DATED JUNE 8, 2000
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DYADIC SYSTEMS LIMITED (1)
AND
ADAYTUM SOFTWARE INC (2)
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AGREEMENT
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[LOGO]
CONTENTS
CLAUSE HEADING PAGE
2 Licence and Maintenance.......................................................................4
3 Support and Maintenance.......................................................................5
4 Waiver........................................................................................5
5 Common Stock Purchase Warrant................................................................6
6 Warranties....................................................................................6
7 Miscellaneous.................................................................................6
Schedule 1.............................................................................................8
Schedule 2............................................................................................13
Schedule 3............................................................................................15
Schedule 4............................................................................................16
THIS AGREEMENT is made on June 8, 2000
BETWEEN :
(1) DYADIC SYSTEMS LIMITED whose registered office is situate at Riverside
View, Xxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, Xxxxxxx XX00 0XX
("DYADIC"); and
(2) ADAYTUM SOFTWARE INC whose registered office is situate at Suite 400,
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx XX 00000 XXX ("ADAYTUM")
IT IS AGREED AS FOLLOWS :
1 DEFINITIONS
1.1 In this Agreement:
"COMMENCEMENT DATE" means the date of this Agreement
"GROUP" shall mean, in relation to any company, that company and any
other company which at the relevant time is its Holding Company or
Subsidiary, or the Subsidiary of any such Holding Company; and "Member"
of a Group has a corresponding meaning; and "Holding Company" and
"Subsidiary" have the meanings given to those expressions by sections
736 and 736A of the Companies Xxx 0000;xxx
"RUN TIME SYSTEM", "DEVELOPMENT SYSTEM","DYALOG APL/W" and "SOFTWARE"
shall have the respective meanings given to them in the Dyadic Software
Licence and Limited Warranty and the Dyalog APL/W No-Charge Run Time
System Licence Amendment to the Dyadic Software Licence Agreement,
copies of which are attached in Schedule 1; and
"ADAYTUM RUN TIME SYSTEM USER" means each user of the Run Time System
supplied with the Run Time System by Adaytum or any Member of its
Group.
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2 LICENCE AND MAINTENANCE
2.1 Dyadic confirms that Adaytum has, shall be deemed to have had and shall
continue to have the benefit of up to and including fifteen licences of
the Development System version of Dyadic's Dyalog APL/W programming
language for itself and the Members of its Group, in each case subject
to the terms set out in the Dyadic Software Licence and Limited
Warranty as amended by the Dyalog APL/W No-Charge Run Time System
Licence Amendment, copies of which appear at Schedule 1, and subject to
clauses 2.2, 2.3, 2.4, and 2.5 below (the "Development System
Licences").
2.2 For the avoidance of doubt the licence granted to Adaytum and the
Members of its group in clause 2.1 shall continue for the duration of
the intellectual property rights which are the subject thereof, subject
only to termination of this Agreement in the event of a breach of this
Agreement by Adaytum which (i) affects or reasonably could be expected
to affect Dyadic's rights to the Software; and (ii) if capable of
remedy is not remedied by Adaytum or any Member of its Group within 30
days of Adaytum receiving written notification from Dyadic to do so.
For any other breach of this Agreement by Adaytum which, if capable of
remedy is not remedied by Adaytum or any Member of its Group within 30
days of Adaytum receiving written notification from Dyadic to do so,
Dyadic may receive money damages.
2.3 Adaytum or any Member of its Group shall be entitled to transfer,
sub-licence or assign use of the Software and the benefit of any
Development System Licences to any other Member of its Group.
2.4 Adaytum and any Member of its Group shall be entitled to make backup
copies of the Software on Adaytum's network servers and escrow disks
(the "Backups") and reinstall the Software from the Backups where such
code is held centrally for all development sites. Adaytum and any
Member of its Group shall also be entitled to hold the current version
of the Software on its network server and to install the Software
directly from its
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server provided that at no time will more than 15 licensees of the
Development System be able to access the Backups.
2.5 Notwithstanding any limitation of liability contained herein or in any
schedule hereto, Dyadic hereby represents and warrants to Adaytum that
(i) the Software substantially conforms to its documentation; (ii)
Dyadic has sufficient rights in the Software in order to grant the
licenses described herein and the schedules hereto to Adaytum and
Members of Adaytum's Group.
