Exhibit 10.2
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED, OR OTHERWISE DISPOSED OF, EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
Warrant No. _____
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
ACCELR8 TECHNOLOGY CORPORATION
THIS CERTIFIES that, for value received, _______ is entitled to purchase
from ACCELR8 TECHNOLOGY CORPORATION, a Colorado corporation (the "Corporation"),
subject to the terms and conditions hereof, ______ shares (the "Warrant Shares")
of common stock, no par value (the "Common Stock"). This warrant, together with
all warrants hereafter issued in exchange or substitution for this warrant, is
referred to as the "Warrant" and the holder of this Warrant is referred to as
the "Holder." The number of Warrant Shares is subject to adjustment as
hereinafter provided. Notwithstanding anything to the contrary contained herein,
this Warrant shall expire at 5:00pm Mountain Daylight Time on ______, ____ (the
"Termination Date").
1. Exercise of Warrants. The Holder may, at any time prior to the
Termination Date, exercise this Warrant in whole or in part at an exercise price
per Warrant Share equal to $1.00 per share, subject to adjustment as provided
herein (the "Exercise Price"), by the surrender of this Warrant (properly
endorsed) at the principal office of the Corporation, or at such other agency or
office of the Corporation in the United States of America as the Corporation may
designate by notice in writing to the Holder at the address of such Holder
appearing on the books of the Corporation, and by payment to the Corporation of
the Exercise Price in lawful money of the United States by cashiers check or
wire transfer for each Warrant Share being purchased. Upon any partial exercise
of this Warrant, there shall be executed and issued to the Holder a new Warrant
in respect of the Warrant Shares as to which this Warrant shall not have been
exercised. In the event of the exercise of the rights represented by this
Warrant, a certificate or certificates for the Warrant Shares so purchased, as
applicable, registered in the name of the Holder, shall be delivered to the
Holder hereof within five (5) business days after the Corporation has received
the Holder's Warrant Exercise Form and payment of the Exercise Price, and the
Holder hereof shall be deemed for all purposes to be the holder of the Warrant
Shares so purchased as of the date of such exercise.
2. Reservation of Warrant Shares. The Corporation agrees that, prior to the
expiration of this Warrant, it will at all times have authorized and in reserve,
and will keep available, solely for issuance or delivery upon the exercise of
this Warrant, the number of Warrant Shares as from time to time shall be
issuable by the Corporation upon the exercise of this Warrant.
3. No Stockholder Rights. This Warrant shall not entitle the holder hereof
to any voting rights or other rights as a stockholder of the Corporation.
4. Transferability of Warrant. Prior to the Termination Date and subject to
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Corporation by
the Holder in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed for
transfer. Any registration rights to which this Warrant may then be subject
shall be transferred together with the Warrant to the subsequent purchaser.
5. Certain Adjustments. With respect to any rights that Holder has to
exercise this Warrant and convert into shares of Common Stock, Holder shall be
entitled to the following adjustments:
(a) Merger or Consolidation. If at any time there shall be a merger or
a consolidation of the Corporation with or into another corporation when the
Corporation is not the surviving corporation, then, as part of such merger or
consolidation, lawful provision shall be made so that the holder hereof shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the aggregate Exercise Price then in
effect, the number of shares of stock or other securities or property (including
cash) of the successor corporation resulting from such merger or consolidation,
to which the holder hereof as the holder of the stock deliverable upon exercise
of this Warrant would have been entitled in such merger or consolidation if this
Warrant had been exercised immediately before such merger or consolidation. In
any such case, appropriate adjustment shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
holder hereof as the holder of this Warrant after the merger or consolidation.
(b) Reclassification, Recapitalization, etc. If the Corporation at any
time shall, by subdivision, combination or reclassification of securities,
recapitalization, automatic conversion, or other similar event affecting the
number or character of outstanding shares of Common Stock, or otherwise, change
any of the securities as to which purchase rights under this Warrant exist into
the same or a different number of securities of any other class or classes, this
Warrant shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities that were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change.
(c) Split or Combination of Common Stock and Stock Dividend. In case
the Corporation shall at any time subdivide, redivide, recapitalize, split
(forward or reverse) or change its outstanding shares of Common Stock into a
greater number of shares or declare a dividend upon its Common Stock payable
solely in shares of Common Stock, the Exercise Price shall be proportionately
reduced and the number of Warrant Shares proportionately increased. Conversely,
in case the outstanding shares of Common Stock of the Corporation shall be
combined into a smaller number of shares, the Exercise Price shall be
proportionately increased and the number of Warrant Shares proportionately
reduced.
(d) Issuances of Additional Shares of Stock. If at any time prior to
the exercise of this Warrant, the Corporation shall offer, sell, grant any
option to purchase or offer, sell or grant any right to reprice its securities,
or otherwise dispose of or issue (or announce any offer, sale, grant or any
option to purchase or other disposition), Additional Shares of Common Stock (as
hereinafter defined) without consideration or for a consideration per share less
than the Exercise Price in effect immediately prior to such issuance or sale,
then forthwith upon the occurrence of any such event (the "Dilutive Issuance")
the Exercise Price shall be reduced to a price (computed to the nearest cent)
determined by dividing (i) the sum of (x) the product derived by multiplying the
Conversion Price in effect immediately prior to such issue or sale by the number
of shares of Common Stock outstanding immediately prior to such issue or sale
plus (y) the consideration, if any, received by the Corporation upon such issue
or sale, by (ii) the number of shares of Common Stock outstanding immediately
after such issue or sale. The Corporation shall notify the Holder in writing, no
later than three trading days following the issuance of any Common Stock or
Common Stock Equivalents subject to this section, indicating therein the
applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice the "Dilutive Issuance Notice"). For
clarification, whether or not the Corporation provides a Dilutive Issuance
Notice, upon the occurrence of any Dilutive Issuance, after the date of such
Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares
based upon the adjusted Exercise Price regardless of whether the Holder
accurately refers to the adjusted Exercise Price in the Warrant Exercise Form.
