THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
- -------------------------------------------------------------------------------
Warrant No. CS98-21 Number of Shares: 283,019
Date of Issuance: February 27, 1998 (subject to adjustment)
CENTURA SOFTWARE CORPORATION
COMMON STOCK PURCHASE WARRANT
-----------------------------
Centura Software Corporation (the "COMPANY"), for value received, hereby
certifies that Rochon Capital Group, Ltd., or its registered assigns (the
"REGISTERED HOLDER"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time after the date hereof and on or before
the Expiration Date (as defined in Section 5 below), up to 283,019 shares (as
adjusted from time to time pursuant to the provisions of this Warrant) of
Common Stock of the Company, at a purchase price of $2.12 per share. The
shares purchasable upon exercise of this Warrant and the purchase price per
share, as adjusted from time to time pursuant to the provisions of this
Warrant, are sometimes hereinafter referred to as the "WARRANT STOCK" and the
"PURCHASE PRICE," respectively.
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the
Registered Holder, in whole or in part, by surrendering this Warrant, with
the purchase form appended hereto as EXHIBIT A duly executed by such
Registered Holder or by such Registered Holder's duly authorized attorney, at
the principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of the Purchase Price
payable in respect of the number of shares of Warrant Stock purchased upon
such exercise. The Purchase Price may be paid by cash, check or wire
transfer to the Registered Holder.
(b) EFFECTIVE TIME OF EXERCISE. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the Company as
provided in Section 1(a) above. At such time, the person or persons in whose
name or names any certificates for Warrant Stock shall be issuable upon such
exercise as provided in Section 1(d) below shall be deemed to have become the
holder or holders of record of the Warrant Stock represented by such
certificates.
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner provided
above in Section 1(a), the Registered Holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the
Company together with notice of such election in which event the Company
shall issue to holder a number of shares of Common Stock computed using the
following formula:
X = Y (A - B)
---------
A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock as to which the Warrant is
being exercised
A = The fair market value of one share of Common Stock (at the date of
such calculation).
B = The Purchase Price (as adjusted to the date of such calculation).
(ii) For purposes of this Section 1(c), the fair market value of
one share of Common Stock on the date of calculation shall mean:
(1) if the Company's Common Stock is traded on a securities
exchange, The Nasdaq Stock Market, or The Nasdaq SmallCap Market, the fair
market value shall be deemed to be the closing price on the trading day
immediately preceding the date of exercise of the Warrant; or
(2) if the Company's Common Stock is actively traded
over-the-counter, the fair market value shall be deemed to be the closing bid
or sales price (whichever is applicable) on the trading day immediately
preceding the date of exercise of the Warrant; or
(3) if neither (1) nor (2) is applicable, the fair market
value shall be at the highest price per share which the Company could obtain
on the date of calculation from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the Board of Directors,
unless the Company is at such time subject to an acquisition as described in
Section 5(b) below, in which case the fair market value per share of Common
Stock shall be deemed to be the value of the consideration per share received
by the holders of such stock pursuant to such acquisition.
(d) DELIVERY TO HOLDER. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within three (3) days
thereafter, the Company at its expense will cause to be issued in the name
of, and delivered to, the Registered Holder, or as such Holder (upon payment
by such Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of shares of
Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of shares of Warrant Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such
shares purchased by the Registered Holder upon such exercise as provided in
Section 1(a) above.
2. ADJUSTMENTS.
(a) STOCK SPLITS AND DIVIDENDS. If outstanding shares of the
Company's Common Stock shall be subdivided into a greater number of shares or
a dividend in Common Stock shall be paid in respect of Common Stock, the
Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend shall simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend be
proportionately reduced. If outstanding shares of Common Stock shall be
combined into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Purchase Price, the number of shares
of Warrant Stock purchasable upon the exercise of this Warrant shall be
changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior
to such adjustment, multiplied by the Purchase Price in effect immediately
prior to such adjustment, by (ii) the Purchase Price in effect immediately
after such adjustment.
(b) RECLASSIFICATION, ETC. In case of any reclassification or change
of the outstanding securities of the Company or of any reorganization of the
Company (or any other corporation the stock or securities of which are at the
time receivable upon the exercise of this Warrant) or any similar corporate
reorganization or merger or conveyance on or after the date hereof, then and
in each such case the holder of this Warrant, upon the exercise hereof at any
time after the consummation of such reclassification, change, reorganization,
merger or conveyance, shall be entitled to receive, in lieu of the stock or
other securities and property receivable upon the exercise hereof prior to
such consummation, the stock or other securities or property to which such
holder would have been entitled upon such consummation if such holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in Section 2(a); and in each such case, the terms of
this Section 2 shall be applicable to the shares of stock or other securities
properly receiv-able upon the exercise of this Warrant after such
consummation.
