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As filed with the Securities and Exchange Commission on March 24, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENTIA SOFTWARE PLC
(Exact name of registrant as specified in its charter)
ENGLAND AND WALES NONE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TUITION HOUSE
ST. GEORGE'S ROAD
WIMBLEDON
LONDON SW19 4EU ENGLAND
TELEPHONE: +44 181 971 4000
(Address and telephone number of registrant's principal executive offices)
THE BANK OF NEW YORK
48 WALL STREET
NEW YORK, NEW YORK 10286
TELEPHONE:
(Name, address and telephone number of agent for service of process)
COPIES TO:
WILLIAM J. GRANT, JR. WILLIAM N. DYE
WILLKIE FARR & GALLAGHER WILLKIE FARR & GALLAGHER
787 SEVENTH AVENUE 35 WILSON STREET
NEW YORK, NEW YORK 10019-6099 LONDON EC2M 2UA ENGLAND
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT UNTIL , 2002, OR
UNTIL SUCH EARLIER TIME THAT ALL OF THE SECURITIES REGISTERED HEREUNDER HAVE
BEEN SOLD.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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============================= ---------------- ---------------------- ---------------------- ----------------------
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING AGGREGATE REGISTRATION FEE
PRICE PER UNIT (1) OFFERING PRICE (1)
============================= ================ ====================== ====================== ======================
<S> <C> <C> <C> <C>
Ordinary Shares, nominal
value(pound)0.15 per share... 2,648,647 $10.50 $27,810,794 $7,343
============================= ================ ====================== ====================== ======================
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(1) Estimated solely for the purpose of calculating the registration fee
based on the average of the high and low closing price of the
securities on the Nasdaq National Market on March 22, 2000 pursuant to
Rule 457(c) under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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GENTIA SOFTWARE PLC
2,648,647 ORDINARY SHARES
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THE SHARES OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 4 FOR INFORMATION THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS.
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From time to time, the selling shareholders identified in this
prospectus may offer our Ordinary Shares, nominal value (pound)0.15 per
share, including as represented by American Depositary Shares, or ADSs, for
sale. The selling shareholders may sell the shares or ADSs at prevailing
market prices, at negotiated prices, or a combination of both. We will not
receive any part of the proceeds from the sale of these shares by the selling
shareholders.
Our ADSs are listed on the Nasdaq National Market under the symbol
"GNTI." On March 22, 2000, the last sale price of ADSs on the Nasdaq National
Market was U.S.$10.50 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed on the
adequacy or accuracy of the disclosures in the prospectus. Any representation to
the contrary is a criminal offense.
The selling shareholders may not sell these securities until the
registration statement filed with the Securities and Exchange Commission has
been declared effective. This prospectus is not an offer to sell these
securities nor is it a solicitation of an offer to buy these securities in any
state where the offer or sale is not permitted.
The date of this prospectus is March 24, 2000
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TABLE OF CONTENTS PAGE
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Table ................................................................. 1
Where You Can Find More Information ................................... 2
Incorporation by Reference ............................................ 2
Risk Factors .......................................................... 4
Use of Proceeds ....................................................... 12
Issuances of Shares to Selling Shareholders ........................... 12
Plan of Distribution .................................................. 13
Legal Matters ......................................................... 15
Selling Shareholders .................................................. 15
Experts ............................................................... 15
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SUMMARY
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS AND
DOES NOT CONTAIN ALL OF THE INFORMATION THAT MAY BE IMPORTANT TO YOU. YOU SHOULD
CAREFULLY READ THIS ENTIRE PROSPECTUS AND THE DOCUMENTS INCORPORATED BY
REFERENCE IN THIS PROSPECTUS.
GENTIA
Gentia is a supplier of analytical software applications that enable
clients to maximize their competitive position through deployment of strategy
management, performance measurement and operational analysis solutions. By
leveraging its networked business intelligence solution designed for
enterprise-wide deployment, Gentia enables analytical applications, such as the
Balanced Scorecard, which ensure information delivery to key decision-makers'
desktops and browsers throughout an enterprise. We have headquarters in Boston
and London and operate in more than 20 countries worldwide.
THE OFFERING
From time to time, the selling shareholders identified in this
prospectus may offer shares or ADSs for sale. The selling shareholders may sell
the shares or ADSs at prevailing market prices, at negotiated prices, or a
combination of both. We will not receive any part of the proceeds from the sale
of these shares by the selling shareholders.
ADDRESS AND TELEPHONE
Our address is Gentia Software plc, Tuition House, St. George's Road,
Wimbledon, London SW19 4EU, England. Our telephone number is +44 181 971 4000.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC in Washington, D.C. a Registration Statement
on Form F-3, together with all amendments and exhibits under the U.S. Securities
Act of 1933 with respect to the shares. This prospectus does not contain all of
the information set forth in the registration statement, certain items of which
are omitted in accordance with the rules and regulations of the SEC. Statements
contained in this prospectus as to the contents of any contract or other
document filed as an exhibit to the registration statement summarize the
material terms thereof, but are not necessarily complete. With respect to each
of these documents, reference is made to the copy of the document filed as an
exhibit to the registration statement for a more complete description of the
matter involved. For further information with respect to us, our shares and our
ADSs, we refer you to the registration statement, including the exhibits thereto
and the financial statements, notes and schedules filed as a part thereof and
incorporated by reference to the registration statement. We are subject to the
informational requirements of the U.S. Securities Exchange Act 1934 that are
applicable to a foreign private issuer, and in accordance with these
requirements file periodic reports and other information with the SEC. As a
foreign private issuer, we are exempt from Exchange Act rules regarding the
content and furnishing of proxy statements to shareholders and rules relating to
short swing profits reporting and liability.
The registration statement and the exhibits to the registration
statement and reports and other information filed by us with the SEC may be
inspected and copied by the public at the public reference facilities maintained
by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549 and will also be available for inspection and copying at
the regional offices of the SEC located at Seven World Trade Centre, Suite 1300,
New York, New York 10048 and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of this material may also be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington D.C. 20549 at prescribed rates.
INCORPORATION BY REFERENCE
We incorporate herein by reference
o our Annual Report on Form 20-F for the fiscal year ended December
31, 1998; and
o the financial statements and management's discussion and analysis
of financial condition and results of operations set forth in our
Report on Form 6-K filed November, 1999
In addition, all subsequent filings on Form 20-F and, to the extent, if
any, designated in those filings, Reports on Form 6-K which we file after date
of this prospectus and prior to the termination of distribution contemplated by
this prospectus, are incorporated by reference in this prospectus from the date
of filing or furnishing of such documents or reports, unless otherwise indicated
therein.
Any statement contained in a document incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is incorporated by reference in
this prospectus modifies or supersedes that statement. Any statement so modified
or superseded may not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will provide, without charge to each person to whom a copy of this
prospectus is delivered, upon the written or oral request of any such person, a
copy of any or all of the documents referred to above
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which have been or may be incorporated herein by reference, other than certain
exhibits to the documents. Requests should be directed to the office of our
Chief Financial Officer at +44 181 971 4000.
This document has not been approved as an investment advertisement
under Section 57 of the UK Financial Services Act 1986 and accordingly may not
be issued or passed on in the United Kingdom except to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or to a person to whom such
document may otherwise be lawfully issued or passed on.
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RISK FACTORS
PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED UNDER THIS
REGISTRATION STATEMENT SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS. AN
INVESTMENT IN THE SHARES ENTAILS THE FOLLOWING RISKS:
WE NEED TO MEET TARGETED CASH LEVELS TO CONTINUE OUR OPERATIONS.
Our ability to satisfy our current and future cash requirements is
dependent on meeting revenue targets, cash collection targets and containing
operating expenses. We have, in the past, been unable to meet similar targets,
particularly license revenue targets. We may not meet our projected revenue or
other targets in the future.
Our expense levels are based in significant part on our expectations of
future revenues and therefore are relatively fixed in the short term. If revenue
levels continue to fall below expectations, operating results are likely to be
disproportionately affected. We may not be able to sustain profitability on a
quarterly or annual basis in the future. In addition, it is possible that in
some future quarter our operating results will be below the expectations of
market analysts and investors. In such event, or in the event that adverse
conditions prevail or are perceived to prevail generally or with respect to our
business, the price of our shares and ADSs would likely be materially adversely
affected.
OUR FUTURE OPERATING RESULTS ARE UNCERTAIN AND HAVE VARIED SIGNIFICANTLY IN THE
PAST.
For the year ended December 31, 1998, we experienced a decrease in
license revenues and a loss from operations. Decreases in revenues and losses
from operations may occur in the future.
Our quarterly operating results have in the past and may in the future
vary significantly depending on various factors, including:
o demand for the Gentia software
o the level of price and product competition
o changes in pricing policies made by us or our competitors
o changes in the mix of direct and indirect channels through which
Gentia is offered, and
o the number, timing and significance of product enhancements and
new product announcements, if any, by us or our competitors.
