Exhibit 4.4
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE COMMON STOCK
This Warrant No. A1 certifies that, for good and valuable
consideration, Berlwood Five, Ltd., a Texas limited partnership ("Holder"), is
entitled to purchase Six Hundred Thousand (600,000) fully paid and nonassessable
shares (the "Shares") of the common stock, $.001 par value per share (the
"Common Stock"), of Emergisoft Holding, Inc., a Nevada corporation (the
"Company"), at the price of One Dollar and Fifty Cents ($1.50) per Share (the
"Warrant Price"), as adjusted pursuant to Article 2 of this Warrant, subject to
the provisions and upon the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Holder may exercise this Warrant by delivering
a duly executed Notice of Exercise in substantially the form attached as Exhibit
A to the principal office of the Company. Unless Holder is exercising the
conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified
in Section 1.1, Holder may from time to time convert this Warrant, in whole or
in part, into a number of Shares determined by dividing (a) the aggregate Fair
Market Value of the Shares issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the Fair Market Value of one
Share. The Fair Market Value of the Shares shall be determined pursuant to
Section 1.3.
1.3 Fair Market Value. If the Shares are traded in a public market, the
Fair Market Value of the Shares shall be the closing price of the Shares
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares are not traded in a public market, the
Board of Directors of the Company shall determine Fair Market Value in its
reasonable good faith judgment.
1.4 Delivery of Certificate and New Warrant. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.5 Replacement of Warrants. On 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, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company,
and, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor.
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1.6 Merger or Consolidation of the Company.
(a) Acquisition. For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any reorganization,
consolidation, or merger of the Company where the holders of the
Company's securities before the transaction beneficially own less than
50% of the outstanding voting securities of the surviving entity after
the transaction.
(b) Assumption of Warrant. Upon the closing of any
Acquisition, the successor entity shall assume the obligations of this
Warrant, and this Warrant shall be exercisable for the same securities,
cash, and property as would be payable for the Shares issuable upon
exercise of the unexercised portion of this Warrant as if such Shares
were outstanding on the record date for the Acquisition and subsequent
closing. The Warrant Price shall be adjusted accordingly.
ARTICLE 2. ADJUSTMENTS TO THE SHARES AND WARRANT PRICE.
2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a
dividend on its Common Stock payable in Common Stock, or other securities, or
subdivides the outstanding Common Stock into a greater amount of Common Stock,
then upon exercise of this Warrant, for each Share acquired, Holder shall
receive, without cost to Holder, the total number and kind of securities to
which Holder would have been entitled had Holder owned the Shares of record as
of the date the dividend or subdivision occurred.
2.2 Reclassification, Exchange or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. The Company or its successor shall promptly issue to Holder a new
Warrant for such new securities or other property. The new Warrant shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new Warrant. The provisions of this section shall
similarly apply to successive reclassifications, exchanges, substitutions, or
other events.
2.3 Adjustments for Combinations, Etc. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased and the number
of Shares acquirable hereunder shall be proportionately decreased.
2.4 No Impairment. The Company shall not, by amendment of its
Certificate of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out of all the provisions of
this Article 2 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Article against impairment. If the Company
takes any action affecting the Shares or its Common Stock other than as
described above that adversely affects Holder's rights under this Warrant, the
Warrant Price shall be adjusted downward and the number of Shares issuable upon
exercise of this Warrant shall be adjusted upward in such a manner that the
aggregate Warrant Price of this Warrant is unchanged.
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2.5 Fractional Shares. No fractional Shares shall be issuable upon
exercise or conversion of this Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional share interest
arises upon any exercise or conversion of this Warrant, the Company shall
eliminate such fractional share interest by paying Holder an amount computed by
multiplying the factional interest by the Fair Market Value of a full Share.
2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant
Price and the number of Shares acquirable hereunder, the Company, at its
expense, shall promptly compute such adjustment and furnish Holder with a
certificate of its Chief Financial Officer setting forth such adjustment and the
facts upon which such adjustment is based. The Company shall, upon written
request, furnish Holder a certificate setting forth the Warrant Price in effect
on the date thereof and the number of Shares acquirable hereunder on such date
and the series of adjustments leading to such Warrant Price and Share number.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company hereby represents and
warrants to the Holder that all Shares which may be issued upon the exercise of
the purchase right represented by this Warrant, shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, and free of any liens
and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws.
3.2 Notice of Certain Events. If the Company proposes at any time: (a)
to declare any dividend or distribution upon its Common Stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of Common Stock; or (d)
to merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up, then, in connection with each such event, the Company shall
give Holder (1) prompt prior written notice of the date on which a record will
be taken for such dividend, distribution, or subscription rights (and specifying
the date on which the holders of Common Stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (c)
and (d) above; and (2) in the case of the matters referred to in (c) and (d)
above, prompt prior written notice of the date when the same will take place
(and specifying the date on which the holders of Common Stock will be entitled
to exchange their Common Stock for securities or other property deliverable upon
the occurrence of such event).
