THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, NOR HAVE THEY BEEN REGISTERED UNDER THE
SECURITIES ("BLUE SKY") LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS THEY HAVE FIRST
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND UNDER THE
APPLICABLE BLUE SKY LAWS OR UNLESS THE AVAILABILITY OF AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND BLUE SKY LAWS IS ESTABLISHED TO
THE SATISFACTION OF THE COMPANY, WHICH MAY NECESSITATE A WRITTEN
OPINION OF SELLER'S COUNSEL SATISFACTORY TO COMPANY COUNSEL.
ACCELR8 TECHNOLOGY CORPORATION
Warrant for the Purchase of Common Stock
No. 001 --------------- Shares of Common Stock
THIS CERTIFIES that, for receipt in hand of $10.00 and other value
received, JANCO PARTNERS, INC. (the "Holder"), is entitled to subscribe for and
purchase from ACCELR8 TECHNOLOGY CORPORATION, a Colorado corporation (the
"Company"), upon the terms and conditions set forth herein, at any time from ,
1997 and before 5:00 P.M. on , 1999, Mountain time, shares of Common Stock (the
"Shares"), at a price of $ per share (the "Exercise Price"). This Warrant may
not be sold, transferred, assigned or hypothecated until , 1997 except that it
may be transferred, in whole or in part, to (i) one or more officers or partners
of the Holder (or the officers, directors or partners of any such partner); (ii)
a successor to the Holder, or the officers, directors or partners of such
successor; (iii) a purchaser of substantially all of the assets of the Holder;
or (iv) by operation of law. After , 1997, this Warrant may be sold,
transferred, assigned or hypothecated provided this Warrant is exercised
immediately upon transfer. If not exercised immediately upon transfer, this
Warrant shall lapse. The term the "Holder" as used herein shall include any
transferee to whom this Warrant has been transferred. The term "Exercise Period"
as used herein shall mean and include the two year period commencing ,1997. As
used herein the term "this Warrant" shall mean and include this Warrant and any
Warrant or Warrants hereafter issued as a consequence of the exercise or
transfer of this Warrant in whole or in part, and the term "Common Stock" shall
mean and include the Company's Common Stock, no par value, with ordinary voting
power which is, at the date hereof, publicly traded.
1. This Warrant may be exercised during the Exercise Period as to the whole
or any lesser number of whole Shares, by the surrender of this Warrant (with the
election at the end hereof duly executed) to the Company at its office at 303
East Seventeenth Avenue, Denver, Colorado 80203, or such other place as
is designated in writing by the Company, together with a certified or bank
cashier's check payable to the order of the Company in an amount equal to the
Exercise Price multiplied by the number of Shares for which this Warrant is
being exercised.
2. Upon each exercise of this Warrant, the Holder shall be deemed to be the
holder of record of the Shares issuable upon such exercise, notwithstanding that
the transfer books of the Company shall then be closed or certificates
representing such Shares shall not then have been actually delivered to the
Holder. As soon as practicable after each such exercise of this Warrant, the
Company shall issue and deliver to the Holder a certificate or certificates for
the Shares issuable upon such exercise, registered in the name of the Holder or
its designee. If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the right of the Holder to purchase the balance of the
Shares (or portions thereof) subject to purchase hereunder.
3. Any warrants issued upon the transfer or exercise in part of this
Warrant (together with this Warrant, the "Warrants") shall be numbered and shall
be registered in a Warrant Register as they are issued. The Company shall be
entitled to treat the registered Holder of any Warrant on the Warrant Register
as the owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to or interest in such Warrant on the
part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith. The Warrants shall be transferable
only on the books of the Company upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative, or accompanied by
proper evidence of succession, assignment or authority to transfer. In all cases
of transfer by an attorney, executor, administrator, guardian or other legal
representative, duly authenticated evidence of his or its authority shall be
produced. Upon any registration of transfer, the Company shall deliver a new
Warrant or Warrants to the person entitled thereto. The Warrants may be
exchanged, at the option of the Holder thereof, for another Warrant, or other
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares (or portions thereof)
upon surrender to the Company or its duly authorized agent. Notwithstanding the
foregoing, the Company shall have no obligation to cause Warrants to be
transferred on its books to any person if, in the opinion of counsel to the
Company, such transfer does not comply with the provisions of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations thereunder.
