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.
WARRANT NO.
Adaytum Software, Inc.
COMMON STOCK PURCHASE WARRANT
TO PURCHASE 4,266 SHARES OF COMMON STOCK
Adaytum Software, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, Data Sales Co., Inc., a Minnesota
corporation, or its successors, assigns or affiliates is entitled, subject to
the terms set forth below, to purchase from the Company for a period of time as
provided in Section 20 (or such earlier date as provided in Section 15 hereof),
four thousand two hundred sixty six (4,266) fully paid and non-assessable shares
of Common Stock of the Company, at the price per share (the "Purchase Price")
equal to $5.86. The number and character of such shares of Common Stock and the
Purchase Price are subject to adjustment as provided herein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" includes any corporation which
shall succeed to or assume the obligations of the Company hereunder.
(b) The term "Common Stock" means the Common Stock, par
value of $.001 per share, of the Company, together with all stock of
any class or classes (however designated) of the Company, authorized
upon the Original Issue Date or thereafter, the holders of which shall
have the right, without limitation as to amount, either to all or to a
share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled
to preference, and the holders of which shall ordinarily, in the
absence of contingencies, be entitled to vote for the election of a
majority of directors of the Company (even though the right so to vote
has been suspended by the happening of such a contingency).
(c) The term "Other Securities" refers to any stock
(other than Common Stock) and other securities of the Company or any
other person (corporate or otherwise) which the holders of the Warrants
at anytime shall be entitled to receive, or shall have received, upon
the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued
in exchange for or in replacement of Common Stock or Other Securities
pursuant to Section 5 or otherwise.
(d) The term "Securities Act" means the Securities Act of
1933 as the same shall be in effect at the time.
(e) The term "Purchase Price per share" shall be the then
applicable purchase price for one Common Share as adjusted pursuant to
Sections 4 and 5 hereof.
(f) The term "Market Value" means, as of a particular
date, (i) the average of the high and low bid prices for the Company's
Common Stock, as reported by the National Quotation Bureau,
Incorporated, or, if the Company's Common Stock is listed on any
recognized exchange, the closing bid price for such shares, or (ii) if
the closing sale price for the Company's Common Stock is reported in
either of the foregoing quotation systems or if the principal trading
market is a national securities exchange, the closing sale price or,
(iii) if neither (i) or (ii) is available with regard to the Common
Stock, such fair value as shall be the greater of that determined in a
reasonable manner by the Board of Directors of the Company (including
pricing of warrants or stock pursuant to a financing) or the last debt
or equity infusion involving the issuance of warrants or Common Stock
or Other Securities.
1. SALE OR EXERCISE WITHOUT REGISTRATION. If, at the time of any
exercise, permitted transfer or surrender for exchange of a Warrant or of Common
Stock or Other Securities previously issued upon the exercise of Warrants, such
Warrant or Common Stock (or Other Securities) shall not be registered under the
Securities Act, the Company may require, as a condition of allowing such
exercise, transfer or exchange, that the holder or transferee of such Warrants,
Common Stock or Other Securities, as the case may be, furnish to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect that
such exercise, transfer or exchange may be made without registration under the
Securities Act, provided that the disposition thereof shall at all times be
within the control of such holder or transferee, as the case may be. The holder
of the Warrants represents to the Company that it is acquiring the Warrants for
investment and not with a view to the distribution thereof.
2. EXERCISE OF WARRANT: PARTIAL EXERCISE.
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2.1 EXERCISE IN FULL. Subject to the provisions of
Section 1, this Warrant may be exercised in full by the holder hereof
by surrender of this Warrant, with the form of subscription attached
hereto duly executed by such holder, to the Company's stock transfer
agent, accompanied by payment, in cash or by certified or official bank
check payable to the order of the Company, in the amount obtained by
multiplying the number of Common Stock called for on the face of this
Warrant (without giving effect to any adjustment therein) by the
Purchase Price. In addition, Holder shall be entitled to a cashless
transaction by tendering that number of shares for cancellation which
then represents the exercise price then due and owing to the Company,
based on the Market Value of the Company's common stock. Furthermore,
the Company shall be responsible to pay all expenses, taxes and other
legal, financial, accounting and other fees and charges payable or
incurred by Holder in connection with the exercise of this Warrant,
including, but not limited to, all fees and charges in connection with
the preparation, execution and delivery of stock certificates issuable
upon exercise of this Warrant.