(c) ADJUSTMENT CERTIFICATE. When any adjustment is required to be
made in the Purchase Price, the Company shall promptly mail to the Registered
Holder a certificate setting forth the Purchase Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment.
Such certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in Section 2(a) or 2(b) above.
3. TRANSFERS.
(a) UNREGISTERED SECURITY. Each holder of this Warrant acknowledges
that this Warrant and the Warrant Stock have not been registered under the
Securities Act, and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant
Stock issued upon its exercise in the absence of (i) an effective
registration statement under the Act as to this Warrant or such Warrant Stock
and registration or qualification of this Warrant or such Warrant Stock under
any applicable U.S. federal or state securities law then in effect or (ii) an
opinion of counsel, satisfactory to the Company, that such registration and
qualification are not required. Each certificate or other instrument for
Warrant Stock issued upon the exercise of this Warrant shall bear a legend
substantially to the foregoing effect until such time as the registration of
the Warrant Stock is effective or until such time as the Warrant Stock has
been held by the holder (after giving effect to permissible tacking under
Rule 144) for at least two years, at and after which time no legend shall be
required.
(b) TRANSFERABILITY. Subject to the provisions of Section 3(a)
hereof, this Warrant and all rights hereunder are transferable, in whole or
in part, upon surrender of the Warrant with a properly executed assignment
(in the form of EXHIBIT B hereto) at the principal office of the Company,
PROVIDED, HOWEVER, that this Warrant may not be transferred in part unless
the transferee and any subsequent tranferee acquires the right to purchase at
least 25,000 shares (as adjusted pursuant to Section 2) of Warrant Stock
hereunder.
(c) WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Registered Holders of this Warrant.
Until any transfer of this Warrant is made in the warrant register, the
Company may treat the Registered Holder of this Warrant as the absolute owner
hereof for all purposes; PROVIDED, HOWEVER, that if this Warrant is properly
assigned in blank, the Company may (but shall not be required to) treat the
bearer hereof as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary. Any Registered Holder may change such Registered
Holder's address as shown on the warrant register by written notice to the
Company requesting such change.
4. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will (subject to Section
13 below) at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the holder of this Warrant against
impairment.
5. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate upon the earliest to occur of the following
(the "EXPIRATION DATE"): (a) February 27, 2003, or (b) the effective date of
the sale, conveyance, disposal, or encumbrance of all or substantially all of
the Company's property or business or the Company's merger into or
consolidation with any other corporation (other than a wholly-owned
subsidiary corporation) or any other transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of
the Company is disposed of, PROVIDED that this Section 5(b) shall not apply a
merger effected exclusively for the purpose of changing the domicile of the
Company.
6. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise
of this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right, to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or
into another corporation (other than a consolidation or merger in which the
Company is the surviving entity), or any transfer of all or substantially all
of the assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a 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, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any
is to be fixed, as of which the holders of record of Common Stock (or such
other stock or securities at the time deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or winding-up) are to be determined. Such notice shall be mailed at least
ten (10) days prior to the record date or effective date for the event
specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant.
8. EXCHANGE OF WARRANTS. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section
3 hereof, issue and deliver to or upon the order of such Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of
such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant or Warrants so
surrendered.
9. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
10. NOTICES. Any notice required or permitted by this Warrant shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile,
or forty-eight (48) hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage
prepaid, addressed (a) if to the Registered Holder, to the address of the
Registered Holder most recently furnished in writing to the Company and (b)
if to the Company, to the address set forth below or subsequently modified by
written notice to the Registered Holder.