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4. The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of this Warrant, such number of shares of Common Stock as shall,
from to time, be sufficient therefor. The Company covenants that all shares of
Common Stock issuable upon exercise of this Warrant shall be validly issued,
fully paid, nonassessable, and free of preemptive rights.
5. (a) In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the outstanding Common Stock in shares of
its capital stock, (ii) subdivide the outstanding Common Stock, (iii) combine
the outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then, in each case, the Exercise
Price, and the number and kind of shares receivable upon exercise, in effect at
the time of the record date for such dividend or of the effective date of such
subdivision, combination, or reclassification shall be proportionately adjusted
so that the Holder of this Warrant shall be entitled to receive the aggregate
number and kind of shares which, if such Warrant had been exercised immediately
prior to such time, he would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination, or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) In case the Company shall issue rights, options, or warrants to all
holders of Common Stock entitling them to subscribe for or purchase Common Stock
(or securities convertible into or exchangeable for Common Stock) at a price per
share (or having a conversion price per share, if a security convertible into or
exchangeable for Common Stock) less than the Current Market Price on such record
date, then, in each case, the Exercise Price shall be adjusted by multiplying
the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common Stock which
the aggregate offering price of the total number of shares of Common Stock so to
be offered (or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such Current Market Price and the
denominator of which shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock to be
offered for subscription or purchase (or into which the convertible or
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exchangeable securities so to be offered are initially convertible or
exchangeable). Such adjustment shall become effective at the close of business
on such record date; provided, however, that, to the extent the shares of Common
Stock (or securities convertible into or exchangeable for shares of Common
Stock) are not delivered, the Exercise Price shall be readjusted after the
expiration of such rights, options, or warrants (but only with respect to
Warrants exercised after such expiration), to the Exercise Price which would
then be in effect had the adjustments made upon the issuance of such rights or
warrants been made upon the basis of delivery of only the number of shares of
Common Stock (or securities convertible into or exchangeable for shares of
Common Stock) actually issued. In case any subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by the board of
directors of the Company, whose determination shall be conclusive absent
manifest error. Shares of Common Stock owned by or held for the account of the
Company or any majority-owned subsidiary shall not be deemed outstanding for the
purpose of any such computation.
(c) In case the Company shall distribute to all holders of Common Stock
(including any such distribution made to the stockholders of the Company in
connection with a consolidation or merger in which the Company is the continuing
corporation) evidences of its indebtedness or assets (other then cash dividends
or distributions and dividends payable in shares of Common Stock), or
subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock (excluding those referred to in paragraph (b) of this Section 5), then, in
each case, the Exercise Price shall be adjusted by multiplying the Exercise
Price in effect immediately prior to the record date for the determination of
stockholders entitled to receive such distribution by a fraction, the numerator
of which shall be the Current Market Price on such record date, less the fair
market value (as determined in good faith by the board of directors of the
Company, whose determination shall be conclusive absent manifest error) of the
portion of the evidences of indebtedness or assets so to be distributed, or of
such subscription rights, options, or warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock, applicable to one share, and the denominator of which shall be such
Current Market Price per share of Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall become effective on the date
of such distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
(d) Upon each adjustment of the Exercise Price as a result of the
calculations made in paragraphs (a), (b) and (c) of this paragraph 5, this
Warrant shall thereafter evidence the right to purchase, at the adjusted
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Exercise Price, that number of shares obtained by dividing (A) the product
obtained by multiplying the number of shares purchasable upon exercise of a
Warrant prior to adjustment of the number of shares by the Exercise Price in
effect prior to adjustment of the Exercise Price by (B) the Exercise Price in
effect after such adjustment of the Exercise Price.
(e) Whenever there shall be an adjustment as provided in this paragraph
5, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its principal office, which
notice shall be accompanied by an officer's certificate setting forth the number
of Shares issuable after such adjustment and setting forth a brief statement of
the facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
(f) All calculations under this paragraph 5 shall be made to the
nearest cent or to the nearest one-tenth of a share, as the case may be.