Moreover, these results will likely be affected by the following:
o our ability to develop, introduce and market new and enhanced
versions of Gentia on a timely basis, including analytical
applications that incorporate our K.wiz technology
o the size, timing and structure of significant licenses
o changes in our sales incentive strategy
o enhancements to Gentia or new products such as Balanced Scorecard
or enhancements to products of our competitors, (customer order
deferrals in anticipation, thereof)
o the timing of revenue recognition under our agreements
o the impact of acquisitions by us and our competitors
o the level of our international revenues
o foreign currency exchange rates
o the renewal of maintenance and support agreements
o product life cycles
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o software defects and other product quality problems
o personnel changes
o changes in our strategy
o changes in the level of operating expenses and general domestic
and international economic and political conditions.
WE HAVE LIMITED FINANCIAL RESOURCES, WHICH COULD LIMIT OUR ABILITY TO EXPAND OUR
BUSINESS OR SUPPORT ITS CONTINUED OPERATION.
We have limited financial resources, principally in the form of cash on
hand and accounts receivable. The amounts currently on hand may not be
sufficient to expand our business, support its continued operation. Failure to
manage these resources effectively would have a material adverse effect upon our
business, operating results and financial condition.
OUR OPERATING RESULTS ARE SEASONAL, WHICH MAY AFFECT THE PRICE OF THE SHARES AND
ADSS.
Our operating results, like those of many software companies, reflect
seasonal trends. Our business, operating results and financial condition have in
the past and may in the future be affected by such trends, which may affect our
share price. Orders for Gentia are typically shipped shortly after receipt, and
consequently, order backlog at the beginning of any quarter has in the past
represented only a small portion of that quarter's expected revenues. As a
result, license revenues in any quarter are substantially dependent on orders
booked and shipped in that quarter. Because of the relatively large revenues
produced some of our software licenses, any delay in the closing of an order
could have a significant impact on our operating results for a particular
period.
THE MARKET IN WHICH WE COMPETE IS HIGHLY COMPETITIVE AND FRAGMENTED.
Our current and prospective competitors include companies that offer a
variety of planning and analysis software solutions. We have experienced and
expect to continue to experience increased competition from current and
potential competitors, many of whom have significantly greater financial,
technical, marketing and other resources than us. These competitors may be able
to respond more quickly to new or emerging technologies and changes in customer
requirements or devote greater resources to the development, promotion and sales
of their products than us. Also, certain of our current and potential
competitors have greater name recognition or more extensive customer bases that
could be leveraged, thereby gaining market share to our detriment.
We expect additional competition as other established and emerging
companies enter our markets and new products and technologies are introduced.
Increased competition could result in price reductions, fewer customer orders,
reduced gross margins and loss of market share, any of which could materially
adversely affect our business, operating results and financial condition.
WE ARE HIGHLY DEPENDENT ON A SMALL NUMBER OF PRODUCTS AND UPON THE EMERGING
MARKET FOR MULTIDIMENSIONAL DATABASE SOFTWARE FOR ON-LINE ANALYTICAL PROCESSING.
Substantially all of our revenues are, and historically have been,
derived from licenses for Gentia and related services. We currently expect that
Gentia-related revenues, including Balanced Scorecard, and maintenance and
support contracts, will continue to account for all or substantially all of our
revenues for the foreseeable future. As a result, our future operating results
are dependent upon continued market acceptance of Gentia and enhancements
thereto. A decline in demand for, or market acceptance of, Gentia
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as a result of competition, technological change or other factors would have a
material adverse effect on our business, operating results and financial
condition. Gentia may not achieve any additional degree of market acceptance. If
the market for Gentia fails to grow or grows more slowly than we currently
anticipate, our business, operating results and financial condition would be
materially adversely affected.
Historically, the software industry has experienced significant
periodic downturns. These often occur in connection with, or in anticipation of,
declines in general economic conditions during which management information
systems budgets often decrease. As a result, our business, operating results and
financial condition may in the future reflect substantial fluctuations from
period to period as a consequence of general economic conditions in the software
industry.
WE ARE DEPENDENT ON KEY PERSONNEL.
Our business, operating results and financial condition also are
significantly dependent upon our ability to attract and retain qualified
managerial, sales and technical personnel. Competition for this personnel is
intense and we may be unable to retain our key managerial, sales and technical
employees or to attract, assimilate or retain such highly qualified managerial,
technical or sales personnel as may be required in the future. While certain
employees are bound by proprietary rights agreements, none of our employees are
bound by long-term employment agreements. We do not maintain key man life
insurance on any employee. Additions of new personnel and departures of existing
personnel, particularly in key positions, can be disruptive and could have a
material adverse effect upon our business, operating results and financial
condition.
WE MAY BE UNABLE TO SUFFICIENTLY UPDATE OUR PRODUCTS IN ORDER TO KEEP UP WITH
RAPID TECHNOLOGICAL CHANGE IN THE SOFTWARE INDUSTRY.
The software industry, especially the market in which we compete, is
characterized by rapid technological change, frequent introductions of new
products, changes in customer demands and evolving industry standards. The
introduction of products which include new technologies and the emergence of new
industry standards can render existing products obsolete and unmarketable. The
life cycle of versions of Gentia is difficult to estimate. The introduction or
announcement of new product offerings by us or our competitors may cause
customers to defer or forego purchases of current versions of Gentia, which
could have a material adverse effect on our business, operating results and
financial condition.
Our future success will depend upon our ability to address the
increasingly sophisticated needs of our customers by developing and introducing
enhancements to Gentia on a timely basis that keep pace with technological
developments, emerging industry standards and customer requirements. We may be
unable to meet these demands or achieve and retain any significant degree of
market acceptance. We have in the past experienced minor delays in the release
dates of enhancements to our products. If release dates of any future
enhancements are delayed or if they fail to achieve market acceptance when
released, our business, operating results and financial condition may be
materially adversely affected.
WE MAY EXPERIENCE PROBLEMS FROM THE YEAR 2000 ISSUE.
The Year 2000 issue concerns the potential exposures we and other
companies have because certain computer systems, computer chips and hardware use
two digits, rather than four, to define the applicable year. These systems and
programs may recognize dates in the year 2000 as dates in the year 1900 and may
process data incorrectly or stop processing data altogether.
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Our plan to resolve the Year 2000 Issue involved the following four
phases: assessment, remediation, testing and implementation, all of which were
completed by the end of 1999.
OUR STATE OF READINESS
We commenced our assessment of both the readiness of our internal
business information systems and non IT systems for handling the Year 2000 and
the compliance of products sold by us during the third quarter of the 1998
financial year. We determined that we will need to modify or replace portions of
our internal business information systems so that the systems will function
properly with respect to dates in the Year 2000 and beyond, and did so prior to
the end of 1999. We have not experienced any problems related to the Year 2000
issue.
We believe that our current products such as Gentia 4.0 and RBSC are
Year 2000 compliant. However, prior versions of Gentia, and other products
currently installed at certain customer sites will require upgrading or other
modifications to become Year 2000 compliant. We believe that we are not legally
responsible for costs incurred by these customers to achieve Year 2000
compliance. However, these customers may assert claims against us with respect
to Year 2000 issues and, in the event such claims are asserted and adjudicated
in favor of these customers our liability could be material. We have taken steps
to identify affected customers and persuade them to upgrade to Year 2000
compliant software.
THIRD PARTY COMPLIANCE
We held discussions with our vendors and service providers to evaluate
IT and non IT Year 2000 issues, if any, relating to the interaction of their
systems or products with our internal systems. We received written compliance
information from some of these third parties. Based on the replies received from
and discussions held with all third parties, the risk to which we are exposed
appears to be minimal as all major suppliers have implemented Year 2000
readiness projects or have checked the products they supply. Therefore from the
information received, we did not find a third party with a Year 2000 issue that
would materially affect our results of operations, liquidity or capital
resources. We have had no problems with our vendors and service providers
related to the Year 2000 issue.
COSTS TO ADDRESS OUR YEAR 2000 ISSUES
We deployed staff to address the Year 2000 issue and incurred
approximately $250,000 in connection with remediating Year 2000 compliance
issues. Other expenses have related to the opportunity cost of time spent by our
employees evaluating our internal business information systems, the products
sold by us and the interaction of our internal business information systems with
the internal systems of third parties. Although we are not aware of any single
material operational issue or cost associated with the preparation of our
internal business information systems or our products for the Year 2000, we may
still experience serious unanticipated negative consequences and material costs
caused by undetected errors or defects in the technology used in our internal
business information systems or products we sell. Such unanticipated negative
consequences and material costs, if incurred, could have a material adverse
effect on our business, operating results or financial condition.
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RISKS OF OUR YEAR 2000 ISSUES
In the event that we did not successfully assess Year 2000 compliance
issues facing us and take necessary remedial action, our business, operating
results or financial condition could be adversely effected. In addition,
compliance with Year 2000 issues by third parties with which we interact may
have a material adverse effect on our business, operating results or financial
condition.