11. NO RIGHTS AS SHAREHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.
12. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share
of Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or
waived only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
14. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
15. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
16. REGISTRATION OF SECURITIES.
(a) As soon as possible after the original date of issuance of this
Warrant, the Company shall use its best efforts to prepare and file a
registration statement on Form S-3 (the "REGISTRATION STATEMENT") with the
Commission under the Act to register the resale of the Common Stock issuable
upon exercise of the Warrant ("REGISTRABLE SECURITIES") and thereafter shall
use its best efforts to secure the effectiveness of such Registration
Statement.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Purchaser or any transferee of the Registrable Securities
(each, a "HOLDER") shall pay all Selling Expenses (as defined below) and
other expenses that are not Registration Expenses relating to the Registrable
Securities resold by Holder. "Registration Expenses" shall mean all expenses,
except for Selling Expenses, incurred by the Company in complying with the
registration provisions herein described, including, without limitation, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company and the Holder (in an amount for
Holder's counsel not to exceed $5,000), blue sky fees and expenses and the
expense of any special audits incident to or required by any such
registration. "Selling Expenses" shall mean all selling commissions,
brokerage or underwriting fees and stock transfer taxes applicable to the
Registrable Securities and all fees and disbursements of counsel for Holder
in excess of $5,000.
(c) In the case of any registration effected by the Company pursuant
to these registration provisions, and subject to the limitations on
registration set forth in Section 16(d) below, the Company will use
commercially reasonable efforts to: (i) keep such registration effective
until two (2) years after the issuance date set forth on page 1 hereof; (ii)
prepare and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
Registration Statement; (iii) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request; (iv)
register and qualify the securities covered by such Registration Statement
under such other securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by the Holders, provided that the Company shall not
be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions; (v) cause all such Registrable Securities registered
as described herein to be listed on each securities exchange and quoted on
each quotation service on which similar securities issued by the Company are
then listed or quoted; and (vi) otherwise use commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission.
(d) The Company may, by written notice to Holder, delay the filing or
effectiveness of, or suspend, the Registration Statement, and require that
Holder immediately cease sales of shares pursuant to such Registration
Statement in any period during which the Company is engaged in any activity
or transaction or preparations or negotiations for any activity or
transaction ("COMPANY ACTIVITY") that the Company desires to keep
confidential for business reasons, if the Company determines in good faith
that the public disclosure requirements imposed on the Company under the Act
in connection with the Registration Statement would require disclosure of the
Company Activity; provided, however, that (A) the Company shall use
commercially reasonable efforts to minimize the length of any such period of
delay or suspension, (B) any such delay or suspension shall be applied in the
same manner to any other resale registration statement then in effect, (C) no
such suspension period shall extend longer than forty-five (45) consecutive
calendar days, (D) no such suspension period may be imposed within forty-five
(45) days following the completion of a prior suspension period, and (E) the
Company shall not impose suspension periods which, in the aggregate, exceed
ninety (90) days in any twelve (12) month period. If the Company delays or
suspends the Registration Statement or requires Holder to cease sales of
shares pursuant to this Section 4(d), the Company shall, as promptly as
practicable following the termination of the circumstance which entitled the
Company to do so, take such actions as may be necessary to file or reinstate
the effectiveness of the Registration Statement and/or give written notice to
Holder authorizing it to resume sales pursuant to such Registration
Statement. If as a result thereof the prospectus included in the
Registration Statement has been amended to comply with the requirements of
the Act, the Company shall enclose such revised prospectus with the notice to
Holders given pursuant to this Section 4(d), and Holder shall make no offers
or sales of shares pursuant to the Registration Statement other than by means
of such revised prospectus. If the Company delays or suspends the
Registration Statement or requires Holder to cease sales of shares pursuant
to this Section 4(d), the Company shall extend the period during which it
maintains effectiveness of the Registration Statement by the number of days
of any such period of delay or suspension.
(e) Holder hereby agrees to comply with the registration provisions
herein described. Holder will only sell Registrable Securities at such time
that information required to be included in the Registration Statement and
previously supplied by Holder is accurate. The Company shall furnish to
Holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
Holders of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing. Holder agrees
that the Company may impose a legend setting forth the provisions of
Section 16(e) on the Registrable Securities during the period of registration.
(f) With a view to making available to the holders the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
Commission that may at any time permit Holder to sell Registrable Securities
to the public without registration or pursuant to a registration on Form S-3,
the Company hereby covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
at all times after the issuance of this Warrant; and (ii) file with the
Commission in a timely manner all reports and other documents required of the
Company under the Act and Exchange Act.
(g) Indemnification.