(g) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the exercise of
Warrants. If any fraction of a Share would be issuable on the exercise of any
Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the Current Market
Price of such share of Common Stock on the date of exercise of the Warrant.
6. (a) In case of any consolidation with or merger of the Company with or
into another corporation (other than a merger or consolidation in which the
Company is the surviving or continuing corporation), or in case of any sale,
lease or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, such successor, leasing or purchasing
corporation, as the case may be, shall (i) execute with the Holder an agreement
providing that the Holder shall have the right thereafter to receive upon
exercise of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash or any combination thereof receivable upon such
consolidation, merger, sale, lease or conveyance by a holder of the number of
shares of Common Stock for which for this Warrant might have been exercised
immediately prior to such consolidation, merger, sale, lease or conveyance, and
(ii) make effective provision in its certificate of incorporation or otherwise,
if necessary, in order to effect such agreement.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of this Warrant (other than a change in par value
or from no par value to a specified par value, or as a result of a subdivision
or combination, but including any change in the shares into two or more classes
or series of shares), or in case of any consolidation or merger of another
5
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change to the
right to receive cash or other property) of the shares of Common Stock (other
than a change in par value, or from no par value to a specified par value, or as
a result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), the Holder shall have the right
thereafter to receive upon exercise of this Warrant solely the kind and amount
of shares of stock and other securities, property, cash or any combination
thereof receivable upon such reclassification, change, consolidation or merger
by a holder of the number of shares of Common Stock for which this Warrant might
have been exercised immediately prior to such reclassification, change,
consolidation or merger. Thereafter, appropriate provision shall be made for
adjustments which shall be as nearly equivalent as practicable to the
adjustments in paragraph 5.
(c) The above provisions of this paragraph 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases or conveyances.
7. In case at any time the Company shall propose:
(a) to pay any dividend or make any distribution on shares of Common
Stock in shares of Common Stock or make any other distribution (other than
regularly scheduled cash dividends which are not in a greater amount per share
than the most recent such cash dividend) to all holders of Common Stock; or
(b) to issue any rights, warrants or other securities to all holders of
Common Stock entitling them to purchase any additional shares of Common Stock or
any other rights, warrants or other securities; or
(c) to effect any reclassification or change of outstanding shares of
Common Stock, or any consolidation, merger, sale, lease or conveyance of
property, described in paragraph 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price; then, and in any one or more of such cases, the Company shall
give written notice thereof, by registered mail, postage pre-paid, to the Holder
at the Holder's address as it shall appear in the Warrant Register, mailed at
least 15 days prior to (i) the date as of which the holders of record of shares
of Common Stock to be entitled to receive any such dividend, distribution,
rights, warrants or other securities are to be determined, (ii) the date on
which any such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
6
dissolution, or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up; or (iii) the date of such action which would require
an adjustment to the Exercise Price.
8. The issuance of any shares or other securities upon the exercise of this
Warrant, and the delivery of certificates or other instruments representing such
shares, or other securities, shall be made without charge to the Holder for any
tax or other charge in respect of such issuance. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of any certificate in a name other than that
of the Holder and the Company shall not be required to issue or deliver any such
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
9. (a) If the Company shall file a registration statement (other than on
Form S-4, Form S-8, or other inapplicable forms or any successor form) with the
Securities and Exchange Commission (the "Commission") during the Exercise
Period, the Company shall give the Holder of this Warrant and all the then
holders of Shares at least 30 days prior written notice of the filing of such
registration statement. If requested by the Holder or by any such holder in
writing within 20 days after receipt of any such notice, the Company shall, at
the Company's sole expense (other than the fees and disbursements of counsel for
the Holder or such holder and the underwriting discounts, if any, payable in
respect of the Shares sold by the Holder or any such holder), and on one
occasion only, register or qualify the Shares of the Holder or any such holders
who shall have made such request concurrently with the registration of such
other securities, all to the extent requisite to permit the public offering and
sale of the Shares through the facilities of all appropriate securities
exchanges and the over-the-counter market. The Company will use its best efforts
through its officers, directors, auditors and counsel to cause such registration
statement to become effective as promptly as practicable. Notwithstanding the
foregoing, if the managing underwriter of any such offering shall advise the
Company in writing that, in its opinion, the distribution of all or a portion of
the Shares requested to be included in the registration concurrently with the
securities being registered by the Company would materially adversely affect the
distribution of such securities by the Company for its own account, then the
Holder or any such holder who shall have requested registration of his or its
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hares shall delay the offering and sale of such Shares (or the portions thereof
so designated by such managing underwriter) for such period, not to exceed 90
days, as the managing underwriter shall request, provided that no such delay
shall be required as to any Shares if any securities of the Company are included
in such registration statement for the account of any person other than the
Company and the Holder unless the securities included in such registration
statement for such other person shall have been reduced pro rata to the
reduction of the Shares which were requested to be included in such
registration.