2.2 PARTIAL EXERCISE. Subject to the provisions hereof,
this Warrant may be exercised in part by surrender of this Warrant in
the manner and at the place provided in Section 2.1 hereof, except that
the amount payable by the holder upon any partial exercise shall be the
amount obtained by multiplying (a) the number of Common Stock (without
giving effect to any adjustment therein) designated by the holder in
the subscription attached hereto by (b) the Purchase Price. Upon any
such partial exercise, the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or
Warrants of like tenor, in the name of the holder hereof or as such
holder (upon payment by such holder of any applicable transfer taxes)
may request, calling, in the aggregate on the face or faces thereof,
for the number of Common Stock equal (without giving effect to any
adjustments required under the terms of this Warrant) to the number of
such shares called for on the face of this Warrant minus the number of
such shares designated by the holder in the form of subscription
attached hereto.
2.3 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at
the time of any exercise of this Warrant, upon the request of the
holder hereof, acknowledge in writing its continuing obligation to
afford to such holder any rights to which such holder shall continue to
be entitled after such exercise in accordance with the provisions of
this Warrant, PROVIDED that if the holder of this Warrant shall fail to
make any such request, such failure shall not affect the continuing
obligation of the Company to afford such holder any such rights.
3. DELIVERY OF STOCK CERTIFICATES, ETC., ON EXERCISE. As soon as
practicable after the exercise of this Warrant in full or in part but not later
than five (5) business days, and in any event within three days thereafter, the
Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the holder hereof
(upon payment by such holder of any applicable transfer taxes) a certificate or
certificates for the number of fully paid and non-assessable Common Stock to
which such holder shall be entitled upon
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such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current Market Value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 4 hereof or otherwise.
4. ADJUSTMENT FOR DIVIDENDS IN OTHER STOCK OR PROPERTY, ETC.,
RECLASSIFICATION, ETC. In case at any time or from time to time after the
Original Issue Date the holders of Common Stock (or Other Securities) shall have
received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive, without
payment therefor
(a) other or additional stock or other securities or
property (other than cash) by way of dividend; or
(b) any cash paid or payable (including, without
limitation, by way of dividend), except out of earned surplus of the
Company; or
(c) other or additional (or less) stock or other
securities or property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or similar
corporate rearrangement;
then, and in each such case the holder of this Warrant, upon the exercise hereof
as provided in Section 2 hereof, shall be entitled to receive the amount of
stock and other securities and property (including cash in the cases referred to
in subdivisions (b) and (c) of this Section 4 which such holder would hold on
the date of such exercise if on the Original Issue Date he had been the holder
of record of the number of Common Stock called for on the face of this Warrant
and had thereafter, during the period from the Original Issue Date to and
including the date of such exercise, retained such shares and all such other or
additional (or less) stock and other securities and property (including cash, in
the cases referred to in subdivisions (b) and (c) of this Section 4 receivable
by him as aforesaid during such period, giving effect to all adjustments during
such period required by Section 5 hereof.
5. REORGANIZATION, CONSOLIDATION. MERGER, ETC. In case the
Company after the Original Issue Date shall (a) effect a reorganization, (b)
consolidate with or merge with or into any other person, or (c) transfer all or
substantially all of its properties or assets to any other person under any plan
or arrangement contemplating the dissolution of the Company, then, in each such
case, the holder of this Warrant, upon the exercise thereof as provided in
Section 2 hereof at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall be entitled to receive (and the Company shall be entitled to
deliver), in lieu of the Common Stock (or Other Securities) issuable upon such
exercise prior to such consummation or such effective date, the stock and other
securities and property (including cash) to which such holder would have been
entitled upon such consummation or in connection with such dissolution, as the
case may be, if such holder had so exercised this Warrant immediately prior
thereto, all subject to further adjustment thereafter as provided in Section 4
hereof.
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6. FURTHER ASSURANCES. The Company covenants and agrees that:
(a) All Shares to be issued upon the exercise of this
Warrant, will, upon issuance, be duly authorized and issued, fully
paid, nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof; and
(b) During the period within which this Warrant may be
exercised, the Company will at all times have authorized, and reserved
for the purpose of issue or transfer upon exercise of this Warrant, a
sufficient number of Shares to provide for the exercise of this
Warrant.
7. OFFICER'S CERTIFICATE AS TO ADJUSTMENTS. In each case of any
adjustment or readjustment in the Common Stock (or Other Securities) issuable
upon the exercise of the Warrant, the Company at its expense will promptly
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate, executed by its chief financial or
accounting officer, setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based, and the
number of Common Stock outstanding or deemed to be outstanding. The Company will
forthwith mail a copy of each such certificate to each holder of a Warrant.