(i) To the extent permitted by law, the Company will indemnify
and hold harmless Holder, any underwriter (as defined in the Act) for Holder,
its officers, directors, shareholders or partners and each person, if any,
who controls Holder or underwriter within the meaning of the Act or the
Exchange Act, against any losses, claims, damages, or liabilities to which
they may become subject under the Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "VIOLATION"):
(A) any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto or (B) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading; and the Company will pay to each such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 16(g)(i)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by any such Holder, underwriter or controlling person; further provided,
however, that the foregoing indemnity with respect to any untrue statement
in or omission from any preliminary prospectus shall not inure to the benefit
of any Holder from whom the person asserting any such losses, claims, damages
or liabilities purchased the Registrable Securities if a copy of the final
prospectus or any amendment thereto had not been sent or given to such person
at or prior to the written confirmation of the sale
of such Registrable Securities to such person if required by the Act and the
untrue statement or omission of a material fact contained in such preliminary
prospectus was corrected in the final prospectus or amendment and such final
prospectus or amendment was distributed to the Holder prior to such sale of
Registrable Securities.
(ii) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such Registration Statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities to which any of the foregoing persons
may become subject, under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 16(g)(ii), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 16 (g)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 16(g)(ii) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder.
(iii) Promptly after receipt by an indemnified party under this
Section 16(g) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
16(g), deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if and only if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 16(g).
17. RESALE RESTRICTIONS. Holder agrees that it will not sell any
Registrable Securities issued hereunder until the effectiveness of the
Registration Statement to be filed pursuant to Section 16 above.
Notwithstanding the foregoing, the Company may suspend resales by the Holder
if an underwriter reasonably determines that such resales would adversely
affect the Company's ability to raise additional capital in a public offering
of the Company's equity securities
and such underwriter issues a written opinion to the Company to that effect.
Any such suspension of resales by the Holder pursuant to the foregoing
sentence will not exceed 120 calendar days commencing on the date of the
secondary offering. The volume and resale restrictions set forth in this
Section 17 shall be set forth in any and all Registration Statements brought
effective pursuant to Section 16 above, and the Company shall instruct its
transfer agent, broker dealers and market makers to enforce the volume
restrictions set forth herein. If the Company suspends resales by the Holder
pursuant to this Section 17, the Company shall extend the period during which
it maintains effectiveness of the Registration Statement by the number of
days of any such period of suspension.
[SIGNATURE PAGE FOLLOWS]
Executed as of the date first set forth herein above.
CENTURA SOFTWARE CORPORATION
By /s/ John Bowman
-------------------------
Title: CFO
---------------------
Address: 975 Island Drive
Redwood Shores, CA 94065
Fax Number:(650)-596-4376
EXHIBIT A
---------
PURCHASE FORM
-------------
To: Centura Software Corporation Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant No. CS-[WarrantNo], hereby irrevocably elects to purchase _______
shares of the Common Stock covered by such Warrant and herewith makes payment
of $_________, representing the full purchase price for such shares at the
price per share provided for in such Warrant.
The undersigned further acknowledges that it has reviewed the
representations and warranties contained in Section 4 of the Purchase
Agreement (as defined in the Warrant) and by its signature below hereby makes
such representations and warranties to the Company. Defined terms contained
in such representations and warranties shall have the meanings assigned to
them in the Purchase Agreement, PROVIDED that the term "Seller" shall refer
to the undersigned and the term "Securities" shall refer to the Warrant Stock.
Signature:
-----------------------------
Address:
-----------------------------
EXHIBIT B
---------
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED, _________________________________________ hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
- ------------------------ ------------------------ ------------------------
Dated: Signature:
----------------------------- -----------------------------
-----------------------------
Witness: -------------------------------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
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Warrant No. CS98-22 Number of Shares: 71,698
Date of Issuance: February 27, 1998 (subject to adjustment)
CENTURA SOFTWARE CORPORATION
COMMON STOCK PURCHASE WARRANT
-----------------------------
Centura Software Corporation (the "COMPANY"), for value received, hereby
certifies that Rochon Capital Group, Ltd., or its registered assigns (the
"REGISTERED HOLDER"), is entitled, subject to the terms set forth below, to
purchase from the Company, at any time after the date hereof and on or before
the Expiration Date (as defined in Section 5 below), up to 71,698 shares (as
adjusted from time to time pursuant to the provisions of this Warrant) of
Common Stock of the Company, at a purchase price of $2.12 per share. The
shares purchasable upon exercise of this Warrant and the purchase price per
share, as adjusted from time to time pursuant to the provisions of this
Warrant, are sometimes hereinafter referred to as the "WARRANT STOCK" and the
"PURCHASE PRICE," respectively.