As used herein, "Additional Shares of Common Stock" shall mean all shares of
Common Stock or any securities of the Corporation which would entitle the holder
thereof to acquire at any time Common Stock (including without limitation, any
debt, preferred stock, rights, options, warrants or other instrument that is at
any time convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock), whether by operation of purchase price
adjustments, reset provisions, floating conversion, exercise or exchange prices
or otherwise, or due to warrants, options or rights per share which is issued in
connection with such issuance, at an effective price per share which is less
than the Exercise Price then in effect. If the Corporation issues any securities
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convertible or exchangeable into Common Stock, the maximum number of shares of
Common Stock issuable thereunder shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue, if the consideration per share
of such Additional Shares of Common Stock (as hereinafter determined) is less
than the Exercise Price then in effect. Additional Shares of Common Stock,
however, shall not include (i) shares of Common Stock or options issued to
employees, officers or directors of the Corporation pursuant to any currently
existing stock or option plan or any stock or option plan such duly adopted by a
majority of the non-employee members of the Board of Directors of the
Corporation and approved by the shareholders of the Corporation, (ii) securities
issuable upon the exercise of or conversion of any securities issued hereunder,
convertible securities, options or warrants issued and outstanding prior to the
date of this Warrant, provided that such securities have not been amended since
such date to increase the number of such securities, and (iii) securities issued
pursuant to acquisitions or strategic transactions, provided any such issuance
shall only be to a person or entity which is, itself or through its
subsidiaries, an operating company in a business synergistic with the business
of the Corporation and in which the Corporation receives benefits in addition to
the investment of funds, but shall not include a transaction in which the
Corporation is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities.
(e) Fractional Shares. No fractional Warrant Shares shall be issued
upon exercise of this Warrant as a result of any of the adjustment as set forth
in this Section 5. Instead, the number of Warrant Shares issuable upon exercise
of this Warrant shall be rounded to the nearest whole number.
6. Legend and Stop Transfer Orders. Unless the Warrant Shares have been
registered under the Securities Act, upon exercise of any part of the Warrant,
the Corporation shall instruct its transfer agent to enter stop transfer orders
with respect to such Warrant Shares, and all certificates or instruments
representing the Warrant Shares shall bear on the face thereof substantially the
following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED, OR
OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
7. Miscellaneous. This Warrant shall be governed by and construed in
accordance with the laws of the State of Colorado. All the covenants and
provisions of this Warrant by or for the benefit of the Corporation shall bind
and inure to the benefit of its successors and assigns hereunder. Nothing in
this Warrant shall be construed to give to any person or corporation other than
the Corporation and the holder of this Warrant any legal or equitable right,
remedy or claim under this Warrant. This Warrant shall be for the sole and
exclusive benefit of the Corporation and the holder of this Warrant. The section
headings herein are for convenience only and are not part of this Warrant and
shall not affect the interpretation hereof. Upon receipt of evidence
satisfactory to the Corporation of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Corporation, if
lost, stolen or destroyed, and upon surrender and cancellation of this Warrant,
if mutilated, the Corporation shall execute and deliver to the Holder a new
Warrant of like date, tenor and denomination.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officers, this ___ day of _____ ____.
ACCELR8 TECHNOLOGY CORPORATION
By:
--------------------------
Name: Thomas V. Geimer
Title: Chief Executive Officer
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WARRANT EXERCISE FORM
To Be Executed by the Holder in Order to Exercise Warrant
To: ACCLER8 TECHNOLOGY CORPORATION
7000 Broadway, Building 3-307 Dated: ____________________
Denver, Colorado 80221
Attn: Thomas V. Geimer, Chief Executive Officer
The undersigned, pursuant to the provisions set forth in the attached
Warrant No. ______, hereby irrevocably elects to purchase __________ shares of
the Common Stock of Accelr8 Technology Corporation covered by such Warrant.
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant $__________ in lawful
money of the United States.
The undersigned hereby requests that certificates for the Warrant Shares
purchased hereby be issued in the name of:
- ----------------------------------------------------------
- ----------------------------------------------------------
(please print or type name and address)
- ----------------------------------------------------------
(please insert social security or other identifying number)
and be delivered as follows:
- ----------------------------------------------------------
- ----------------------------------------------------------
(please print or type name and address)
- ----------------------------------------------------------
(please insert social security or other identifying number)
and if such number of shares of Common Stock shall not be all the shares
evidenced by this Warrant Certificate, that a new Warrant for the balance of
such shares be registered in the name of, and delivered to, Holder.
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Signature of
Holder SIGNATURE
GUARANTEE:
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ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form. Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
- ----------------------------------------------------------------whose address is
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated: --------------------, -------
Holder's Signature: ---------------------------------
Holder's Address: -----------------------------------
---------------------------------
Signature Guaranteed: ----------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust Corporation.
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Officers of corporations and those acting in a fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.