3 SUPPORT AND MAINTENANCE
3.1 Subject to clause 3.2 below, Dyadic will provide support and
maintenance services for Adaytum and each Member of its Group in
accordance with the Dyadic Support Service and Dyadic's DSS+ support
terms ("DSS+"), a copy of which is attached at Schedule 2, for a period
of 24 months from the Commencement Date.
3.2 In addition to the maintenance and support offered by DSS+, Dyadic
shall provide Adaytum with additional support and critical issue
consultation access ("Additional Support and Access") in accordance
with the support level detailed in Schedule 3, for a period of 24
months from the Commencement Date.
3.3 In consideration of the provision of the support and maintenance
services by Dyadic to Adaytum under this clause 3 Adaytum shall pay
Dyadic US$5,000 per quarter, payable quarterly in advance (the "SERVICE
FEES") against Dyadic's invoice. Adaytum shall make the first quarterly
payment of the Service Fees on the Commencement Date.
4 WAIVER
4.1 Dyadic fully, finally and forever agrees to settle and waive any and
all the claims, demands, and causes of action, known and unknown,
suspected and unsuspected, which at the date of this Agreement do now
exist, may exist, or have existed in the past as against Adaytum or any
Member of its Group throughout the world relating to Adaytum's or any
Member of its Group's
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use, licensing or distribution of Dyadic software or the offering or
provision of software maintenance or support in relation to Dyadic
Software (the 'Claims'). Dyadic and Adaytum therefore intend that this
and any other waivers given in this Agreement shall be and shall remain
in effect as full and complete specific waivers in relation to the
Claims notwithstanding the discovery or existence of any such
additional or different facts or the termination for any reason or
expiry of this Agreement.
5 COMMON STOCK PURCHASE WARRANT
5.1 In consideration of the licence granted in clause 2 and the waiver
detailed in clause 4 Adaytum shall execute and duly deliver to Dyadic
on the Commencement Date a Common Stock Purchase Warrant in favour of
Dyadic, the form of which is as attached at Schedule 4.
6 WARRANTIES
Each of the parties warrants and represents that it has full power and
authority to enter into this Agreement and perform its obligations
under this Agreement.
7 MISCELLANEOUS
7.1 This Agreement constitutes the entire agreement between the parties
with respect to its subject matter and supersedes all previous
agreements and undertakings between the parties and this Agreement may
not be modified except by a document in writing signed by a duly
authorised representative of each of the parties.
7.2 If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not be affected or impaired.
7.3 Dyadic agrees to execute such documents and do such acts as may
reasonably be required by Adaytum in order to assure Adaytum and the
Members of its Group of their rights under this Agreement.
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7.4 This agreement shall be governed by and construed in accordance with
the Laws of England and Wales and the parties agree to submit to the
exclusive jurisdiction of the English High Court in respect of any
dispute arising out of or in connection with this Agreement.
7.5 For the purpose of section 1(2) of the Contracts (Rights of Third
Parties) Xxx 0000 the parties state that they do not intend any term of
this Agreement to be enforced by any third parties but any third party
right which exists or is available independently of that Act is
preserved.
IN WITNESS of which this Agreement has been signed on behalf of the parties
effective as of the date first written above.
SIGNED for and on behalf of Dyadic Systems Limited by : /S/ X. Xxxxxxxx, Director
Name Xxxxx Xxxxxxxx
In the presence of : /S/ Xxxx Xxxxxxx, Director
SIGNED for and on behalf of Adaytum Software Incorporated by : /S/ J. D. G. Haddleton
Name Xxxx Xxxxx Xxx Xxxxxxxxx
In the presence of : /S/ Xxxxxxxxx Xxxxxxx
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SCHEDULE 1
DYADIC SOFTWARE LICENCE AND LIMITED WARRANTY
THIS LEGAL DOCUMENT IS AN AGREEMENT BETWEEN YOU THE END USER AND DYADIC SYSTEMS
LIMITED.
BY OPENING THIS PACKAGE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS
AGREEMENT, WHICH INCLUDES THE SOFTWARE LICENCE, LIMITED WARRANTY AND
ACKNOWLEDGEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, RETURN THE UNOPENED PACKAGE
TO THE PLACE WHERE YOU OBTAINED IT FOR A FULL REFUND,
In order to preserve and protect its rights under applicable law, DYADIC does
not sell any rights in DYADIC SOFTWARE. Rather DYADIC grants the right to use
DYADIC SOFTWARE by means of a SOFTWARE LICENCE. DYADIC specifically retains
title to all DYADIC computer software.
