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Exhibit 4.5
NEITHER THIS WARRANT FOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE
SECURITIES LAWS. NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR
SAID SHARES MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO, OR (ii) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
COUNSEL TO THE COMPANY, THAT AN EXEMPTION FROM REGISTRATION UNDER SAID ACT
AND APPLICABLE STATE SECURITIES LAWS IS AVAILABLE.
Warrant No. STOCK PURCHASE WARRANT No. of Shares 17,700
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To Subscribe for and Purchase Common Stock of
CONNECTED CORPORATION
THIS CERTIFIES that, for value received, Sandpiper Software Consulting, LLC
(together with any subsequent transferees of all or any portion of this Warrant,
the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, to subscribe for and purchase from CONNECTED CORPORATION,
a Delaware corporation (hereinafter called the "Company"), at the price
hereinafter set forth in Section 2, up to Seventeen Thousand Seven Hundred
(17,700) fully paid and non-assessable shares (the "Shares") of the Company's
Common Stock, $.001 par value per share (the "Common Stock").
Andrew Swart ("Swart") and David Farber ("Farber"), principal owners of the
Holder, and the Company have as of the date of this Warrant entered into
Non-Competition Agreements (the "Non-Competition Agreements") under which such
persons have agreed, among other things, not to compete with the Company, all as
described in such Agreement.
This Warrant is being issued as consideration for Swart and Farber's
entering into the Non-Competition Agreements, and the Company has, at the
request of Swart and Farber, issued this Warrant to Sandpiper.
1. DEFINITIONS. As used herein the following term shall have the following
meaning: "Act" means the Securities Act of 1933, as amended, or a successor
statute thereto and the rules and regulations of the Securities and Exchange
Commission issued under that Act, as they each may, from time to time, be in
effect.
2. PURCHASE RIGHTS. Subject to this Section 2, the purchase rights
represented by this Warrant shall be exercisable by the Holder in whole or in
part, in thirty six (36) equal monthly installments, commencing on the date
hereof, provided that the first six (6) monthly installments will not be
exercisable until six (6) months after the date hereof.
Subject to this Section 2, this Warrant may be exercised for Shares at a
price of forty cents ($0.40) per share, subject to adjustment as provided in
Section 6 (the "Warrant Purchase Price").
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Subject to the terms hereof, the purchase rights represented by this
Warrant shall expire on June 12, 2001.
If the Board of Directors determines in the good faith and reasonable
exercise of its judgment and notifies the Holder that there has been a breach of
the Non-Competition Agreement or that the Non-Competition Agreement has been
held to be unenforceable by a court of competent jurisdiction, then the Holder
shall have the right, for the 90 day period following the date of notice of
breach or unenforceability, to exercise this Warrant as to all shares with
respect to which the Holder could exercise this Warrant on the date of such
notice. Following the expiration of such 90 day period, the Holder shall have no
further rights hereunder.
The Holder shall not, during the term of the Non-Competition Agreement,
sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by
operation of law or otherwise ("transfer"), any of the purchase rights
represented by this Warrant Agreement, or any interest therein. If any transfer
of the purchase rights represented by this Warrant is made or attempted contrary
to the provisions of this Agreement, the purchase rights represented by this
Warrant shall simultaneously terminate without further action on the part of the
Company, the Holder or any transferee, and neither the Holder nor any transferee
shall have any further rights hereunder. In addition to any other legal or
equitable remedies which it may have, the Company may enforce its rights by
actions for specific performance (to the extent permitted by law).
This Warrant shall terminate, and no rights hereunder may be exercised,
after the expiration of the applicable exercise period.
1. EXERCISE OF WARRANT. Subject to Section 2 above, the purchase rights
represented by this Warrant may be exercised, in whole or in part and from time
to time (but not more than two times during any 12 month period), by the
surrender of this Warrant and the duly executed Notice of Exercise (the form of
which is attached as Exhibit A) at the principal office of the Company and by
the payment to the Company, by check, of an amount equal to the then applicable
Warrant Purchase Price per share multiplied by the number of Shares then being
purchased. Upon exercise, the Holder shall be entitled to receive, within a
reasonable time, a certificate or certificates, issued in the Holder's name or
in such name or names as the Holder may direct, for the number of Shares so
purchased. The Shares so purchased shall be deemed to be issued as of the close
of business on the date on which this Warrant shall have been exercised.
2. SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company covenants that
the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance in accordance herewith, be fully
paid and non-assessable, and free from all liens and charges with respect to the
issue thereof. During the period within which the purchase rights represented by
the Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. NO FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by
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the fair market value of such shares of Common Stock, as determined in good
faith by the Company's Board of Directors.
6. ADJUSTMENTS OF WARRANT PURCHASE PRICE AND NUMBER OF SHARES. If there
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is not
the surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this Warrant, and the number and kind of shares and the price per share then
applicable to shares covered by the unexercised portion of this Warrant.
7. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased. Upon valid
exercise of this Warrant and payment for the Shares so purchased in accordance
with the terms of the Warrant, the Holder or the Holder's designee, as the case
may be, shall be deemed a shareholder of the Company.
8. SALE OR TRANSFER OF THE WARRANT AND THE SHARES: LEGEND. The Warrant and
the Shares underlying the Warrant shall not be sold or transferred unless either
(i) they first shall have been registered under the Act and applicable State
Securities laws, or (ii) the Company first shall have been furnished with an
opinion of legal counsel satisfactory to the Company to the effect that such
sale or transfer is exempt from the registration requirements of the Act and
applicable State Securities laws. Each certificate representing any Warrant
shall bear the legend set out on page 1 hereof. Each certificate representing
any Shares shall bear a legend substantially in the following form:
"The shares represented by this certificate have no been registered under
the Securities Act of 1933, as amended or state securities laws and may not
be sold, transferred or otherwise disposed of in the absence of an
effective registration statement under such Act and such laws or an opinion
of counsel satisfactory to the corporation to the effect that such
registration is not required."
Such Warrant and Shares may be subject to additional restrictions on
transfer imposed under applicable state and federal securities law.
9. RESERVED.
10. RESERVED.
11. MODIFICATIONS AND WAIVERS. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
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12. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the Holder or the Company shall be delivered, or
shall be sent by certified or registered mail, postage prepaid, to the Holder at
its address shown on the books of the Company or in the case of the Company, at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
13. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of any such loss, theft
or destruction, of an indemnity or security reasonably satisfactory to it, and
upon reimbursement to the Company of all reasonable expenses incidental thereto,
and upon surrender and cancellation of this Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
14. REPRESENTATIONS AND WARRANTIES OF HOLDER. By accepting this Warrant,
the Holder represents and warrants that he, she or it is acquiring this Warrant
and the Shares for his, her or its own account, for investment and not with a
view to, or for sale in connection with, any distribution thereof or any part
thereof. Holder represents and warrants that he, she or it (a) is experienced in
the evaluation of businesses similar to the Company, (b) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Company, (c) has the ability to bear
the economic risks of an investment in the Company, (d) has been furnished with
or has had access to such information as he/she has requested, and (e) has been
afforded the opportunity to ask questions of and to receive answers from the
officers of the Company and to obtain any additional information necessary to
make an informed investment decision with respect to an investment in the
Company.
15. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets.
16. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the Commonwealth of Massachusetts, other than the choice of law provisions
thereof.
IN WITNESS WHEREOF, CONNECTED CORPORATION has caused this Warrant to be
executed under seal by its officer thereunto duly authorized.
ORIGINAL ISSUANCE DATE: AS OF June 12, 1996
CONNECTED CORPORATION
CORPORATE /s/ David A. Cane
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By: David A. Cane, President
Address: 63 Fountain Street
Framingham, MA 01701
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EXHIBIT A
NOTICE OF EXERCISE
To: CONNECTED CORPORATION
1. The undersigned hereby elected to purchase ----------- shares of Common
Stock of CONNECTED CORPORATION pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares. The undersigned further represents that such shares shall not be sold or
transferred unless either (1) they first shall have been registered under the
Securities Act of 1933, as amended, and applicable State Securities laws or (ii)
the Company first shall have been furnished with an opinion of legal counsel
reasonably satisfactory to the Company to the effect that such sale or transfer
is exempt from applicable registration requirements.
4. The undersigned acknowledges that the shares issuable to the
undersigned pursuant to this Notice of Exercise are subject to restrictions on
transfer, all as provided in the attached Warrant.
5. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
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