(b) If at any time during the Exercise Period the Company shall receive
a written request from Holders who, in the aggregate, own (or upon exercise of
all Warrants would own) a majority of the total number of Shares issued or
issuable upon exercise of the Warrants, the Company shall, as promptly as
practicable, prepare and file with the Commission a registration statement
sufficient to permit the public offering and sale of the Shares through the
facilities of all appropriate securities exchanges and the over-the-counter
market, and will use its best efforts through its officers, directors, auditors
and counsel to cause such registration statement to become effective as promptly
as practicable; provided, however, that the Company shall only be obligated to
file and obtain effectiveness of such a registration statement on two separate
occasions. All expenses incurred in connection with such registration (other
than the fees and disbursements of counsel for the Holder or such holders and
underwriting discounts, if any, payable in respect of the Underwriter's
Securities sold by the Holder or any such holder) shall be borne by the Company.
(c) In the event of a registration pursuant to the provisions of this
paragraph 9, the Company shall use its best efforts to cause the Shares so
registered to be registered or qualified for sale under the securities or blue
sky laws of such jurisdictions as the Holder or such holders may reasonably
request; provided, however, that by reason of this paragraph 9(c), the Company
shall not be required to qualify to do business in any state in which it is not
otherwise required to qualify to do business.
(d) The Company shall keep effective any registration or qualification
contemplated by this paragraph 9 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Holder or such holders to complete the offer and
sale of the Shares covered thereby. The Company shall in no event be required to
keep any such registration or qualification in effect for a period in excess of
nine months from the date on which the Holder and such holders are first free to
sell such Shares; provided, however, that if the Company is required to keep any
8
such registration or qualification in effect with respect to securities other
than the Shares beyond such period, the Company shall keep such registration or
qualification in effect as it relates to the Shares for so long as such
registration or qualification remains or is required to remain in effect in
respect of such other securities.
(e) In the event of a registration pursuant to the provisions of this
paragraph 9, the Company shall furnish to the Holder and to each such holder
such number of copies of the registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), such reasonable
number of copies of each prospectus contained in such registration statement and
each supplement or amendment thereto (including each preliminary prospectus),
all of which shall conform to the requirements of the Act and the rules and
regulations thereunder, and such other documents, as the Holder or such holders
may reasonably request in order to facilitate the disposition of the Shares
included in such registration. (f) In the event of a registration pursuant to
the provisions of this paragraph 9, the Company shall furnish the Holder and
each holder of any Shares so registered with an opinion of its counsel
(reasonably acceptable to the Holder) to the effect that (i) the registration
statement has become effective under the Act and no order suspending the
effectiveness of the registration statement, preventing or suspending the use of
the registration statement, any preliminary prospectus, any final prospectus, or
any amendment or supplement thereto has been issued, nor has the Securities and
Exchange Commission or any securities or blue sky authority of any jurisdiction
instituted or threatened to institute any proceedings with respect to such an
order, (ii) the registration statement and each prospectus forming a part
thereof (including each preliminary prospectus), and any amendment or supplement
thereto, complies as to form with the Act and the rules and regulations
thereunder, and (iii) such counsel has no knowledge or reason to know of any
material misstatement or omission in such registration statement or any
prospectus, as amended or supplemented. Such opinion shall also state the
jurisdictions in which the Shares have been registered or qualified for sale
pursuant to the provisions of paragraph 9(b). (g) The Company agrees that until
all the Shares have been sold under a registration statement or pursuant to Rule
144, under the Act, it shall file all reports, statements and other materials
required to be filed with the Commission to permit holders of the Shares to sell
such securities under Rule 144. 10. (a) Subject to the conditions set forth
below, the Company agrees to indemnify and hold harmless the Holder, any holder
of any of the Shares, their officers, directors, partners, employees, agents and
9
counsel, and each person, if any, who controls any such person within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), from and against any and all loss,
liability, charge, claim, damage and expense whatsoever (which shall include,
for all purposes of this Section 10, but not be limited to, attorneys' fees and
any and all expense whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), as and when
incurred, arising out of, based upon, or in connection with (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
registration statement, preliminary prospectus or final prospectus (as from time
to time amended and supplemented), or any amendment or supplement thereto, or
(B) in any application or other document or communication (in this Section 10
collectively called an "application") executed by or on behalf of the Company or
based upon written information furnished by or on behalf of the Company filed in
any jurisdiction in order to register or qualify any of the Shares under the
securities or blue sky laws thereof or filed with the Commission or any