DYADIC SOFTWARE LICENCE
1. DEFINITIONS
a) 'DYADIC' means Dyadic Systems Limited, Riverside View, Xxxxxx Xxxx, Xxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX
b) 'SOFTWARE' means the development version of the computer program entitled
'Dyalog APL/W' which is supplied as the contents of the file DYALOG.EXE,
regardless of the form in which you subsequently use it.
c) 'COMPUTER' means the single computer on which you use the SOFTWARE.
2. GRANT OF LICENCE. In consideration of payment of the LICENCE fee which is a
part of the price you paid for this product, and your agreement to abide by the
terms and conditions of this Licence and the Limited Warranty, DYADIC, as
Licensor, grants you, the LICENSEE, the right to use this copy of the SOFTWARE
on a single COMPUTER.
DYADIC reserves all rights not expressly granted to LICENSEE.
3. COPY RESTRICTIONS. This SOFTWARE and the accompanying written materials are
the subject of copyright. Unauthorized copying of the SOFTWARE including
SOFTWARE which has been modified,
8
merged, or included with other software, or of the written materials is
expressly forbidden. You may be held legally responsible for any copyright
infringement which is caused or encouraged by your failure to abide by the terms
of this Licence.
Subject to the restrictions above you may make two (2) copies of the SOFTWARE
solely for backup purposes. You must reproduce and include the copyright notice
on the backup copies.
4. USE RESTRICTIONS. As the LICENSEE, you may physically transfer the SOFTWARE
from one computer to another provided that the SOFTWARE is used on only one
computer of a time. You may not electronically transfer the SOFTWARE from one
computer to another over a network. You may not distribute copies of the
SOFTWARE or accompanying written materials to others. You may not modify, adopt,
translate, reverse engineer, decompile, disassemble or create derivative works
based on the SOFTWARE.
5. TRANSFER RESTRICTIONS,. This SOFTWARE is licensed only to you. You may not
transfer assign, rent, lease, sell of otherwise dispose of the SOFTWARE on a
temporary or permanent basis without the prior written consent of DYADIC.
6. TERMINATION. This License is effective until terminated. This Licence will
terminate automatically without notice from DYADIC if you fail to comply with
any provision of to Licence. Upon termination you shall destroy or return to
DYADIC the written materials and all copies of the SOFTWARE, including modified
copies, if any.
LIMITED WARRANTY AND DISCLAIMER OF WARRANTY
DYADIC WARRANTS THAT THE DISKETTES SHALL BE FREE FROM DEFECTS IN MATERIAL AND
THAT THE INFORMATION THEY CONTAIN SHALL BE READABLE BY A PROPERLY FUNCTIONING
COMPUTER. THIS WARRANTY IS VALID ONLY IF YOU SIGN AND RETURN THE REGISTRATION
CARD TO DYADIC WITHIN TEN (10) DAYS FROM THE DATE OF PURCHASE. THIS WARRANTY
SHALL EXTEND FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE.
THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS (INCLUDING INSTRUCTIONS FOR USE)
ARE PROVIDED 'AS IS' WITHOUT WARRANTY AS TO THEIR PERFORMANCE, MERCRANTABILITY,
OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RESULTS AND PERFORMANCE.OF
THIS SOFTWARE IS ASSUMED BY YOU. DYADIC
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SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING
FROM THE USE OF THIS PRODUCT.
ACKNOWLEDGEMENT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENCE AND LIMITED WARRANTY, UNDERSTAND
THEM, AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.
DYALOG APL/W NO-CHARGE RUN-TIME SYSTEM LICENCE AMENDMENT to DYADIC SOFTWARE
LICENCE AGREEMENT.
BETWEEN
Dyadic Systems Limited of Riverside View, Basing Road, Old Basing, Basingstoke,
Hampshire, England, RG24 0AL, UK herein called the `Licensor'
AND
the undersigned, herein called the `Licensee'
DEFINITIONS
`Referenced Agreement' means the DYADIC SOFTWARE LICENCE which is printed on the
envelope containing the Program CD-ROM.
`Development System' means the development version of Dyadic's programming
language `Dyalog APL/W' which is subject to the Referenced Agreement.