SOFTWARE PRODUCTS SUCH AS OURS MAY CONTAIN ERRORS OR DEFECTS.
Software products as internally complex as Gentia frequently contain
errors or defects. Such errors could result in a loss of revenues or delay in
market acceptance and have a material adverse effect on our business, operating
results and financial condition. Despite extensive product testing, we have in
the past released versions of Gentia with defects and software errors. Although
we have not experienced material adverse effects resulting from any such defects
and errors to date, despite our testing and testing by current and potential
customers, defects and errors may be found in new versions or enhancements after
commencement of commercial shipments.
OUR INTERNATIONAL OPERATIONS ENTAIL RISKS TO WHICH A PURELY DOMESTIC BUSINESS
WOULD NOT BE SUBJECT.
A significant amount of our revenues are derived from countries other
than the United States. International sales are subject to inherent risks,
including
o the impact of possible recessionary environments in global
economies including the United States
o costs of localizing products for foreign countries
o longer receivables collection periods and greater difficulty in
accounts receivable collection
o unexpected changes in regulatory requirements
o difficulties and costs of staffing and managing foreign
operations
o reduced protection for intellectual property rights in some
countries
o potentially adverse tax consequences and
o political and economic instability.
We may be unable to sustain or increase revenues from international
licenses of Gentia and maintenance, support and other contracts. The foregoing
factors may have a material adverse effect on our future revenues and,
consequently, on our business, operating results and financial condition.
FLUCTUATIONS IN CURRENCY RATES COULD AFFECT OUR REPORTED FINANCIAL INFORMATION.
Our direct international sales are currently denominated in United
States dollars, euro, UK pounds sterling, Australian dollars, Dutch guilders,
French francs and German marks. We do not currently engage in significant
hedging activities. Fluctuations in currency exchange rates in the future may
have a material adverse impact on revenues from direct international sales and
therefore on our business, operating results and financial condition. Exchange
rate fluctuations in relation to the U.K. pound sterling and other currencies in
which we do business relative to the U.S. dollar may impact our reported
financial information.
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THE SUCCESS OF OUR BUSINESS IS DEPENDENT ON PROPRIETARY RIGHTS.
We rely primarily on a combination of patent, copyright and trademark
laws, trade secrets, confidentiality procedures and contractual provisions to
protect our proprietary rights. Despite our efforts to protect our proprietary
rights, unauthorized parties may attempt to copy aspects of our products or to
obtain and use information that we regard as proprietary. Policing unauthorized
use of our products is difficult, and while we are unable to determine the
extent to which piracy of our software products exists, software piracy can be
expected to be a persistent problem, all of which could adversely effect our
business, operating results and financial condition.
In addition, a substantial portion of our sales now occur in countries
outside of the United States, and the laws of some foreign countries do not
protect our proprietary rights as fully as do the laws of the United States. Our
means of protecting our proprietary rights in the United States or abroad may
not be adequate and our competitors may independently develop similar
technology.
WE ARE DEPENDENT ON SOFTWARE WE LICENSE FROM THIRD PARTIES.
We rely upon certain software that we license from third parties,
including software that is integrated with our internally developed software and
used in Gentia to perform key functions. These third-party software licenses may
not continue to be available to us on commercially reasonable terms. The loss
of, or inability to maintain, any of these software licenses could result in
shipment delays or reductions unless or until equivalent software could be
developed, identified, licensed and integrated. These delays would materially
adversely affect our business, operating results and financial condition.
WE MAY BE SUBJECT TO PRODUCT LIABILITY CLAIMS.
Our license agreements with our customers typically contain provisions
designed to limit our exposure to potential product liability claims. It is
possible, however, that the limitation of liability provisions contained in our
license agreements may not be effective as a result of federal, state or local
laws or ordinances enacted in the future, or unfavorable judicial decisions. A
successful product liability claim brought against us could have a material
adverse effect upon our business, operating results and financial condition.
YOU MAY NOT BE ABLE TO ENFORCE JUDGMENTS AGAINST US, THE SELLING SHAREHOLDERS
AND EACH OF OUR REPRESENTATIVES.
We are a public limited company incorporated under the laws of England
and Wales. Many of our directors and executive officers and certain of the
experts named herein are residents of the United Kingdom. A substantial portion
of our assets, and a substantial portion of the assets of these officers,
directors and experts are located outside the United States. As a result,
holders of shares or ADSs may not be able to effect service of process within
the United States upon such persons to enforce against them judgements of U.S.
courts, including judgements predicated upon the civil liability provisions of
the federal securities laws of the United States. We believe that there is doubt
as to the enforceability in the United Kingdom, in original actions or in
actions for enforcement of judgements of U.S. courts, of civil liabilities,
including those predicated solely upon the federal securities laws of the United
States.
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OUR PRINCIPAL SHAREHOLDERS, OFFICERS AND DIRECTORS HOLD SUFFICIENT SHARES AS A
GROUP TO EXERCISE CONTROL OVER US.
Our present directors, executive officers and principal shareholders
and their affiliates beneficially owned approximately 32.7% of the outstanding
shares, including through ADSs, at May 31, 1999. Assuming all existing
outstanding options are exercised, all present directors, executive officers and
principal shareholders would beneficially own approximately 30.9% of the
outstanding shares. As a result, these shareholders will be able to exercise
control over all matters requiring shareholder approval, including the election
of directors and approval of significant corporate transactions. Such
concentration of ownership may also have the effect of delaying or preventing a
change in control of us.
SUBSTANTIAL AMOUNTS OF OUR ORDINARY SHARES ARE ELIGIBLE FOR FUTURE SALE, WHICH
COULD ADVERSELY EFFECT THE PRICE OF ADSs.
Sales of substantial amounts of shares, in the form of ADSs, in the
public market could adversely effect the market price for the ADSs. As of
December 31, 1999, we had outstanding 10,347,376 shares, of which 6,884,073
represented an equal number of ADSs. Of the remaining 3,463,303 shares
outstanding, 163,303 are freely tradable by persons who are not our "affiliates"
(as defined in Rule 144 of the Securities Act) and all such 3,300,000 shares may
be sold pursuant to an effective registration statement under Securities Act or
an applicable exemption from registration thereunder, including Rule 144 (which
permits resales of securities subject to limitations depending on the holding
period of such securities and in the case of shares held by our affiliates).
CERTAIN OF OUR CORPORATE GOVERNANCE PROVISIONS MAY PREVENT A TAKEOVER OF US,
WHICH MAY BE BENEFICIAL TO HOLDERS OF SHARES AND ADSs.
Certain provisions of our Articles of Association may have the effect
of restricting the possibility of a change in control of us. Any of these
provisions may make it difficult for our shareholders to replace the Board of
Directors. The London City Code on Takeovers and Mergers also requires a general
offer for all our equity and voting non-equity share capital to be made in
certain circumstances, including on the acquisition by any person or persons
acting in concert of shares which carry 30% or more of our voting rights.
Our board of directors has the authority to issue up to 2,000,000
Preference Shares and to determine the price, rights, conversion ratios,
preferences and privileges of those shares without any further vote or action by
our shareholders. The rights of the holders of shares and ADSs will be subject
to and may be adversely affected by, the rights of the holders of the Preference
Shares. Any issuance of Preference Shares, while providing desirable flexibility
in connection with possible acquisitions, financings and other corporate
purposes, could have the effect of making it difficult for a third party to
acquire a majority of our outstanding voting shares and as a result, the
issuance thereof could have a material adverse effect on the market value of the
ADSs.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS.
We may from time to time make written or oral forward-looking
statements, including in this document, in other filings with the SEC, in
reports to shareholders and other communications. Examples of such
forward-looking statements include, but are not limited to:
o statements regarding our results of operations and financial
condition
10
<PAGE>
o statements of our plans, objectives or goals or those of
management, including those related to products or services
o statements of future economic performance and
o statements of assumptions underlying such statements.
Words such as "believes," "anticipates," "expects," "intends" and
"plans" and similar expressions are intended to identify forward-looking
statements but are not the exclusive means of identifying such statements.
By their very nature, forward-looking statements involve inherent risks
and uncertainties, both general and specific, and risks that the predictions,
forecasts, projections and other forward-looking statements will not be
achieved. We caution investors that a number of important factors could cause
actual results to differ materially from the plans, objectives, expectations,
estimates and intentions expressed in the forward-looking statements. When
relying on forward-looking statements to make decisions with respect to us,
investors and others should carefully consider the foregoing risk factors.
Forward-looking statements speak only as of the date on which they are made.
11
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the shares under this prospectus,
including as represented by ADSs, are solely for the account of the selling
shareholders. Accordingly, we will not receive any proceeds from the sale of the
shares or ADSs from the selling shareholders.