8. NOTICES OF RECORD DATE, ET C. In the event of
(a) any taking by the Company of a record of the holders
of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a cash
dividend payable out of earned surplus of the Company) or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right; or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any transfer of all or substantially all the assets of the
Company to or consolidation or merger of the Company with or into any
other person; or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then and in each such event the Company will mail or cause to be mailed to each
such holder of a Warrant a notice specifying (i) the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right,
and (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any, as of which the holders of
record of Common Stock (or Other
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Securities) shall be entitled to exchange their shares of Common Stock (or Other
Securities) for securities or other property deliverable upon such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be mailed at
least 15 days prior to the date therein specified-
9. REDEMPTION RIGHTS. In the event the Company fails to file a
Registration Statement with the Securities and Exchange Commission on or before
March 16, 2005, then, the Holder of this Warrant shall be entitled, at any time
thereafter, in its sole discretion, to require that the Company repurchase this
Warrant, or any part hereof, at the redemption price of $5.86 per Share of the
Company's Common Stock, at the time of such redemption.
10. EXCHANGE OF WARRANTS. Subject to the provisions of Section 1
hereof, upon surrender for exchange of any Warrant, property endorsed to the
Company, the Company at its own expense will issue and deliver to the holder
thereof a new Warrant or Warrants of like tenor, in the name of such holder
(upon payment by such holder of any applicable transfer taxes) calling in the
aggregate on the face or faces thereof for the number of Common Stock called for
on the face or faces of the Warrant or Warrants so surrendered.
11. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
any Warrant and, in the case of any such loss, theft or destruction, upon
delivery of any indemnity agreement reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
12. WARRANT AGENT. The Company may, by written notice to each
holder of a Warrant, appoint an agent for the purpose of issuing Common Stock
(or Other Securities) upon the exercise of the Warrants pursuant to Section 2
hereof, exchanging Warrants pursuant to Section 12 hereof, and replacing
Warrants pursuant to Section 12 hereof, and replacing Warrants pursuant to
Section 13 hereof, or any of the foregoing, and thereafter any such issuance,
exchange or replacement, as the case may be, shall be made at such office by
such agent.
13. LIMITED TRANSFERABILITY OF WARRANT; ACCELERATED EXPIRATION
DATE. The holder agrees that this Warrant may not be sold, transferred, pledged,
hypothecated, or otherwise disposed of except in compliance with the Securities
Act and applicable state securities laws as set forth on the cover page hereof
("Permitted Transfer").
14. LEGEND. Upon exercise of any of the Warrants and the issuance
of any of the Common Stock, or Other Securities pursuant thereto all
certificates representing Common Stock or Other Securities shall bear on the
face thereof substantially the following legend, insofar as is consistent with
Florida laws:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, offered for sale, assigned, transferred or
otherwise disposed of, unless registered pursuant to the
provisions of that Act or unless a written opinion of counsel
is delivered to the Company stating that such disposition is
in compliance with an available exemption from such
registration, which opinion and counsel shall be reasonably
acceptable to the Company.
15. REMEDIES. The Company stipulates that the remedies at law of
the holder of this Warrant in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
16. NOTICES, ETC. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid, at such address as may have been furnished
to the Company in writing by such holder.
17. MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of Florida. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof.
18. WARRANT EXPIRATION DATE. This Warrant may be exercisable at
any time until 6:00 p.m., central standard time on March 28, 2007, seven years
from the date of this Warrant.
Dated: March 30 , 2000 Adaytum Software, Inc.
------
By: /s/ J.D. Guy Haddleton
------------------------------
Its: President
-----------------------------
Attest: /s/ Mike Mehr
--------------------------
Attest: /s/ Jon Oberle
--------------------------
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ASSIGNMENT FORM
(To be executed only upon the
assignment of Warrant)
FOR VALUE RECEIVED the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ______________________________
whose address is ___________________________________all of the rights of the
undersigned under the within Warrant, with respect to _____________________
Common Stock of ______ ___________________ and, if such Common Stock do not
include all the Common Stock issuable as provided in the Warrant, that a new
Warrant of like tenor for the number of Common Stock not being transferred
hereunder be issued in the name of and delivered to the undersigned, and does
hereby irrevocably constitute and appoint ____________________ Attorney to
register such transfer on the books of ___________________ maintained for the
purpose, with full power of substitution in the premises.
Dated: ___________________2000.
____________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
Signature Guaranteed
____________________________________________
____________________________________________
(Address)
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: ___________________________________
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder,_____________________ Common Stock of _____________________,
and herewith makes payment of $____________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to,
________________________________ whose address is___________________________. If
the Common Stock being purchased hereby do not include all the Common Stock
issuable as provided in the Warrant, that a new Warrant for the number of Common
Stock not being purchased hereunder be issued in the name of and delivered to
the undersigned.
Dated: ______________________, 2000.
____________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
Signature Guaranteed
____________________________________________
____________________________________________
(Address)
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