`Run-Time System' means the run-time version of Dyadic's programming language
`Dyalog APL/W' which is supplied as the contents of the file DYALOGRT.EXE,
regardless of the form in which it is subsequently used.
`DLL' means the Dynamic Link Library version of Dyadic's programming language
`Dyalog APL/W' which is supplied as the contents of the file DYALOG.DLL,
regardless of the form in which it is subsequently used.
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`Components' means all other computer programs and data provided on the Program
CD-ROM but excluding the 'DLL', 'Run-Time System' and `Development System', i.e.
all files excluding DYALOG.DLL, DYALOG.EXE and DYALOGRT.EXE.
`Licensee's program' means one or more computer software programs developed by
the Licensee which incorporate the Components or portions thereof which may be
executed by the Development System or by the Run-Time System or by the DLL.
Whereas the Licensee may create a program which incorporates the Components or
portions thereof which may be executed by the Development System or by the
Run-Time System or by the DLL, and
Whereas Licensor is the holder of the intellectual property rights in the
Development System, Run-Time System, DLL and Components, and,
Whereas the Referenced Agreement limits use of the Development System to a
single computer and consequently limits use of Licensee's Program in conjunction
with the Development System to a single computer,
Now therefore the Licensor and the Licensee agree as follows:
a) The Licensor grants to Licensee the right to distribute the Run-Time
System and the Components as part of and only with Licensee's Program
for use by other parties on any number of computers subject to the
terms and conditions herein. Distribution of the Run-Time System and
Components in whole or in part in any other manner is expressly
prohibited. Notwithstanding the foregoing, said right to distribute the
Run-Time System and Components shall not be granted to Licensee where
Licensee" Program is, in the opinion of the Licensor, an application
generator or a program development system (including, but not limited
to a compiler or interpreter).
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b) If the Licensee's program may reasonably be considered to be an
application generator or a program development system, Licensee agrees
to request Licensor's advance consent in writing to their free
distribution under the terms of this agreement.
c) The Licence contained in this amendment is non-transferable,
royalty-free, and requires no accounting. d) The Licensor makes no
representation with respect to the adequacy of the Run-Time System or
Components as used in conjunction with Licensee's Program for any
particular purpose or with respect to their adequacy to produce any
particular result. The Licensor shall not be liable for loss or damage
arising from this Licence or the distribution or use of the Run-Time
System and Components with the Licensee's Program. In no event shall
the Licensor be liable for special, direct or consequential damages
(including economic loss), losses, costs, fees or expenses of any kind
or nature.
e) The Licensor disclaims all warranties, either express or implied,
including but not limited to implied warranties or merchantability and
fitness for a particular purpose, in respect of the Components as used
in Licensee's Program.
f) Licensee agrees to indemnify, hold harmless and defend Licensor, their
affiliates, successors and assigns from and against any claims or
lawsuits, including legal fees, arising from this Licence or the
distribution or use of Licensee" Program.
g) The Licensee is expressly prohibited from using the name, logo or
trademark of Licensor and their affiliates to promote Licensee's
program.
h) The Run-Time System contains an embedded notice of copyright which must
not be removed, suppressed, modified or otherwise altered.
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Schedule 2
DYADIC SUPPORT SERVICE
INTRODUCTION
DSS is a support and maintenance service for Dyalog APL/W users. DSS is
primarily an electronic service and requires access to the World Wide Web and/or
a TCP/IP connection.
DSS MEMBERSHIP SERVICES
TECHNICAL HELP AND ADVICE
DSS members may obtain technical advice and assistance on all aspects of Dyalog
APL/W usage (including run-time systems) by telephone and/or email. This service
includes help with coding and design problems, but is not intended to replace
the use of the printed and on-line documentation. All questions and requests for
advice will be answered immediately or within one working day.
ENHANCEMENTS
DSS members will have access to a steady stream of enhancements to Dyalog APL/W
as they are developed and implemented. Such enhancements will typically be
extensions and improvements to existing facilities and improvements in
performance and usability. Note that major new versions are not included with
standard DSS but will be offered as optional chargeable upgrades. The provision
of major new versions is however included with DSS+.