ISSUANCE OF SHARES TO SELLING SHAREHOLDERS
CONVERTIBLE LOANS
In August, 1999, we entered into an agreement pursuant to which Robin
Lodge, our Chairman, loaned us U.S.$750,000 and Marshall Services Limited loaned
us $250,000. In November, 1999, we entered into agreements pursuant to which
Marshall Services Limited loaned us an additional $250,000 Rhone Venture Capital
Limited loaned us $500,000 and Alan McGahan loaned us $250,000. Under the terms
each of these agreements, the debt represented by the loans is convertible into
shares at a conversion rate of U.S.$2.25 per share.
In December 1999, we entered into agreements pursuant to which Finsbury
Technology Trust PLC loaned us $1,000,000, Pulsar Technology Fund loaned us
$150,000, Grange Nominees Ltd loaned us $300,000 and Banco Nominees (Guernsey)
Limited loaned us $550,000. Under the terms each of these agreements, the debt
represented by the loans are convertible into shares at a conversion rate of
$4.625 per share.
Each of the selling shareholders has agreed to convert its loans into
shares at the time of the declaration by the SEC of the effectiveness of the
registration statement of which this prospectus forms a part. This conversion
will be under the terms of the original loan agreements.
WARRANTS
In connection with the issuance of the convertible loans, we issued to
the selling shareholders (1) warrants to purchase an aggregate of 1,111,111
shares at an exercise price of $2.25 and (2) warrants to purchase an aggregate
of 216,216 shares at an exercise price of $4.625.
We have filed the registration statement to fulfill our obligations
under the loan agreements and the warrants.
12
<PAGE>
PLAN OF DISTRIBUTION
The shares covered hereby may be offered and sold from time to time by
the selling shareholders. The selling shareholders will act independently of us
in making decisions with respect to the timing, manner and size of each sale.
The shares may be sold by one or more of the following means of distribution,
including as represented by ADSs, or otherwise:
o a block trade in which the broker-dealer so engaged will attempt
to sell shares or ADSs as agent, but may position and resell a
portion of the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o an over-the-counter distribution in accordance with the rules of
the Nasdaq National Market;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
o in privately negotiated transactions.
To the extent required, this prospectus may be amended and supplemented
from time to time to describe a specific plan of distribution. In connection
with distributions of the shares or ADSs or otherwise, the selling shareholders
may enter into hedging transactions with broker-dealers or other financial
institutions. In connection with such transactions, broker-dealers or other
financial institutions may engage in short sales of shares or ADSs in the course
of hedging the positions they assume with the selling shareholders. The selling
shareholders may also enter into option or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or other financial institution of shares or ADSs offered
hereby, which shares or ADSs such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction). The selling shareholders may also pledge shares or ADSs to a
broker-dealer or other financial institution, and, upon a default, such
broker-dealer or other financial institution may effect sales of the pledged
shares or ADSs pursuant to this prospectus (as supplemented or amended to
reflect such transaction). In addition, any shares or ADSs that qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
prospectus. In effecting sales, brokers, dealers or agents engaged by the
selling shareholders may arrange for other brokers or dealers to participate.
The selling shareholders and any underwriter, dealer or agent who participate in
the distribution of such shares may be deemed to be "underwriters" under the
Securities Act, and any discount, commission or concession received by such
persons might be deemed to be an underwriting discount or commission under the
Securities Act.
Broker-dealers and agents may receive commissions from the selling
shareholders (and, if acting as agent for the purchaser of such shares, from
such purchaser) in amounts to be negotiated prior to the sale. Usual and
customary brokerage fees will be paid by the selling shareholders.
Broker-dealers may agree with the selling shareholders to sell a specified
number of shares at a stipulated price per share, and, to the extent such a
broker-dealer is unable to do so acting as agent for the selling shareholders,
to purchase as principal any unsold shares at the price required to fulfill the
broker-dealer commitment to the selling shareholders. Broker-dealers who acquire
shares as principal may thereafter resell such shares from time to time in
transactions (which may involve crosses and block transactions and which may
involve sales to and through other broker-dealers, including transactions of the
nature described above) in the over-the-counter market, in negotiated
transactions or by a combination of such methods of sale or otherwise at
13
<PAGE>
market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
We may require the selling shareholders to suspend further open market
offers and sales of the shares or ADSs if in our reasonable judgment there is or
may be in existence material undisclosed information or events with respect to
us. No sales may be made pursuant to this prospectus after such date unless we
amend or supplement this prospectus to indicate that it has agreed to extend
such period of effectiveness. There can be no assurance that the selling
shareholders will sell all or any of the shares offered hereunder.
14
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth certain information known to us with
respect to beneficial ownership of shares, including through ADSs, by the
selling shareholders. Robin Lodge has been the Chairman of our board of
directors since August, 1999. We may amend or supplement this prospectus from
time to time to update the disclosure set forth below. All figures are based on
the number of ordinary shares outstanding as of December 31, 1999, as adjusted
to include all shares issuable upon (1) conversion of the convertible loans and
(2) exercise of the warrants.
<TABLE>
<CAPTION>
SHARES OFFERED
SELLING SHAREHOLDER ORDINARY SHARES BENEFICIALLY OWNED BY THIS PROSPECTUS
- ------------------- ---------------------------------- ------------------
PERCENTAGE OF
OUTSTANDING
AMOUNT ORDINARY SHARES
------ ---------------
<S> <C> <C> <C>
Robin W.I. Lodge 750,000 5.8% 750,000
Marshall Services Limited 500,000 3.8 500,000
Rhone Venture Capital Limited 500,000 3.8 500,000
Finsbury Technology Trust PLC 324,324 2.5 324,324
Pulsar Technology Fund 46,648 * 48,648
Grange Nominees Ltd. 97,297 * 97,297
Banco Nominees (Guernsey) *
Limited 178,378 178,378
Alan McGahan 49,000 * 49,000
Pinewood Motor Group Limited
Executive Pension Fund** 147,000 1.1 147,000
Pinewood Motor Group
Limited** 49,000 * 49,000
Kate Snelling** 5,000 * 5,000
</TABLE>
- --------------------
* Less than 1.0%.
** Shares indicated will be issued to the selling shareholder pursuant to the
convertible loan and warrants currently in the name of Alan McGahan.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
company by Field Fisher Waterhouse London, England.
EXPERTS
Ernst & Young, independent auditors, have audited our consolidated
financial statements and schedules included in our annual report on form
20-F for the year ended December 31, 1998, as set forth in their report,
which is incorporated by reference in this prospectus. Our financial
statements and schedule are incorporated by reference in reliance on Ernst
& Young's report, given on their authority as experts in accounting and
auditing.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the estimated expenses, other than
underwriting discounts and commissions, to be incurred by the Registrant in
connection with the distribution of the securities registered under this
registration statement.
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
Securities and Exchange Commission registration fee.......................... US$ 8,000
Legal fees and expenses...................................................... 60,000
Accounting fees and expenses................................................. 22,000
Miscellaneous................................................................ 60,000
-----
Total US$150,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 310 of the Companies Act 1985 of Great Britain provides:
"(1) This section applies to any provision, whether contained in a
company's articles or in any contract with the company or
otherwise, for exempting any officer of the company or any
person (whether an officer or not) employed by the company as
auditor from, or indemnifying him against, any liability which
by virtue of any rule of law would otherwise attach to him in
respect of any negligence, default, breach of duty or breach
of trust of which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such
provision is void.
(3) This section does not prevent a company:
(a) from purchasing and maintaining for any such officer
or auditor insurance against any such liability, or
(b) from indemnifying any such officer or auditor against
any liability incurred by him--
(i) in defending any proceedings (whether civil
or criminal) in which judgment is given in
his favor of he is acquitted, or
(ii) in connection with any application under
section 144(3) or (4) (acquisition of shares
by innocent nominee) or section 727 (general
power to grant
II- 1
<PAGE>
relief in case of honest and reasonable
conduct) in which relief is granted to him
by the court."
Section 727 of the Companies Act 1985 of Great Britain provides:
"(1) If in any proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person
employed by a company as auditor (whether he is or is not an
officer of the company) it appears to the court hearing the case
that that officer or person is or may be liable in respect of the
negligence, default, breach of duty or breach of trust, but that
he has acted honestly and reasonably, and that having regard to
all the circumstances of the case (including those connected with
his appointment) he ought fairly to be excused for the
negligence, default, breach of duty or breach of trust, that
court may relieve him, either wholly or partly, from his
liability on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in
respect of any negligence, default, breach of duty or breach of
trust, he may apply to the court for relief; and the court on the
application has the same power to relieve him as under this
section it would have had if it had been a court before which
proceedings against that person for negligence, default, breach
of duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a
judge, with a jury, the judge, AFTER hearing the evidence, may,
if he is satisfied that the defendant or defender ought in
pursuance of that subsection to be relieved either in whole or in
part from the liability sought to be enforced against him,
withdraw the case in whole or in part from the jury and forthwith
direct judgment to be entered for the defendant or defender on
such terms as to costs or otherwise as the judge may think
proper."
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
4.1 Loan Agreement among Gentia Software plc and Marshall Services
Limited, dated as of November 22, 1999.