3.3 Automatic Exercise. If, as of the last day of the term hereof, this
Warrant has not been fully exercised, then as of such date this Warrant shall be
automatically converted, in full, in accordance with Section 1.2, without any
action or notice by the Holder.
ARTICLE 4. REGISTRATION RIGHTS.
4.1 Piggyback Registration Rights.
-----------------------------
(a) If, at any time prior to the expiration of two years from
the last date on which this Warrant is validly exercised, the Company
determines to Register any of its securities either for its own account
or the account of a shareholder(s) exercising demand Registration
rights, other than a Registration relating solely to employee benefit
plans, or a Registration relating solely to a transaction pursuant to
Rule 145 promulgated under the Securities Act or a Registration on any
Registration form which does not permit secondary sales or does not
include substantially the
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same information as would be required to be included in a Registration
statement covering the sale of the Shares, the Company shall promptly
give to Holder written notice thereof and include in such Registration
(and any related qualification under blue sky laws), and in any
underwriting involved therein, the number of Shares specified in a
written request made by Holder within ten (10) days after receipt of
such written notice from the Company so long as such Shares have been
acquired or will be acquired pursuant to the exercise of this Warrant
not later than the fifth business day prior to the filing of such
Registration statement.
(b) If the Registration of which the Company gives notice is
for a Registered public offering involving an underwriting, Holder's
right to Registration shall be conditioned upon (i) Holder's
participation in such underwriting and (ii) the inclusion of Holder's
Shares in the underwriting pursuant to an underwriting agreement in
customary form with the underwriter or underwriters selected by the
Company; provided, however, that in the event of any reduction in the
securities to be included in the Registration, the securities that may
be included in the Registration and underwriting shall be allocated (1)
first, to the Company, and (2) second, among the Holder and the other
security holders distributing their securities through such
underwriting, in proportion (as nearly as practicable) to the number of
shares owned by each such party.
4.2 Form S-3 Registration Rights. If, at any time before the last day
on which this Warrant is validly exercised, the Company receives from Holder a
written request or requests that it effect a Registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities of Holder, the Company shall:
(a) promptly give written notice of the proposed Registration,
and any related qualification or compliance, to all other holders of
similar warrants; and
(b) as soon as practicable, effect such Registration and all
such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of the Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
other shareholders joining in such request as are specified in a
written request given within twenty (20) days after receipt of such
written notice from the Company; provided, however, that the Company
shall not be obligated to effect any such Registration, qualification
or compliance, pursuant to this section:
(1) if Form S-3 is not available for such offering by
Holder and the other shareholder(s);
(2) if Holder, together with the holders of any other
securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public
(net of any underwriters' discounts or commissions) of less
than Five Hundred Thousand Dollars ($500,000);
(3) if the Company furnishes to Holder and the
shareholder(s) proposing to participate in such registration,
a certificate signed by the Company's President stating that,
in the good faith judgment of the Company's Board of
Directors, it would be seriously detrimental to the Company
and its shareholders for such Form S-3 Registration to be
effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 Registration
statement for a period of not more than one hundred twenty
(120) days after receipt of Holder's request under this
section; provided, however,
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that the Company shall not utilize this right more than once
in any twelve (12) month period;
(4) if the Company has, within the twenty-four (24)
month period preceding the date of such request, already
effected a Registration on Form S-3 for Holder pursuant to
this section;
(5) in any particular jurisdiction in which the
Company would be required to qualify to do business or to
execute a general consent to service of process in effecting
such Registration, qualification or compliance; or
(6) of Shares which have not been acquired or that
will not be acquired pursuant to the exercise of this Warrant
or similar warrants before the fifth business day prior to the
filing of the Registration statement.
(c) Subject to the foregoing, the Company shall use its best
efforts to file a Registration statement covering the Registrable
Securities and other securities so requested to be Registered as soon
as practicable after receipt of Holder's request.
4.3 Expenses of Company Registrations. The Company shall bear all
Registration expenses incurred in connection with any Registration,
qualification or compliance pursuant to this Article 4 (exclusive of Selling
Expenses).
4.4 Registration Procedures. In the case of each Registration,
qualification or compliance effected by the Company pursuant hereto, the Company
shall keep Holder advised in writing as to the initiation of each Registration,
qualification and compliance and as to the completion thereof. At its expense,
the Company shall:
(a) Keep such Registration, qualification or compliance
effective for a period of one hundred twenty (120) days or until Holder
has completed the distribution described in the Registration statement
relating thereto, whichever first occurs;
(b) Furnish such number of prospectuses and other documents
incident thereto as Holder from time to time may reasonably request;
(c) Prepare and file with the Securities and Exchange
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
Securities Act with respect to the disposition of all securities
covered by such Registration statement;
(d) Use its best efforts to Register and qualify the
securities covered by such Registration statement under such other
securities or blue sky laws of such jurisdictions as Holder reasonably
requests; provided, however, 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;
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Holder shall also enter into and perform its obligations
under such an agreement;
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(f) Notify Holder at any time when a prospectus relating to
Shares is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in
such Registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(g) Provide a transfer agent and registrar for all Registrable
Securities Registered pursuant to such Registration statement and a
CUSIP number for all such Registrable Securities, in each case not
later than the effective date of such Registration; and
(h) Furnish, at Holder's request, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with such Registration, (i) an opinion, dated such date, of
the counsel representing the Company for the purposes of such
Registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters, and (ii) a letter, dated such date, from the Company's
independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters.