BUG REPORTING AND CORRECTION SERVICE
If a DSS member reports a bug, the bug will be recorded in the Bug System and
allocated a Bug Reference Number. A bug will only be recorded if Dyadic is able
to reproduce the fault and it is ultimately the responsibility of the customer
to provide the information necessary to do so. Once a bug is logged, Dyadic will
use its best efforts to correct the fault within 30 working days. You will
receive email notification when the bug has been corrected and a fix is
available via the Patch System.
INFORMATION SERVICE
The current list of outstanding bugs and fixes for each of the currently
supported versions of Dyalog APL/W is updated daily and is available exclusively
to DSS members from the Members section of the Dyadic web site or using the
Patch System.
In addition, DSS members may choose to receive daily notification by email of
newly reported bugs and/or fixes.
Versions Covered
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DSS is intended for customers running the latest versions of Dyalog APL/W and
the Patch Wizard workspace requires Version 7.3 or Version 8.1.
MEMBERS SECTION AT XXX.XXXXXX.XXX
The members section at xxx.xxxxxx.xxx is administered solely for DSS members.
Access to these pages requires your DSS user id and password. The members
section not only provides access to patches and bug lists, but is also intended
as a source of inside information of interest to Dyalog APL users.
PATCHES
DSS members have exclusive access to the Dyalog APL Patch system which
automatically updates a base copy of the Dyalog APL/W program to the latest
build.
DSS+ MEMBERSHIP SERVICES
MAJOR UPGRADES
Membership of DSS+ includes all of the benefits of DSS, but in addition provides
automatic upgrades to major new versions of Dyalog APL/W as and when they are
developed. Such upgrades will include the appropriate documentation and media
(CD-ROM).
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SCHEDULE 3
Under normal circumstances a nominated senior developer at each Adaytum site
will have access to DSS and will be expected to resolve issues before recourse
to Dyadic's Technical Support.
Where a question or request for advice is made to Dyadic and it cannot be
resolved within one working day, and the issue is considered by Adaytum to
require escalation, Dyadic will name a member of their development team to act
as the direct contact for the resolution of that particular fault or issue.
When such escalation is required, under normal circumstances it will relate to a
production problem and it will be sanctioned by either the European Development
Director or a nominated senior developer (initially Xxx Xxxxxxx). Dyadic will
provide names and contact telephone numbers to Adaytum for use in such
circumstances.
Development work may be carried out, at Adaytum's request, by mutual consent,
with timescales and arrangements for additional remuneration to be agreed by
both parties before the work commences.
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SCHEDULE 4
FORM OF COMMON STOCK PURCHASE WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE PROVISIONS OF ANY
APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED BY THE
REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON
STATUTORY EXEMPTIONS UNDER THE SECURITIES ACT, AND UNDER ANY APPLICABLE
STATE SECURITIES LAW. THESE SECURITIES AND THE SECURITIES ISSUED UPON
EXERCISE HEREOF MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED, NOR
MAY THIS WARRANT BE EXERCISED, EXCEPT IN ACCORDANCE WITH TERMS SET
FORTH IN THIS CERTIFICATE OR IN A TRANSACTION WHICH IS EXEMPT UNDER
PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT; AND IN THE
CASE OF AN EXEMPTION, ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF ANY SUCH SECURITIES.
ADAYTUM SOFTWARE, INC.
COMMON STOCK PURCHASE WARRANT
ADAYTUM SOFTWARE, INC., a Delaware corporation (the
"Company"), hereby agrees that, for value received, Dyadic Systems Limited (the
"Holder") or assigns, is
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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.,
Central Standard Time, on ____ , 2007, Twelve Thousand Five Hundred (12,500)
shares of the common stock of the Company, $0.01 par value (the "Common Stock"),
at a price per share of $4.00 USD, subject to adjustments as described herein.