4.2 Loan Agreement among Gentia Software plc and Rhone Venture Capital
Limited, dated as of November 22, 1999.
4.3 Loan Agreement among Gentia Software plc and Alan McGahan, dated
as of November 22, 1999.
4.4 Loan Agreement among Gentia Software plc and Finsbury Technology
Trust PLC, dated as of December 9, 1999.
4.5 Loan Agreement among Gentia Software plc and Pulsar Technology
Fund, dated as of December 9, 1999.
4.6 Loan Agreement among Gentia Software plc and Grange Nominees Ltd.,
dated as of December 9, 1999.
4.7 Loan Agreement among Gentia Software plc and Banco Nominees
(Guernsey) Limited, dated as of December 9, 1999.
4.8 Warrant to Subscriber for Shares, among Gentia Software plc and
Robin W.I. Lodge, dated August 26, 1999.
4.9 Warrant to Subscribe for Shares for Shares among Gentia Software
plc and Marshall Services Limited, dated August 26, 1999.
4.10 Warrant to Subscribe for Shares among Gentia Software plc and
Rhone Venture Capital Limited, dated November 22, 1999.
4.11 Warrant to Subscribe for Shares among Gentia Software plc and
Alan McGahan, dated November 22, 1999.
4.12 Warrant to Subscribe for Shares among Gentia Software plc and
Finsbury Technology Trust PLC, dated December 9, 1999.
4.13 Warrant to Subscribe for Shares among Gentia Software plc and
Pulsar Technology Fund, dated December 9, 1999.
4.14 Warrant to Subscribe for Shares among Gentia Software plc and
Grange Nominees Ltd., dated December 9, 1999.
4.15 Warrant to Subscribe for Shares among Gentia Software plc and
Banco Nominees (Guernsey) Limited, dated December 9, 1999.
II-3
<PAGE>
4.16 Warrant to Subscribe for Shares among Gentia Software and
Marshall Services Limited, dated November 22, 1999.
4.17 Loan Agreement among Gentia Software plc, Robin W.I. Lodge and
Marshall Services Limited, dated as of August 26, 1999.
5.1 Opinion of Field Fisher Waterhouse
23.1 Consent of Ernst & Young
23.2 Consent of Field Fisher Waterhouse (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-6)
(b) FINANCIAL STATEMENT SCHEDULES:
None.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
per cent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-4
<PAGE>
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of Regulation S-X
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Act need not be furnished, PROVIDED,
that the Registrant included in the prospectus, by means of a
post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least
as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by
Section 10(a)(3) of the Act of Rule 3-19 of Regulation S-X if
such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Form F-3.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to this requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in London, England, on March 24, 2000.
GENTIA SOFTWARE PLC
By: /s/Nick Bray
--------------------------
Name: Nick Bray
Title: Chief Financial Officer
II-6
<PAGE>
Know all persons by these presents that each officer or director whose
signature appears below constitutes and appoints each of the officers and
directors named below, jointly and severally, his or her true and lawful
attorneys-in-fact and agents with full and several power of substitution, for
and in his or her name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments, and supplements to this
registration statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as
they or he or she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or
substitutions, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------- --------------------------- ------------------------
<S> <C> <C>
/s/ Steve Fluin Chief Executive Officer March 24, 2000
- ----------------------------------- and Director
Steve Fluin
/s/ Nick Bray Chief Financial Officer March 24, 2000
- ----------------------------------- (principal financial and
Nick Bray accounting officer)
Director
/s/ Robin Lodge Director and Chairman of March 24, 2000
- ----------------------------------- the Board
Robin Lodge
/s/ R. Alan Wallman Director March 24, 2000
- -----------------------------------
R. Alan Wallman
/s/ Tim Jones Director March 24, 2000
- -----------------------------------
Tim Jones
II-7
<PAGE>
GENTIA SOFTWARE INC.
/s/ Nick Bray Authorized U.S. March 24, 2000
- ----------------------------------- Representative
Name: Nick Bray
Title: Chief Financial Officer
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
4.1 Loan Agreement among Gentia Software plc and Marshall Services
Limited, dated as of November 22, 1999.
4.2 Loan Agreement among Gentia Software plc and Rhone Venture Capital
Limited, dated as of November 22, 1999.
4.3 Loan Agreement among Gentia Software plc and Alan McGahan, dated as
of November 22, 1999.
4.4 Loan Agreement among Gentia Software plc and Finsbury Technology
Trust PLC, dated as of December 9, 1999.
4.5 Loan Agreement among Gentia Software plc and Pulsar Technology
Fund, dated as of December 9, 1999.
4.6 Loan Agreement among Gentia Software plc and Grange Nominees Ltd.,
dated as of December 9, 1999.
4.7 Loan Agreement among Gentia Software plc and Banco Nominees
(Guernsey) Limited, dated as of December 9, 1999.
4.8 Warrant to Subscribe for Shares, among Gentia Software plc and
Robin W.I. Lodge, dated August 26, 1999.
4.9 Warrant to Subscribe for Shares for Shares among Gentia Software
plc and Marshall Services Limited, dated August 26, 1999.
4.10 Warrant to Subscribe for Shares among Gentia Software plc and
Rhone Venture Capital Limited, dated November 22, 1999.
4.11 Warrant to Subscribe for Shares among Gentia Software plc and Alan
McGahan, dated November 22, 1999.
4.12 Warrant to Subscribe for Shares among Gentia Software plc and
Finsbury Technology Trust PLC, dated December 9, 1999.
4.13 Warrant to Subscribe for Shares among Gentia Software plc and
Pulsar Technology Fund, dated December 9, 1999.
4.14 Warrant to Subscribe for Shares among Gentia Software plc and
Grange Nominees Ltd., dated December 9, 1999.
4.15 Warrant to Subscribe for Shares among Gentia Software plc and
Banco Nominees (Guernsey) Limited, dated December 9, 1999.
<PAGE>
4.16 Warrant to Subscribe for Shares among Gentia Software Marshall
Services Limited, dated November 22, 1999.
4.17 Loan Agreement among Gentia Software plc, Robin W.I. Lodge and
Marshall Services Limited, dated as of August 26, 1999.
5.1 Opinion of Field Fisher Waterhouse
23.1 Consent of Ernst & Young
23.2 Consent of Field Fisher Waterhouse (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-6)
<PAGE>
Exhibit 4.1
From: Marshall Services Limited
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
22nd November 1999
Dear Sirs:
1. AMOUNT
I am pleased to make available to you a loan in the principal sum of
$250,000 on the terms and conditions of this letter. The money shall be
paid by Marshall Services Limited (or such other person as we may in
our sole discretion nominate) into an account in the name of Gentia
Software plc at Barclays Bank Plc account number 20684058, sort code
20-65-63.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above the
base rate of Barclays Bank Plc as varied from time to time accruing
daily and payable quarterly in arrears at the end January, April, July
and October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above the base rate of Barclays Bank Plc
as varied from time to time.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with Marshall Services Limited within 7 days
of the date of this letter (the "Security") and provide Marshall
Services Limited with a copy of your and your subsidiaries board
minutes approving your entry into the Security (all in a form
satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $2.25.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to Marshall Services Limited at the
account numbered 20582948 with Barclays Bank of 50 Pall Mall, London
SW1 1QB sort code 20-65-63 or such other account as we may in our sole
discretion nominate and from time to time instruct you in writing. If
any payment becomes due on a day which is not a day on which banks are
generally open for business in London, the due date of such payment
will be extended to the next business day. You will make all payments
under or in respect of this facility without set-off or counterclaim
and free and clear of any withholding or deduction for or on account of
tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post and either by
delivering it to any of your officers at any place or by despatching it
addressed to you at your registered or principal office for the time
being. Any such demand or notice delivered personally shall be deemed
to have been received immediately upon delivery. Any such demand or
notice sent by post shall be sent by a guaranteed next day delivery
service and shall be deemed to have been received at the opening of
business on the second working day following the day on which it was
posted, even if returned undelivered.
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Anthony Fox
Marshall Services Limited
Agreed and Accepted
/s/ Nicholas Bray
Date
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on Monday
22nd November 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Marshall Services Limited was
proposing to lend $500,000 to the Company pursuant to a loan agreement
(the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Marshall Services Limited had offered to
lend the Company $500,000 pursuant to the Loan Agreement repayable by
the Company together with interest (at a rate of two per cent (2%)
above the base rate of Barclays Bank Plc as varied from time to time)
at any time forthwith on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $2.25.
3.4 The Board was asked to consider and, if thought fit, approve the
entering into the Loan Agreement.