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the
Registered Holder, in whole or in part, by surrendering this Warrant, with
the purchase form appended hereto as EXHIBIT A duly executed by such
Registered Holder or by such Registered Holder's duly authorized attorney, at
the principal office of the Company, or at such other office or agency as the
Company may designate, accompanied by payment in full of the Purchase Price
payable in respect of the number of shares of Warrant Stock purchased upon
such exercise. The Purchase Price may be paid by cash, check or wire
transfer to the Registered Holder.
(b) EFFECTIVE TIME OF EXERCISE. Each exercise of this Warrant shall
be deemed to have been effected immediately prior to the close of business on
the day on which this Warrant shall have been surrendered to the Company as
provided in Section 1(a) above. At such time, the person or persons in whose
name or names any certificates for Warrant Stock shall be issuable upon such
exercise as provided in Section 1(d) below shall be deemed to have become the
holder or holders of record of the Warrant Stock represented by such
certificates.
(c) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner provided
above in Section 1(a), the Registered Holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being canceled) by
surrender of this Warrant at the principal office of the
Company together with notice of such election in which event the Company
shall issue to holder a number of shares of Common Stock computed using the
following formula:
X = Y (A - B)
---------
A
Where X = The number of shares of Common Stock to be issued to the
Registered Holder.
Y = The number of shares of Common Stock as to which the Warrant is
being exercised
A = The fair market value of one share of Common Stock (at the date of
such calculation).
B = The Purchase Price (as adjusted to the date of such calculation).
(ii) For purposes of this Section 1(c), the fair market value of
one share of Common Stock on the date of calculation shall mean:
(1) if the Company's Common Stock is traded on a securities
exchange, The Nasdaq Stock Market, or The Nasdaq SmallCap Market, the fair
market value shall be deemed to be the closing price on the trading day
immediately preceding the date of exercise of the Warrant; or
(2) if the Company's Common Stock is actively traded
over-the-counter, the fair market value shall be deemed to be the closing bid
or sales price (whichever is applicable) on the trading day immediately
preceding the date of exercise of the Warrant; or
(3) if neither (1) nor (2) is applicable, the fair market
value shall be at the highest price per share which the Company could obtain
on the date of calculation from a willing buyer (not a current employee or
director) for shares of Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the Board of Directors,
unless the Company is at such time subject to an acquisition as described in
Section 5(b) below, in which case the fair market value per share of Common
Stock shall be deemed to be the value of the consideration per share received
by the holders of such stock pursuant to such acquisition.
(d) DELIVERY TO HOLDER. As soon as practicable after the exercise of
this Warrant in whole or in part, and in any event within three (3) days
thereafter, the Company at its expense will cause to be issued in the name
of, and delivered to, the Registered Holder, or as such Holder (upon payment
by such Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of shares of
Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of shares of Warrant Stock equal
(without giving effect to any adjustment therein) to the number of such
shares called for on the face of this Warrant minus the number of such
shares purchased by the Registered Holder upon such exercise as provided in
Section 1(a) above.
2. ADJUSTMENTS.
(a) STOCK SPLITS AND DIVIDENDS. If outstanding shares of the
Company's Common Stock shall be subdivided into a greater number of shares or
a dividend in Common Stock shall be paid in respect of Common Stock, the
Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend shall simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend be
proportionately reduced. If outstanding shares of Common Stock shall be
combined into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Purchase Price, the number of shares
of Warrant Stock purchasable upon the exercise of this Warrant shall be
changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior
to such adjustment, multiplied by the Purchase Price in effect immediately
prior to such adjustment, by (ii) the Purchase Price in effect immediately
after such adjustment.
(b) RECLASSIFICATION, ETC. In case of any reclassification or change
of the outstanding securities of the Company or of any reorganization of the
Company (or any other corporation the stock or securities of which are at the
time receivable upon the exercise of this Warrant) or any similar corporate
reorganization or merger or conveyance on or after the date hereof, then and in
each such case the holder of this Warrant, upon the exercise hereof at any time
after the consummation of such reclassification, change, reorganization, merger
or conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section 2(a); and in each such case, the terms of this Section 2
shall be applicable to the shares of stock or other securities properly receiv-
able upon the exercise of this Warrant after such consummation.