1. EXERCISE OF WARRANT. The purchase rights exercisable under
this Warrant shall be exercised by the Holder surrendering this Warrant with the
Exercise Form attached hereto 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 in USD to the order of the Company, of the purchase
price payable in respect of the Common Stock being purchased. If less than all
of the Common Stock is purchased, the Company will, upon such exercise, execute
and deliver to the Holder hereof a new Warrant (dated the date hereof)
evidencing the number of shares of the Common Stock not so purchased. As soon as
practicable after the exercise of this Warrant and payment of the purchase
price, the Company will cause to be issued in the name of and delivered to the
Holder hereof, or as such Holder may direct (subject to the provisions of
Section 3 below), a certificate or certificates representing the shares
purchased upon such exercise. The Company may require that such certificate or
certificates contain on the face thereof a legend substantially as follows:
"The transfer of the shares represented by this certificate is
restricted pursuant to the terms of a Common Stock Purchase
Warrant dated April __, 2000, issued by Adaytum Software,
Inc., a copy of which is available for inspection at the
offices of Adaytum, Inc. Transfer may not be made except in
accordance with the terms of the Common Stock Purchase
Warrant. In addition, no sale, offer to sell or transfer of
the shares represented by this certificate shall be made
unless a Registration Statement under the Securities Act of
1933, as amended, and applicable state laws with respect to
such shares is then in effect or exemptions from the
registration requirements of such Act and applicable state
laws are available."
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No fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but the Company shall pay a cash adjustment in respect
of any fraction of a share which would otherwise be issuable in an amount equal
to the same fraction of the fair market value per share of Common Stock on the
day of exercise as determined in good faith by the Company, less the exercise
price that would have otherwise been paid for such fractional share. The shares
purchased on exercise of this Warrant shall be deemed to be issued as of the
close of business on the date on which this Warrant has been exercised by
payment of the purchase price. The exercise of this Warrant or any portion
hereof shall only be effective at such time that the issuance and sale of shares
of the Company's Common Stock pursuant to such exercise will not violate any
applicable securities or other laws.
1.1. EXERCISE UPON LIQUIDATING EVENT. This Warrant
will, without any decision or action from the Holder, be exercised under this
Section 1 upon a Liquidating Event and upon the following conditions:
1.1.1. EVENT NOTICE. The Company will give
the Holder at least 30 days' prior notice describing such Liquidating Event, the
consideration to be received by holders of Common Stock, the anticipated closing
date of such Liquidating Event (the "Anticipated Closing Date") and other
information reasonably required to decide whether to exercise or forfeit the
Warrant.
1.1.2. FORFEIT NOTICE. Investor will instead
forfeit the Warrant if Investor gives the Company notice of its intent to
forfeit at least five days before the Anticipated Closing Date.
1.1.3. LIQUIDATING Event DEFINED.
"Liquidating Event," as such term is used in this Warrant, means (1) the sale of
all or substantially all of the Company's securities or assets to a
non-affiliate of the Company; (2) a public offering of Common Stock
18
which is registered with the Securities and Exchange Commission; or (3) any
transaction, including without limitation the closing of an offering of
securities of the Company, which results upon its closing in a net cash inflow
to the Company of at least $20,000,000.00 USD.
2. ADJUSTMENT OF PURCHASE PRICE, REORGANIZATION, ETC. In the
event the Company shall at any time hereafter subdivide or combine its
outstanding shares of Common Stock, or declare a dividend payable in Common
Stock, the exercise price in effect immediately prior to the subdivision,
combination or record date for such dividend payable in Common Stock shall
forthwith be proportionately increased, in the case of combination, or
proportionately decreased, in the case of subdivision or declaration of a
dividend payable in Common Stock, and each share of Common Stock purchasable
upon exercise of this Warrant shall be changed to the number determined by
dividing the then current exercise price by the exercise price as adjusted after
such subdivision, combination or dividend payable in Common Stock.
In the event of any capital reorganization or any
reclassification of the shares of Common Stock of the Company, or in the case of
any consolidation with or merger of the Company into or with another
corporation, or the sale of all or substantially all of its assets to another
corporation effected in such a manner that the holders of common shares shall be
entitled to receive stock, securities or assets with respect to or in exchange
for Common Stock, then, as a part of such reorganization, reclassification,
consolidation, merger or sale, as the case may be, lawful provision shall be
made so that the Holder of this Warrant shall have the right thereafter to
receive, upon the exercise hereof, the kind and amount of shares of stock or
other securities or property which the Holder would have been entitled to
receive if, immediately prior to such reorganization, reclassification,
consolidation, or merger or sale, the Holder had held the number of shares of
Common Stock which were then purchasable upon the exercise of this Warrant. In
any such event, appropriate adjustment (as determined in good faith by the Board
of Directors of the Company) shall be made in the application of the
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provisions set forth herein with respect to the rights and interest thereafter
of the Holder of this Warrant, to the end that the provisions set forth herein
(including provisions with respect to 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.