<PAGE>
4. APPROVAL OF LOAN AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement and the exercise by the Company of its rights and
the performance by the Company of its obligations thereunder would
materially benefit the Company as it would enable the Company to have
access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
be and are approved and that the signature by any director on the Loan
Agreement in the form produced to the meeting be and are authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed at
Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas Bray
-----------------
Director
<PAGE>
Exhibit 4.2
From: Rhone Venture Capital Limited
Columbus Center Building
Road Town
Tortola
British Virgin Islands
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
22nd November 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$500,000 on the terms and conditions of this letter. The money shall be
paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent at the
agreed rate of 1.60668.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $2.25.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Anthony MacLean Director
for Rhone Venture Capital Limited
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date: 22nd November 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 22nd
November 1999
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Rhone Venture Capital Limited
("RVCL") was proposing to lend $500,000 to the Company pursuant to a
loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that RVCL had offered to lend the Company
$500,000 pursuant to the Loan Agreement repayable by the Company
together with interest (at a rate of two per cent (2%) above one month
US dollar L.I.B.O.R as varied from time to time) at any time forthwith
on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $2.25.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to RVCL warrant certificates entitling RVCL to subscribe at US
dollars 2.25 per share equal to 125% of the number of shares to which
RVCL is entitled to convert its loan under paragraph 5 of the Loan
Agreement. The warrant certificates are to be issued when the ADS
referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
<PAGE>
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the books of
the Company and arrange for all necessary forms to be filed at Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.3
From: Alan McGahan
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
22nd November 1999
Dear Sirs:
1. AMOUNT
I am pleased to make available to you a loan in the principal sum of
$250,000 on the terms and conditions of this letter. The money shall be
paid by Alan McGahan (or such other person as we may in our sole
discretion nominate) into an account in the name of Gentia Software plc
at Barclays Bank Plc account number 20684058, sort code 20-65-63.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above the
base rate of Barclays Bank Plc as varied from time to time accruing
daily and payable quarterly in arrears at the end January, April, July
and October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above the base rate of Barclays Bank Plc
as varied from time to time.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with Alan McGahan within 7 days of the date of
this letter (the "Security") and provide Alan McGahan with a copy of
your and your subsidiaries board minutes approving your entry into the
Security (all in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $2.25.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to Alan McGahan at his account
numbered 10406220 with National Westminster Bank sort code 60-50-01 or
such other account as we may in our sole discretion nominate and from
time to time instruct you in writing. If any payment becomes due on a
day which is not a day on which banks are generally open for business
in London, the due date of such payment will be extended to the next
business day. You will make all payments under or in respect of this
facility without set-off or counterclaim and free and clear of any
withholding or deduction for or on account of tax, save as may be
required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post and either by
delivering it to any of your officers at any place or by despatching it
addressed to you at your registered or principal office for the time
being. Any such demand or notice delivered personally shall be deemed
to have been received immediately upon delivery. Any such demand or
notice sent by post shall be sent by a guaranteed next day delivery
service and shall be deemed to have been received at the opening of
business on the second working day following the day on which it was
posted, even if returned undelivered.
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Alan McGahan
Alan McGahan
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date 22nd November 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on Monday
22nd November 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Alan McGahan was proposing to
lend $250,000 to the Company pursuant to a loan agreement (the "Loan
Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Alan McGahan had offered to lend the Company
$250,000 pursuant to the Loan Agreement repayable by the Company
together with interest (at a rate of two per cent (2%) above the base
rate of Barclays Bank Plc as varied from time to time) at any time
forthwith on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $2.25.
3.4 The Board was asked to consider and, if thought fit, approve the
entering into the Loan Agreement.
<PAGE>
4. APPROVAL OF LOAN AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement and the exercise by the Company of its rights and
the performance by the Company of its obligations thereunder would
materially benefit the Company as it would enable the Company to have
access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
be and are approved and that the signature by any director on the Loan
Agreement in the form produced to the meeting be and are authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed at
Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.4
From: Finsbury Technology Trust PLC
12 Appold Street
London
EC2A 2AW
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
9th December 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$1,000,000 on the terms and conditions of this letter. The money shall
be paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $4.625.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Michael Bourne
for Finsbury Technology Trust PLC
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date: 9th December 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 9th
December 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Finsbury Technology Trust PLC
("FTT") was proposing to lend $1,000,000 to the Company pursuant to a
loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that FTT had offered to lend the Company
$1,000,000 pursuant to the Loan Agreement repayable by the Company
together with interest (at a rate of two per cent (2%) above one month
US dollar L.I.B.O.R as varied from time to time) at any time forthwith
on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $4.625.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to FTT warrant certificates entitling FTT to subscribe at US
dollars 4.625 per share equal to 50% of the number of shares to which
FTT is entitled to convert its loan under paragraph 5 of the Loan
Agreement. The warrant certificates are to be issued when the ADS
referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
<PAGE>
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed
at Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.5
From: Pulsar Technology Fund
C/o W.S. Walker & Company
PO Box 265GT
Walker House
Mary Street
George Town
Grand Cayman
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
9th December 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$150,000 on the terms and conditions of this letter. The money shall be
paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $4.625.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Michael Bourne
for Pulsar Technology Fund
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date: 9th December 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 9th
December 1999
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Pulsar Technology Fund
("Pulsar") was proposing to lend $150,000 to the Company pursuant to a
loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Pulsar had offered to lend the Company
$150,000 pursuant to the Loan Agreement repayable by the Company
together with interest (at a rate of two per cent (2%) above one month
US dollar L.I.B.O.R as varied from time to time) at any time forthwith
on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $4.625.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to Pulsar warrant certificates entitling Pulsar to subscribe at
US dollars 4.625 per share equal to 50% of the number of shares to
which Pulsar is entitled to convert its loan under paragraph 5 of the
Loan Agreement. The warrant certificates are to be issued when the ADS
referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
<PAGE>
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed
at Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.6
From: Grange Nominees Ltd
Account CP2698
PO Box 116
Rue du Commerce
Les Banques
St Peter Port
Guernsey GY1 3UZ
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
9th December 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$300,000 on the terms and conditions of this letter. The money shall be
paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $4.625.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Michael Bourne
DIRECTOR
for Grange Nominees Ltd (Account CP 2698)
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date:
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 9th
December 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Grange Nominees Ltd Account
CP 2698 was proposing to lend $300,000 to the Company pursuant to a
loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Grange Nominees Ltd Account CP 2698 had
offered to lend the Company $300,000 pursuant to the Loan Agreement
repayable by the Company together with interest (at a rate of two per
cent (2%) above one month US dollar L.I.B.O.R as varied from time to
time) at any time forthwith on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $4.625.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to Grange Nominees Ltd Account CP 2698 warrant certificates
entitling Grange Nominees Ltd Account CP 2698 to subscribe at US
dollars 4.625 per share equal to 50% of the number of shares to which
Grange Nominees Ltd Account CP 2698 is entitled to convert its loan
under paragraph 5 of the Loan Agreement. The warrant certificates are
to be issued when the ADS referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
<PAGE>
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed at
Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.7
From: Banco Nominees (Guernsey) Ltd
PO Box 208
Bermuda House
St Julian's Avenue
St Peter Port
Guernsey GY1 3NF
To: Gentia Software plc
Tuition House
St. George's Road
Wimbledon
London SW19 4EU
9th December 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$550,000 on the terms and conditions of this letter. The money shall be
paid into an account in the name of Gentia Software plc at Barclays
Bank Plc account number 20684058, sort code 20-65-63. Payment shall at
our option be made in US dollars or in the sterling equivalent.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above one
month U.S. dollar L.I.B.O.R. as varied from time to time accruing daily
and payable quarterly in arrears at the end January, April, July and
October in each year. However, if you default in the payment or
repayment on the due date of any sum from time to time due under this
letter or if the provisions of clause 4 are not complied with in full,
interest will accrue on a daily basis (payable on demand) on the amount
in respect of which default has been made from the date of default
until actual payment (both before and after judgment) at the rate of
five per cent (5%) per annum above one month U.S. dollar L.I.B.O.R.
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with us within 7 days of the date of this
letter (the "Security") and provide us with a copy of your and your
subsidiaries board minutes approving your entry into the Security (all
in a form satisfactory to us).
<PAGE>
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the Company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $4.625.
6. SET OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to us at such account as we may in
our sole discretion nominate and from time to time instruct you in
writing. If any payment becomes due on a day which is not a day on
which banks are generally open for business in London, the due date of
such payment will be extended to the next business day. You will make
all payments under or in respect of this facility without set-off or
counterclaim and free and clear of any withholding or deduction for or
on account of tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us if (1) you fail to pay any sum under this letter within
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; (5) you cease to
carry on business; or (6) if any of the above events at (2) - (5) occur
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COST AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
<PAGE>
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post or by telefax
and either by delivering it to any of your officers at any place or by
despatching it addressed to you at your registered or principal office
for the time being or if faxed by sending to you on UK fax no: 0181 946
4027. Any such demand or notice delivered personally shall be deemed to
have been received immediately upon delivery. Any such demand or notice
sent by post shall be sent by a guaranteed next day delivery service
and shall be deemed to have been received at the opening of business on
the second working day following the day on which it was posted, even
if returned undelivered or if faxed on the printing of a slip on our
telefax machine showing "transmission OK".