(c) ADJUSTMENT CERTIFICATE. When any adjustment is required to be
made in the Purchase Price, the Company shall promptly mail to the Registered
Holder a certificate setting forth the Purchase Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment.
Such certificate shall also set forth the kind and amount of stock or other
securities or property into which this Warrant shall be exercisable following
the occurrence of any of the events specified in Section 2(a) or 2(b) above.
3. TRANSFERS.
(a) UNREGISTERED SECURITY. Each holder of this Warrant acknowledges
that this Warrant and the Warrant Stock have not been registered under the
Securities Act, and agrees not to sell, pledge, distribute, offer for sale,
transfer or otherwise dispose of this Warrant or any Warrant
Stock issued upon its exercise in the absence of (i) an effective
registration statement under the Act as to this Warrant or such Warrant Stock
and registration or qualification of this Warrant or such Warrant Stock under
any applicable U.S. federal or state securities law then in effect or (ii) an
opinion of counsel, satisfactory to the Company, that such registration and
qualification are not required. Each certificate or other instrument for
Warrant Stock issued upon the exercise of this Warrant shall bear a legend
substantially to the foregoing effect until such time as the registration of
the Warrant Stock is effective or until such time as the Warrant Stock has
been held by the holder (after giving effect to permissible tacking under
Rule 144) for at least two years, at and after which time no legend shall be
required.
(b) TRANSFERABILITY. Subject to the provisions of Section 3(a)
hereof, this Warrant and all rights hereunder are transferable, in whole or
in part, upon surrender of the Warrant with a properly executed assignment
(in the form of EXHIBIT B hereto) at the principal office of the Company,
PROVIDED, HOWEVER, that this Warrant may not be transferred in part unless
the transferee and any subsequent tranferee acquires the right to purchase at
least 25,000 shares (as adjusted pursuant to Section 2) of Warrant Stock
hereunder.
(c) WARRANT REGISTER. The Company will maintain a register
containing the names and addresses of the Registered Holders of this Warrant.
Until any transfer of this Warrant is made in the warrant register, the
Company may treat the Registered Holder of this Warrant as the absolute owner
hereof for all purposes; PROVIDED, HOWEVER, that if this Warrant is properly
assigned in blank, the Company may (but shall not be required to) treat the
bearer hereof as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary. Any Registered Holder may change such Registered
Holder's address as shown on the warrant register by written notice to the
Company requesting such change.
4. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will (subject to Section
13 below) at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the holder of this Warrant against
impairment.
5. TERMINATION. This Warrant (and the right to purchase
securities upon exercise hereof) shall terminate upon the earliest to occur
of the following (the "EXPIRATION DATE"): (a) February 27, 2003, or (b) the
effective date of the sale, conveyance, disposal, or encumbrance of all or
substantially all of the Company's property or business or the Company's
merger into or consolidation with any other corporation (other than a
wholly-owned subsidiary corporation) or any other transaction or series of
related transactions in which more than fifty percent (50%) of the voting
power of the Company is disposed of, PROVIDED that this Section 5(b) shall
not apply a merger effected exclusively for the purpose of changing the
domicile of the Company.
6. NOTICES OF CERTAIN TRANSACTIONS. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise
of this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to
subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right, to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company, any consolidation or merger of the Company with or
into another corporation (other than a consolidation or merger in which the
Company is the surviving entity), or any transfer of all or substantially all
of the assets of the Company, or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the Registered Holder of this Warrant a notice specifying, as the case may
be, (i) the date on which a 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, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any
is to be fixed, as of which the holders of record of Common Stock (or such
other stock or securities at the time deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or winding-up) are to be determined. Such notice shall be mailed at least
ten (10) days prior to the record date or effective date for the event
specified in such notice.
7. RESERVATION OF STOCK. The Company will at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock and other stock, securities and
property, as from time to time shall be issuable upon the exercise of this
Warrant.
8. EXCHANGE OF WARRANTS. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Section
3 hereof, issue and deliver to or upon the order of such Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of
such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant or Warrants so
surrendered.
9. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement (with surety if reasonably required) in an amount
reasonably satisfactory to the Company, or (in the case of mutilation) upon
surrender and cancellation of this Warrant, the Company will issue, in lieu
thereof, a new Warrant of like tenor.
10. NOTICES. Any notice required or permitted by this Warrant shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile,
or forty-eight (48) hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage
prepaid, addressed (a) if to the Registered Holder, to the address of the
Registered Holder most recently furnished in writing to the Company and (b)
if to the Company, to the address set forth below or subsequently modified by
written notice to the Registered Holder.