securities exchange; or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, unless such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company with respect to
the Holder or any holder of any of the Shares by or on behalf of such person
expressly for inclusion in any registration statement, preliminary prospectus,
or final prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant or agreement of the Company contained in this Warrant. The
foregoing agreement to indemnify shall be in addition to any liability the
Company may otherwise have, including liabilities arising under this Warrant.
If any action is brought against the Holder or any holder of any of the
Shares or any of its officers, directors, partners, employees, agents or
counsel, or any controlling persons of such person (an "indemnified party") in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such indemnified party or parties shall promptly notify the
Company in writing of the institution of such action (but the failure so to
notify shall not relieve the Company from any liability it may have pursuant to
this paragraph 10(a)) and the Company shall promptly assume the defense of such
action, including the employment of counsel (reasonably satisfactory to such
indemnified party or parties) and payment of expenses. Such indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
10
such indemnified party or parties unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense of
such action or the Company shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be one or more legal defenses available to it or them
or to other indemnified parties which are different from or additional to those
available to the Company, in any of which events such fees and expenses shall be
borne by the Company and the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties. Anything
in this paragraph to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent.
(b) The Holder agrees to indemnify and hold harmless the Company, each
director of the Company, each officer of the Company who shall have signed any
registration statement covering Shares held by the Holder and each other person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Holder in paragraph 10(a), but only with respect to
statements or omissions, if any, made in any registration statement, preliminary
prospectus, or final prospectus (as from time to time amended and supplemented),
or any amendment or supplement thereto, or in any application, in reliance upon
and in conformity with written information furnished to the Company with respect
to the Holder by or on behalf of the Holder expressly for inclusion in any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. If
any action shall be brought against the Company or any other person so
indemnified based on any such registration statement, preliminary prospectus, or
final prospectus, or any amendment or supplement thereto, or in any application,
and in respect of which indemnity may be sought against the Holder pursuant to
this paragraph 10(b), the Holder shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the
rights and duties given to the indemnified parties, by the provisions of
paragraph 10(a).
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to paragraph 10(a)
or 10(b) (subject to the limitations thereof) but it is found in a final
judicial determination, not subject to further appeal, that such indemnification
may not be enforced in such case, even though this Agreement expressly provides
for indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act or otherwise, then the
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Company (including for this purpose any contribution made by or on behalf of any
director of the Company, any officer of the Company who signed any such
registration statement and any controlling person of the Company), as one
entity, and the Holder and any holder of any of the Shares included in such
registration in the aggregate (including for this purpose any contribution by or
on behalf of an indemnified party), as a second entity, shall contribute to the
losses, liabilities, claims, damages and expenses whatsoever to which any of
them may be subject, on the basis of relevant equitable considerations such as
the relative fault of the Company and the Holder or any such holder in
connection with the facts which resulted in such losses, liabilities, claims,
damages and expenses. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission or alleged omission, shall be determined by,
among other things, whether such statement, alleged statement, omission or
alleged omission relates to information supplied by the Company, by the Holder
or by any holder of Shares included in such registration, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement, alleged statement, omission or alleged omission. The
Company and the Holder agree that it would be unjust and inequitable if the
respective obligations of the Company and the Holder for contribution were
determined by pro rata or per capita allocation of the aggregate losses,
liabilities, claims, damages and expenses (even if the Holder and the other
indemnified parties were treated as one entity for such purpose) or by any other
method of allocation that does not reflect the equitable considerations referred
to in this paragraph 10(c). No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this paragraph 10(c), each person, if any,
who controls the Holder or any holder of any of the Shares within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and each officer,
director, partner, employee, agent and counsel of each such person, shall have
the same rights to contribution as such person and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed any
such registration statement, and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
provisions of this paragraph 10(c). Anything in this paragraph 10(c) to the
contrary notwithstanding, no party shall be liable for contribution with respect
to the settlement of any claim or action effected without its written consent.