3. TRANSFERABILITY; SECURITIES LAWS MATTERS. Neither the
issuance and sale of this Warrant nor the issuance and sale of shares of Common
Stock of the Company issuable upon exercise of this Warrant have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws. Prior to making any disposition of this Warrant or of any
Common Stock purchased or purchasable upon exercise of this Warrant, the Holder
will give written notice to the Company describing briefly the manner of any
such proposed disposition. The Holder will not make any such disposition until
(i) the Company has notified the Holder that, in the opinion of its counsel,
registration under the Securities Act and applicable state laws is not required
with respect to such disposition, or (ii) appropriate registrations covering the
proposed disposition have been filed by the Company and have become effective.
The Company agrees that, upon receipt of written notice from a Holder with
respect to such proposed transfer or disposition, it will use its best efforts,
in consultation with such Holder's counsel, to ascertain as promptly as possible
whether or not registration is required and will advise the Holder promptly with
respect thereto.
The Company has no obligation to file any registrations under
the Securities Act, as amended, or applicable state laws, nor in the event of
any such registration, to include this Warrant or the shares of Common Stock
purchased or purchasable hereunder in any such registration statement.
The Company shall have no obligation to recognize any transfer
of this Warrant or the Common Stock purchased upon exercise of this Warrant
which is not made in
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compliance with this provision. Until the Warrant or the Common Stock purchased
hereunder is transferred on the books of the Company, the Company may treat the
Holder as the absolute owner hereof and thereof for all purposes without being
affected by any notice to the contrary.
Holder hereby represents and agrees that any securities
acquired upon exercise of this Warrant will be acquired for long-term investment
purposes and not with the view toward distribution or sale thereof in a public
offering within the meaning of the Securities Act.
4. RESERVATION OF COMMON STOCK. A number of shares of Common
Stock sufficient to provide for the exercise of the Warrant upon the basis
herein set forth shall at all times be reserved for the exercise thereof.
5. NO RIGHTS AS STOCKHOLDER. This Warrant shall not entitle
the Holder to any voting rights or other rights as a stockholder of the Company.
6. MISCELLANEOUS. The Company will not, by amendment of its
Certificate of Incorporation or through reorganization, consolidation, merger,
dissolution or sale of assets, or by any other voluntary act or deed, avoid or
seek to avoid the observance or performance of any of the covenants,
stipulations or conditions to be observed or performed hereunder by the Company,
but will at all times in good faith assist, insofar as it is able, in the
carrying out of all provisions hereof and in the taking of any other action
which may be necessary in order to protect the rights of the Holder hereof.
The provisions of Section 3 hereof shall survive the exercise
of this Warrant.
All shares of Common Stock or other securities issued upon the
exercise of the Warrant shall be validly issued, fully paid and nonassessable.
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Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
IN WITNESS WHEREOF this Warrant been duly executed by Adaytum
Software, Inc., the __ day of ____, 2000.
ADAYTUM SOFTWARE, INC.
By:_______________________________
Its:______________________________
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EXERCISE FORM
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
To Adaytum Software, Inc.:
The undersigned, the holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder * shares of common stock of Adaytum Software,
Inc., and herewith makes payment of $________________ therefor, and requests
that the certificate(s) for such shares be issued in the name of, and be
delivered to
, whose address is
.
Dated: __________________________ ____________________________________
(Signature must conform in all
respects to the name of holder
as on the face of the Warrant)
------------------------------------
(Address)
-----------------------------------
(Address - City - State - ZIP)
*Insert here all or such portion of the number of shares called for on the face
of the within warrant with respect to which the Holder desires to exercise the
purchase right represented thereby, without adjustment for any other or
additional stock, other securities, property or cash which may be deliverable on
such exercise.
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ASSIGNMENT FORM
(TO BE SIGNED ONLY UPON TRANSFER OF THE WARRANT)
For value received, the undersigned hereby sells, assigns and
transfers unto __________ the right represented by the foregoing Warrant to
purchase _______________ of the shares of common stock of Adaytum Software, Inc.
to which the foregoing Warrant relates, and appoints any attorney to transfer
said right on the books of Adaytum Software, Inc., with full power of
substitution in the premises.
Dated: __________________________ ____________________________________
(Signature must conform in all
respects to the name of holder
as on the face of the Warrant)
------------------------------------
(Address)
-----------------------------------
(Address - City - State - ZIP)
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