11. NO RIGHTS AS SHAREHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a shareholder of the Company.
12. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share
of Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or
waived only by an instrument in writing signed by the party against which
enforcement of the amendment or waiver is sought.
14. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
15. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
16. REGISTRATION OF SECURITIES.
(a) As soon as possible after the original date of issuance of this
Warrant, the Company shall use its best efforts to prepare and file a
registration statement on Form S-3 (the "REGISTRATION STATEMENT") with the
Commission under the Act to register the resale of the Common Stock issuable
upon exercise of the Warrant ("REGISTRABLE SECURITIES") and thereafter shall
use its best efforts to secure the effectiveness of such Registration
Statement.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
hereunder, and Purchaser or any transferee of the Registrable Securities
(each, a "HOLDER") shall pay all Selling Expenses (as defined below) and
other expenses that are not Registration Expenses relating to the Registrable
Securities resold by Holder. "Registration Expenses" shall mean all expenses,
except for Selling Expenses, incurred by the Company in complying with the
registration provisions herein described, including, without limitation, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company and the Holder (in an amount for
Holder's counsel not to exceed $5,000), blue sky fees and expenses and the
expense of any special audits incident to or required by any such
registration. "Selling Expenses" shall mean all selling commissions,
brokerage or underwriting fees and stock transfer taxes applicable to the
Registrable Securities and all fees and disbursements of counsel for Holder
in excess of $5,000.
(c) In the case of any registration effected by the Company pursuant
to these registration provisions, and subject to the limitations on
registration set forth in Section 16(d) below, the Company will use
commercially reasonable efforts to: (i) keep such registration effective
until two (2) years after the issuance date set forth on page 1 hereof; (ii)
prepare and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
Registration Statement; (iii) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request; (iv)
register and qualify the securities covered by such Registration Statement
under such other securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by the Holders, provided that the Company shall not
be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions; (v) cause all such Registrable Securities registered
as described herein to be listed on each securities exchange and quoted on
each quotation service on which similar securities issued by the Company are
then listed or quoted; and (vi) otherwise use commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission.
(d) The Company may, by written notice to Holder, delay the filing or
effectiveness of, or suspend, the Registration Statement, and require that
Holder immediately cease sales of shares pursuant to such Registration
Statement in any period during which the Company is engaged in any activity
or transaction or preparations or negotiations for any activity or
transaction ("COMPANY ACTIVITY") that the Company desires to keep
confidential for business reasons, if the Company determines in good faith
that the public disclosure requirements imposed on the Company under the Act
in connection with the Registration Statement would require disclosure of the
Company Activity; provided, however, that (A) the Company shall use
commercially reasonable efforts to minimize the length of any such period of
delay or suspension, (B) any such delay or suspension shall be applied in the
same manner to any other resale registration statement then in effect, (C) no
such suspension period shall extend longer than forty-five (45) consecutive
calendar days, (D) no such suspension period may be imposed within forty-five
(45) days following the completion of a prior suspension period, and (E) the
Company shall not impose suspension periods which, in the aggregate, exceed
ninety (90) days in any twelve (12) month period. If the Company delays or
suspends the Registration Statement or requires Holder to cease sales of
shares pursuant to this Section 4(d), the Company shall, as promptly as
practicable following the termination of the circumstance which entitled the
Company to do so, take such actions as may be necessary to file or reinstate
the effectiveness of the Registration Statement and/or give written notice to
Holder authorizing it to resume sales pursuant to such Registration
Statement. If as a result thereof the prospectus included in the
Registration Statement has been amended to comply with the requirements of
the Act, the Company shall enclose such revised prospectus with the notice to
Holders given pursuant to this Section 4(d), and Holder shall make no offers
or sales of shares pursuant to the Registration Statement other than by means
of such revised prospectus. If the Company delays or suspends the
Registration Statement or requires Holder to cease sales of shares pursuant
to this Section 4(d), the Company shall extend the period during which it
maintains effectiveness of the Registration Statement by the number of days
of any such period of delay or suspension.
(e) Holder hereby agrees to comply with the registration provisions
herein described. Holder will only sell Registrable Securities at such time
that information required to be included in the Registration Statement and
previously supplied by Holder is accurate. The Company shall furnish to
Holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
Holders of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing. Holder
agrees that the Company may impose a legend setting forth the provisions of
Section 16(e) on the Registrable Securities during the period of registration.