This paragraph 10(c) is intended to supersede any right to contribution under
the Act, the Exchange Act or otherwise.
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11. The securities issued upon exercise of the Warrants shall be subject to
a stop transfer order and the certificate or certificates evidencing any such
securities shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAVE THEY BEEN
REGISTERED UNDER THE SECURITIES ("BLUE SKY") LAWS OF ANY STATE. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED
UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND UNDER THE APPLICABLE STATE SECURITIES ("BLUE SKY") LAWS OR
UNLESS THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT AND LAWS IS ESTABLISHED TO THE SATISFACTION OF THE COMPANY, WHICH
MAY NECESSITATE A WRITTEN OPINION OF SELLER'S COUNSEL SATISFACTORY TO
COMPANY COUNSEL."
12. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expenses, the Company shall execute and deliver to the Holder thereof
a new Warrant of like date, tenor and denomination.
13. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
14. This Warrant shall be construed in accordance with the laws of the
State of Colorado, without giving effect to conflict of laws.
Dated: , 1996
---------------
ACCELR8 TECHNOLOGY CORPORATION
By: /S/ THOMAS V. GEIMER
------------------------------------
Thomas V. Geimer, Chairman and Chief
Executive Officer
[ S E A L ]
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FORM OF ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name, address, social security
or other identifying number of assignee)
Warrants to purchase ____________ shares of Common Stock of Accelr8 Technology
Corporation (the "Company"), together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
_____________________________________________ attorney to transfer such Warrants
on the books of the Company, with full power of substitution.
Dated:
-----------------------
Signature:
---------------------------
Signature Guaranteed:
NOTICE
The signature(s) on the foregoing Assignment must correspond to the
name(s) as written upon the face of this Warrant in every particular, without
alteration or enlargement or any change whatsoever. The signature(s) must be
guaranteed by an eligible guarantor institution (Banks, Stockbrokers, Savings
and Loan Associations and Credit Unions with membership in an approved signature
guarantee Medallion Program).
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To: ACCELR8 TECHNOLOGY CORPORATION
303 East Seventeenth Avenue
Denver, Colorado 80203
ELECTION TO EXERCISE
The undersigned hereby exercises his or its rights to subscribe for
__________ shares of Common Stock covered by the within Warrant (each as defined
in the within Warrant) and tenders payment herewith in the amount of $__________
in accordance with the terms thereof, and requests that certificates for such
securities be issued in the name of, and delivered to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name, address, social security
or other identifying number)
and, if such number of Shares (or portions thereof) shall
not be all the Shares covered by the within Warrant, that a new Warrant for the
balance of the Shares (or portions thereof) covered by the within Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated below.
Dated: Name:
------------------------------------- ----------------------------
Address:
-----------------------------------------------------------------------
(Please print or typewrite name and address)
Signature:
-------------------------
Signature Guaranteed:
NOTICE
The signature(s) on the foregoing Election to Exercise must correspond
to the name(s) as written upon the face of this Warrant in every particular,
without alteration or enlargement or any change whatsoever. The signature(s)
must be guaranteed by an eligible guarantor institution (Banks, Stockbrokers,
Savings and Loan Associations and Credit Unions with membership in an approved
signature guarantee Medallion Program).
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