4.5 Indemnification.
(a) The Company shall, if Shares are included in the
securities as to which a Registration, qualification or compliance has
been effected pursuant to this Article 4, indemnify Holder, each of
Holder's directors, officers, employees and agents, and each entity or
person controlling Holder within the meaning of Section 15 of the
Securities Act, and each underwriter, if any, and each entity or person
who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expense, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any Registration
statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such Registration,
qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation
by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such
Registration, qualification or compliance, and shall reimburse Holder,
each of Holder's directors, officers, employees and agents, and each
entity or person controlling Holder, each such underwriter and each
entity or person who controls any such underwriter, for any legal and
any other expense reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or
action, provided that the Company shall not be liable to Holder or an
underwriter in any such case to the extent that any such claim, loss,
damage, liability or expense which arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by Holder or an
underwriter and stated to be specifically for use therein.
(b) Holder shall, if Shares are included in the securities as
to which a Registration, qualification or compliance has been effected
pursuant to this Article 4, indemnify the Company, each of its
directors and officers, each underwriter, if any, of the Company's
securities covered by such Registration, qualification or compliance,
each entity or person who controls the Company
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or such underwriter within the meaning of Section 15 of the Securities
Act, and each of its directors, officers, employees and agents, against
all expense, claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement
of any litigation commenced or threatened, arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any Registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereof, incident to
any such Registration, qualification or compliance or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company in
connection with any such Registration, qualification, or compliance,
and shall reimburse the Company, such directors, officers, employees,
agents, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration statement, prospectus offering
circular or other document or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by an instrument duly executed by Holder and stated to be
specifically for use therein; provided, however, that Holder's
obligations hereunder shall be limited to an amount equal to the
proceeds Holder received for Shares sold as contemplated herein.
(c) Each party entitled to indemnification under this section
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at
its own expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this section unless
such failure resulted in actual detriment to the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party a release from all liability in
respect of such claim or litigation.
If the indemnification provided for in this section is held by a court
of competent jurisdiction to be unavailable to an Indemnified Party with respect
to any loss, liability, claim, damage, or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage, or
expense, as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
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ARTICLE 5. DEFINITIONS.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means (i) the Shares, and (ii) shares of
Common Stock issued as a dividend or other distribution with respect to or in
exchange for or in replacement of the Shares; provided, however, that any Shares
described in the foregoing clauses that have been resold to the public shall
cease to be Registrable Securities.
"Registration Expenses" means all expenses the Company incurs in
complying with Article 4, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, Blue Sky fees and expenses, and the expenses of any special audits
incident to or required by any such Registration.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Expenses" means (i) all underwriting discounts and selling
commissions applicable to the sale of securities Registered and sold pursuant to
Article 4, (ii) any additional costs and disbursements of counsel for the
Company that result from inclusion of Registrable Securities in the
Registration, and (iii) the expenses of qualifying the securities covered by the
Registration in a jurisdiction to the extent that the jurisdiction requires such
qualification expense to be borne by the selling security holders.
ARTICLE 6. MISCELLANEOUS.
6.1 Term. The term of this Warrant shall commence on the date hereof
and terminate at 5:00 p.m. Central Time on the tenth (10th) anniversary of the
date hereof.
6.2 Legends. This Warrant and the Shares shall be imprinted with a
legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO
RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
6.3 Compliance with Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise of this Warrant may not be transferred or assigned
in whole or in part without compliance with applicable federal and state
securities laws by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions
reasonably satisfactory to the Company, as reasonably requested by the Company).
The Company shall not require Holder to provide an opinion of counsel if the
transfer is to an affiliate of Holder or if there is no material question as to
the availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail,
the selling broker represents that it has complied with Rule 144(f), and the
Company is provided with a copy of Holder's notice of proposed sale.
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6.4 Transfer Procedure. Subject to the provisions of Section 6.3,
Holder may transfer this Warrant or the Shares issuable upon exercise of this
Warrant by giving the Company notice setting forth the name, address and
taxpayer identification number of the transferee and surrendering this Warrant
to the Company for reissuance to the transferee.
6.5 Notices. All notices and other communications from the Company to
the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished by the Company or the
Holder, as the case may be, in writing by the Company or the Holder from time to
time.
6.6 Waiver. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
6.7 Attorneys' Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
6.8 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to its
principles regarding conflicts of law.
Dated the 3rd day of August, 2001.
EMERGISOFT HOLDING, INC.,
a Nevada corporation
By: /s/ Dan Witte
-----------------------------------------------------
Name: Dan Witte
Chief Operating Officer/Chief Financial
Officer