(f) With a view to making available to the holders the benefits of
Rule 144 promulgated under the Act and any other rule or regulation of the
Commission that may at any time permit Holder to sell Registrable Securities
to the public without registration or pursuant to a registration on Form S-3,
the Company hereby covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
at all times after the issuance of this Warrant; and (ii) file with the
Commission in a timely manner all reports and other documents required of the
Company under the Act and Exchange Act.
(g) INDEMNIFICATION.
(i) To the extent permitted by law, the Company will indemnify
and hold harmless Holder, any underwriter (as defined in the Act) for Holder,
its officers, directors, shareholders or partners and each person, if any,
who controls Holder or underwriter within the meaning of the Act or the
Exchange Act, against any losses, claims, damages, or liabilities to which
they may become subject under the Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"):
(A) any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto or (B) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading; and the Company will pay to each such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 16(g)(i)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by any such Holder, underwriter or controlling person; further provided,
however, that the foregoing indemnity with respect to any untrue statement
in or omission from any preliminary prospectus shall not inure to the benefit
of any Holder from whom the person asserting any such losses, claims, damages
or liabilities purchased the Registrable Securities if a copy of the final
prospectus or any amendment thereto had not been sent or given to such person
at or prior to the written confirmation of the sale
of such Registrable Securities to such person if required by the Act and the
untrue statement or omission of a material fact contained in such preliminary
prospectus was corrected in the final prospectus or amendment and such final
prospectus or amendment was distributed to the Holder prior to such sale of
Registrable Securities.
(ii) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such Registration Statement and any
controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities to which any of the foregoing persons
may become subject, under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 16(g)(ii), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 16 (g)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 16(g)(ii) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder.
(iii) Promptly after receipt by an indemnified party under this
Section 16(g) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
16(g), deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if and only if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 16(g).
17. RESALE RESTRICTIONS. Holder agrees that it will not sell any
Registrable Securities issued hereunder until the effectiveness of the
Registration Statement to be filed pursuant to Section 16 above.
Notwithstanding the foregoing, the Company may suspend resales by the Holder if
an underwriter reasonably determines that such resales would adversely affect
the Company's ability to raise additional capital in a public offering of the
Company's equity securities
and such underwriter issues a written opinion to the Company to that effect.
Any such suspension of resales by the Holder pursuant to the foregoing
sentence will not exceed 120 calendar days commencing on the date of the
secondary offering. The volume and resale restrictions set forth in this
Section 17 shall be set forth in any and all Registration Statements brought
effective pursuant to Section 16 above, and the Company shall instruct its
transfer agent, broker dealers and market makers to enforce the volume
restrictions set forth herein. If the Company suspends resales by the Holder
pursuant to this Section 17, the Company shall extend the period during which
it maintains effectiveness of the Registration Statement by the number of
days of any such period of suspension.
[SIGNATURE PAGE FOLLOWS]
Executed as of the date first set forth herein above.
CENTURA SOFTWARE CORPORATION
By /s/ John Bowman
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Title: CFO
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Address: 975 Island Drive
Redwood Shores, CA 94065
Fax Number: (650)-596-4376
EXHIBIT A
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PURCHASE FORM
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To: Centura Software Corporation Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant No. CS-[WarrantNo], hereby irrevocably elects to purchase _______
shares of the Common Stock covered by such Warrant and herewith makes payment
of $_________, representing the full purchase price for such shares at the
price per share provided for in such Warrant.
The undersigned further acknowledges that it has reviewed the
representations and warranties contained in Section 4 of the Purchase Agreement
(as defined in the Warrant) and by its signature below hereby makes such
representations and warranties to the Company. Defined terms contained in such
representations and warranties shall have the meanings assigned to them in the
Purchase Agreement, PROVIDED that the term "Seller" shall refer to the
undersigned and the term "Securities" shall refer to the Warrant Stock.
Signature:
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Address:
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EXHIBIT B
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ASSIGNMENT FORM
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FOR VALUE RECEIVED, _________________________________________ hereby
sells, assigns and transfers all of the rights of the undersigned under the
attached Warrant with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
NAME OF ASSIGNEE ADDRESS/FAX NUMBER NO. OF SHARES
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Dated: Signature:
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Witness: -------------------------------