10. PURPOSE
The loan is primarily for working capital purposes.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us or any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully For and on behalf of
BANCO NOMINEES (GUERNSEY) LTD.
/s/ Michael Bourne Authorised Signatory
Agreed and Accepted
/s/ Nicholas P.S. Bray
Date: 9th November 1999
For and on behalf of
GENTIA SOFTWARE PLC
Director
<PAGE>
GENTIA SOFTWARE PLC
Minutes of a Meeting of the Board of Directors held by teleconference on 9th
December 1999.
PRESENT: Robin W. I. Lodge (Chairman)
Alan Wallman
Steve Fluin
Nick Bray
Tim Jones
IN ATTENDANCE:
1. QUORUM
It was noted that a quorum of the Board of Directors was present, and
the Meeting was therefore declared open.
2. PURPOSE
The Chairman reported to the Meeting that Banco Nominees (Guernsey)
Limited ("Banco Nominees") was proposing to lend $550,000 to the
Company pursuant to a loan agreement (the "Loan Agreement").
3. LOAN AGREEMENTS
3.1 There was produced to the meeting the Loan Agreement.
3.2 The Chairman reported that Banco Nominees had offered to lend the
Company $550,000 pursuant to the Loan Agreement repayable by the
Company together with interest (at a rate of two per cent (2%) above
one month US dollar L.I.B.O.R as varied from time to time) at any time
forthwith on demand.
3.3 The Chairman highlighted paragraph 4 of the Loan Agreement which
requires the Company and its subsidiary companies to enter into a
composite guarantee and debenture to be signed within 7 days of the
date of the Loan Agreement and paragraph 5 relating to the conversion
of the loan from debt to equity. It was noted that the Company on
demand for repayment of the loan will forthwith agree the terms upon
which the loan can be converted into American Depository Shares ("ADS")
of the Company which such ADSs being (1) evidenced by American
Depository Receipts, (2) registered under the United States Securities
Act of 1993 (as amended) and (3) listed on the NASDAQ National Market.
Each ADS shall represent one ordinary share, par value 15p of the
Company and for these purposes the deemed market value of each ordinary
share shall be $4.625.
3.4 The Chairman also reported that the Company had agreed in principle to
issue to Banco Nominees warrant certificates entitling Banco Nominees
to subscribe at US dollars 4.625 per share equal to 50% of the number
of shares to which Banco Nominees is entitled to convert its loan under
paragraph 5 of the Loan Agreement. The warrant certificates are to be
issued when the ADS referred to in paragraph 5 are issued.
3.5 The Board was asked to consider and, if thought fit, approve the
entering the Loan Agreement, the composite guarantee and the debenture
and issuing the warrant certificates.
<PAGE>
4. APPROVAL OF AGREEMENTS
4.1 After due and careful consideration, the Board was unanimously of the
opinion that the execution and delivery by or on behalf of the Company
of the Loan Agreement, its composite guarantee and the debenture and
then issue the warrant certificates and the exercise by the Company of
its rights and the performance by the Company of its obligations
thereunder would materially benefit the Company as it would enable the
Company to have access to working capital.
4.2 Accordingly, it was resolved that the entering into the Loan Agreement
the composite guarantee, the debenture and the warrant certificate be
and are approved and that the signature by any director of all and any
such documents in the form produced to the meeting be and are
authorised.
5. FILING OF DOCUMENTS
The Secretary was instructed to completed appropriate entries in the
books of the Company and arrange for all necessary forms to be filed at
Companies House.
6. CLOSE
There being no further business the Meeting concluded.
/s/ Nicholas P.S. Bray
--------------------------------------
Director
<PAGE>
Exhibit 4.8
Certificate No: 100
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 416,667 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Robin Lodge of 65 chemin de Sionnet, 1254 Jussy,
Switzerland is the registered holder of a warrant to subscribe for 416,667
ordinary shares of 15 pence each in Gentia Software plc (the "Company") subject
to the memorandum and articles of association of the Company and otherwise on
the terms and conditions set out overleaf which provide, inter alia, for
adjustment to the number of shares subject to the Warrant and to the Warrant
Price (as defined overleaf) in certain circumstances.
EXECUTED as a deed by the Company on 26th August 1999
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 26th August 2006 by completion of the Notice of
Exercise set out below and lodgement of this Certificate at the then
registered office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
- ---------------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- ---------------------------
- ----------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1 In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 26th August 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Robin Lodge of 65 chemin de Sionnet, 1254
Jussy, Switzerland;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2 This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 26th August 2006 PROVIDED THAT if at any time this
Warrant has been exercised in respect of three fifths or more of the
ordinary shares which are the subject of this Warrant the Company may
by thirty days' written notice to the Registered Holder may require it
to exercise this Warrant in respect of any remaining shares the subject
thereof. At midnight on the said date or after the expiration of the
said notice (whichever is earlier) this Warrant shall become null and
void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.9
Certificate No: 101
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 138,889 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Marshall Services Limited of Craig Muir Chambers, PO Box
71, Road Town, Tortola, British Virgin Islands is the registered holder of a
warrant to subscribe for 138,889 ordinary shares of 15 pence each in Gentia
Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 26th August 1999
SIGNED as a deed and DELIVERED by
GENTIA SOFTWARE PLC acting by a Director
and the Secretary/two Directors:
/s/ Steve Fluin
- ----------------------------------- Director
/s/ Nicholas P.S. Bray
- --------------------------------- Director/Secretary
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period of
seven years after the date of this Certificate and thereafter up to and
including 26th August 2006 by completion of the Notice of Exercise set
out below and lodgement of this Certificate at the then registered office
of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to
subscribe for ** Ordinary Shares of 15p each in your Company and attach a
cheque for US$
Signed:
- -------------------------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- -------------------------------------
__________________________
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 26th August 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3 below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of the
Company;
"Registered Holder" means Marshall Services Limited of Craig Muir Chambers,
PO Box 71, Road Town, Tortola, British Virgin Islands;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered Holder is
entitled to subscribe for the Ordinary Shares which are subject to this
Warrant.
2. This Warrant is held subject to the memorandum and articles of association
of the Company and otherwise on these terms and conditions which are
binding upon the Company and the Registered Holder and all persons claiming
through or under them respectively. This Warrant will be registered and the
subscription rights represented thereby will be transferable.
