Exhibit 4.10
Certificate No: 103
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 277,778 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Rhone Venture Capital Limited of Columbus Center
Building, Road Town, Tortola, British Virgin Islands is the registered holder of
a warrant to subscribe for 277,778 ordinary shares of 15 pence each in Gentia
Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 22nd November 1999.
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
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/s/ Nicholas P.S. Bray Director/Secretary
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IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 22nd November 2006 by completion of the Notice of
Exercise set out below and lodgement of this Certificate at the then
registered office of the Company together with the appropriate payment.
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
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We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
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** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
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TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 22nd November 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Rhone Venture Capital Limited of Columbus
Center Building, Road Town, Tortola, British Virgin Islands;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2. This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 22nd November 2006 PROVIDED THAT if at any time
this Warrant has been exercised in respect of three fifths or more of
the ordinary shares which are the subject of this Warrant the Company
may by thirty days' written notice to the Registered Holder may require
it to exercise this Warrant in respect of any remaining shares the
subject thereof. At midnight on the said date or after the expiration
of the said notice (whichever is earlier) this Warrant shall become
null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per
Ordinary Share.
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5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
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(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
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(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
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(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
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