversion Date (as
herein defined). No fractional shares shall be issuable upon exercise of the
Conversion Right, and if the number of shares to be issued determined in
accordance with the foregoing formula is other than a whole number, the Company
shall pay to the Holder an amount in cash equal to the fair market value of the
resulting fractional share on the Conversion Date (as herein defined).
7.2 Method of Exercise. The Conversion Right may be exercised by the
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Holder by the surrender of this Warrant at the principal office of the Company
together with a written statement specifying that the Holder thereby intends to
exercise the Conversion Right and indicating the number of shares subject to
this Warrant that are being surrendered (referred to in subsection 7.1 hereof as
the Converted Warrant Shares) in exercise of the Conversion Right. Such
conversion shall be effective immediately prior to the expiration of this
Warrant (the "Conversion Date"). Certificates for the shares of Warrant Stock
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issuable upon exercise of the Conversion Right (or any other securities
deliverable in lieu thereof under subsection 2.1) shall be issued as of the
Conversion Date and shall be delivered to the Holder immediately following the
Conversion Date.
7.3 Restrictions on Conversion Right. In the event that the Conversion
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Right contained herein would, at any time this Warrant remains outstanding, be
deemed by the Company's independent certified public accountants to trigger a
charge to the Company's earnings for financial reporting purposes, then the
Conversion Right shall automatically terminate, and the Company shall promptly
provide written notice to the Holder of such adverse accounting treatment and
termination.
8. Certificate of Adjustment. Whenever the Warrant Price or number or type
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of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
9. Notice of Proposed Transfers. Neither this Warrant nor the Warrant Stock
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shall be transferable while subject to escrow referred to in Section 1.4. Prior
to any proposed transfer of this Warrant or the shares of Warrant Stock received
on the exercise of this Warrant (the "Securities"), unless there is in effect a
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registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), covering the proposed transfer, the Holder thereof shall give
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written notice to the Company of such Holder's intention to effect such
transfer. Each such notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and shall, if the Company so requests,
be accompanied (except in transactions in compliance with Rule 144) by either
(i) an unqualified written opinion of legal counsel who shall be reasonably
satisfactory to the Company addressed to the Company and reasonably satisfactory
in form and substance to the Company's counsel, to the effect that the proposed
transfer of the Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Securities Exchange
Commission (the "Commission") to the effect that the transfer of such Securities
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without registration will not result in a recommendation by the staff of the
Commission that action be taken with respect thereto, whereupon the Holder of
the Securities shall be entitled to transfer the Securities in accordance with
the terms of the notice delivered by the Holder to the Company; provided,
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however, no such registration statement or opinion of counsel shall be necessary
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for a transfer by a Holder to any affiliate of such Holder, if the transferee
agrees in writing to be subject to the terms hereof to the same extent as if
such transferee were the original Holder hereunder. Each certificate evidencing
the Securities transferred as above provided shall bear the appropriate
restrictive legend set forth above, except that such certificate shall not bear
such restrictive legend if in the opinion of counsel for the Company such legend
is not required in order to establish compliance with any provisions of the
Securities Act.
10. Replacement of Warrants. Upon receipt by the Company of evidence
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reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant, and in the case of any such loss, theft or
destruction of the Warrant, on delivery of an indemnity agreement or security
reasonably
satisfactory in form and amount to the Company, and reimbursement to the Company
of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Warrant if mutilated, the Company will execute and deliver,
in lieu thereof, a new Warrant of like tenor.
11. Miscellaneous. This Warrant shall be governed by the laws of the State
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of North Carolina. The headings in this Warrant are for purposes of convenience
of reference only, and shall not be deemed to constitute a part hereof. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions. All notices and other
communications from the Company to the holder of this Warrant shall be delivered
personally or mailed by first class mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who shall
have furnished an address to the Company in writing, and if mailed shall be
deemed given three days after deposit in the U.S. Mail.
12. Taxes. The Company shall pay all issue taxes and other governmental
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charges (but not including any income taxes of a Holder) that may be imposed in
respect of the issuance or delivery of the shares of Warrant Stock or any
portion thereof.
13. Amendment. Any term of this Warrant may be amended with the written
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consent of the Company and the Holder.
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IN WITNESS WHEREOF, the undersigned officer of the Company has set his hand
as of the date first above written.
HAHT COMMERCE, INC.
By:
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President