3. The Registered Holder shall have the right upon exercise of this Warrant to
subscribe in cash for Ordinary Shares. This Warrant is exercisable by the
Registered Holder in whole or in part at any time and from time to time
during a period from the date of this Certificate up to and including 26th
August 2006 PROVIDED THAT if at any time this Warrant has been exercised in
respect of three fifths or more of the ordinary shares which are the
subject of this Warrant the Company may by thirty days' written notice to
the Registered Holder may require it to exercise this Warrant in respect of
any remaining shares the subject thereof. At midnight on the said date or
after the expiration of the said notice (whichever is earlier) this Warrant
shall become null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per Ordinary
Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be completed
and signed by the Registered Holder and lodged at the then registered
office of the Company together with a payment to the Company equal to the
Warrant Price multiplied by the number of Ordinary Shares in respect of
which this Warrant is exercised. Any Notice of Exercise shall be
irrevocable without the written consent of the Company once it has been
lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect of
part only of the Ordinary Shares the subject of this Warrant, a certificate
in respect of the balance will be issued by the Company to the Registered
Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will rank
pari passu in all respects from the date of issue with the remaining
Ordinary Shares then in issue except that they will not rank for dividends
or other distributions declared, made or paid on or after the date of issue
in respect of a financial year (as defined in Section 742 of the Companies
Act 1985) or other accounting reference period of the Company ending on or
before the date of issue nor for dividends or other distributions declared,
resolved upon or publicly announced before the date of exercise of this
Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before the
Final Exercise Date, the Company allots any fully paid Ordinary Shares
by way of capitalisation of profits or reserves to holders of the
Ordinary Shares or effects any consolidation or sub-division of the
Ordinary Shares on such a date, the number and/or nominal value of
Ordinary Shares to be subscribed on any subsequent exercise of
subscription rights attached to this Warrant will as from such date
(or record date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly. On any
such capitalisation, consolidation or sub-division the auditors for
the time being of the Company shall certify the appropriate
adjustments and, within twenty-eight days thereafter, notice will be
sent to the Registered Holder together with a Warrant certificate in
respect of any additional Ordinary Shares for which the Registered
Holder is entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before the
Final Exercise Date the Company makes any offer or invitation (whether
by way of rights issue or otherwise but not being an offer to which
paragraph 10(b) below applies) to the holders of the Ordinary Shares,
or any offer or invitation (not being an offer to which paragraph
10(c) below applies) is made to such holders otherwise than by the
Company, then the Company shall, so far as it is able, procure that at
the same time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had been
exercisable and had been exercised on the day immediately preceding
such date (or record date) on the basis then applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but unissued
share capital to satisfy in full all subscription rights
attached to this Warrant remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares by way of
capitalisation of profits or reserves on or before the Final
Exercise Date unless at the date of such allotment the directors
have authority for the purposes of section 80 of the Companies
Act 1985 to grant the additional rights to subscribe to which
the Registered Holder would by virtue of paragraph 9(a) above be
entitled in consequence of such capitalisation; and
(iii) not make any offer or invitation as is referred to in paragraph
9(b) above to the holders of Ordinary Shares unless:
(aa) where such offer or invitation involves the allotment of
relevant securities (as defined in section 80 of the
Companies Act 1985) the directors shall have authority for
the purposes of that section to allot any such securities as
may require to be allotted to the Registered Holder in
consequence of the Company making the same offer or
invitation to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been disapplied to the
extent (if any) necessary to enable the Company to make such
offer or invitation to the Registered Holder and to make any
allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or invitation
is made by the Company to the holders of Ordinary Shares for the
purchase by the Company of any of its Ordinary Shares, the Company
shall simultaneously give notice thereof to the Registered Holder and
the Registered Holder shall be entitled, at any time while such offer
or invitation is open for acceptance, to exercise its subscription
rights under this Warrant on the terms on which the same could have
been exercised (subject to any adjustment pursuant to paragraph 9(a)
above) so as to take effect as if it had exercised such rights on the
day immediately preceding the record date for such offer or invitation
and the Company shall procure that any such offer or invitation is
extended to any Ordinary Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary Shares
(or all such holders other than the offeror) to acquire the whole or
any part of the issued ordinary share capital of the Company and the
Company becomes aware that as a result of such an offer the right to
cast a majority of the votes which may ordinarily be cast on a poll at
a General Meeting of the Company has or will become vested in the
offeror, the Company shall give notice to the Registered Holder of
such vesting within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the period of
thirty days immediately following the date of such notice but before
the Final Exercise Date, to exercise its subscription rights under
this Warrant on the terms on which the same are then exercisable
(subject to any adjustment pursuant to paragraph 9(a) above) so as to
take effect as if it had exercised its rights on the day immediately
preceding the record date for such offer, and the Company shall use
its best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the publication of a
scheme of arrangement under section 425 of the Companies Act 1985
providing for the acquisition by any person of the whole or any part
of the issued Ordinary share capital of the Company shall be deemed to
be the making of an offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an effective
resolution is passed for winding up the Company the Registered Holder
will (if, in such winding up and on the basis that all subscription
rights attached to this Warrant then unexercised had been exercised in
full and the subscription moneys therefor had been received in full by
the Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis would
exceed in respect of each Ordinary Share a sum equal to the Warrant
Price) be treated as if immediately before the date of such order or
resolution its subscription rights under this Warrant had been
exercisable and had been exercised in full, on the terms on which the
same could then have been exercised (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if it had
exercised such rights on the day immediately preceding the date of
such order or resolution and shall accordingly be entitled to receive
out of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have received
had it been the holder of the Ordinary Shares to which it would have
become entitled by virtue of such subscription after deducting a sum
per Ordinary Share equal to the Warrant Price; subject to the
foregoing all subscription rights shall lapse on liquidation of the
Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary Shares
subject to this Warrant pursuant to any of the provisions of paragraph 9
above, the same shall be referred for determination either by some person,
firm or company nominated jointly for such purpose by the Company and the
Registered Holder or, failing agreement on such joint nomination, by a firm
of Chartered Accountants to be nominated at the request of the Company or
the Registered Holder by the President for the time being of the Institute
of Chartered Accountants in England and Wales and so that any person, firm
or company so nominated shall be deemed to be acting as an expert or
experts and not as an arbitrator or arbitrators and his or their decision
shall be binding on all concerned. The costs of such determination shall be
divided equally between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the consent in writing both of the Company and of the
Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this Warrant
shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.10
Certificate No: 103
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 277,778 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Rhone Venture Capital Limited of Columbus Center
Building, Road Town, Tortola, British Virgin Islands is the registered holder of
a warrant to subscribe for 277,778 ordinary shares of 15 pence each in Gentia
Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 22nd November 1999.
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 22nd November 2006 by completion of the Notice of
Exercise set out below and lodgement of this Certificate at the then
registered office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
- --------------------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- --------------------------------
- ----------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 22nd November 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Rhone Venture Capital Limited of Columbus
Center Building, Road Town, Tortola, British Virgin Islands;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2. This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 22nd November 2006 PROVIDED THAT if at any time
this Warrant has been exercised in respect of three fifths or more of
the ordinary shares which are the subject of this Warrant the Company
may by thirty days' written notice to the Registered Holder may require
it to exercise this Warrant in respect of any remaining shares the
subject thereof. At midnight on the said date or after the expiration
of the said notice (whichever is earlier) this Warrant shall become
null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.11
Certificate No: 102
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 138,889 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Alan McGahan of 26 Beaufort Close, Lyndon Gate, Putney
Heath, London SW15 3TL is the registered holder of a warrant to subscribe for
138,889 ordinary shares of 15 pence each in Gentia Software plc (the "Company")
subject to the memorandum and articles of association of the Company and
otherwise on the terms and conditions set out overleaf which provide, inter
alia, for adjustment to the number of shares subject to the Warrant and to the
Warrant Price (as defined overleaf) in certain circumstances.
EXECUTED as a deed by the Company on 22(nd) November 1999
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 22(nd) November 2006 by completion of the Notice of
Exercise set out below and lodgement of this Certificate at the then
registered office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
___________________________________________________________
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
___________________________________________________________
- ----------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 22nd November 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Alan McGahan of 26 Beaufort Close, Lyndon
Gate, Putney Heath, London SW15 3TL;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2. This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 22nd November 2006 PROVIDED THAT if at any time
this Warrant has been exercised in respect of three fifths or more of
the ordinary shares which are the subject of this Warrant the Company
may by thirty days' written notice to the Registered Holder may require
it to exercise this Warrant in respect of any remaining shares the
subject thereof. At midnight on the said date or after the expiration
of the said notice (whichever is earlier) this Warrant shall become
null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.12
Certificate No: 104
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 108,108 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Finsbury Technology Trust PLC of 12 Appold Street,
London EC2A 2AW is the registered holder of a warrant to subscribe for 108,108
ordinary shares of 15 pence each in Gentia Software plc (the "Company") subject
to the memorandum and articles of association of the Company and otherwise on
the terms and conditions set out overleaf which provide, inter alia, for
adjustment to the number of shares subject to the Warrant and to the Warrant
Price (as defined overleaf) in certain circumstances.
EXECUTED as a deed by the Company on 9th December 1999
SIGNED as a deed and DELIVERED by
GENTIA SOFTWARE PLC acting by a Director
and the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 9th December 2006 by completion of the Notice of Exercise
set out below and lodgement of this Certificate at the then registered
office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
- -------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- -------------------
- -------------------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 9th December 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3 below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of the
Company;
"Registered Holder" means Finsbury Technology Trust PLC of 12 Appold
Street, London EC2A 2AW;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered Holder is
entitled to subscribe for the Ordinary Shares which are subject to this
Warrant.
2. This Warrant is held subject to the memorandum and articles of association
of the Company and otherwise on these terms and conditions which are
binding upon the Company and the Registered Holder and all persons claiming
through or under them respectively. This Warrant will be registered and the
subscription rights represented thereby will be transferable.
3. The Registered Holder shall have the right upon exercise of this Warrant to
subscribe in cash for Ordinary Shares. This Warrant is exercisable by the
Registered Holder in whole or in part at any time and from time to time
during a period from the date of this Certificate up to and including 9th
December 2006 PROVIDED THAT if at any time this Warrant has been exercised
in respect of three fifths or more of the ordinary shares which are the
subject of this Warrant the Company may by thirty days' written notice to
the Registered Holder may require it to exercise this Warrant in respect of
any remaining shares the subject thereof. At midnight on the said date or
after the expiration of the said notice (whichever is earlier) this Warrant
shall become null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$4.625 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be completed
and signed by the Registered Holder and lodged at the then registered
office of the Company together with a payment to the Company equal to the
Warrant Price multiplied by the number of Ordinary Shares in respect of
which this Warrant is exercised. Any Notice of Exercise shall be
irrevocable without the written consent of the Company once it has been
lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect of
part only of the Ordinary Shares the subject of this Warrant, a certificate
in respect of the balance will be issued by the Company to the Registered
Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will rank
pari passu in all respects from the date of issue with the remaining
Ordinary Shares then in issue except that they will not rank for dividends
or other distributions declared, made or paid on or after the date of issue
in respect of a financial year (as defined in Section 742 of the Companies
Act 1985) or other accounting reference period of the Company ending on or
before the date of issue nor for dividends or other distributions declared,
resolved upon or publicly announced before the date of exercise of this
Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before the
Final Exercise Date, the Company allots any fully paid Ordinary Shares
by way of capitalisation of profits or reserves to holders of the
Ordinary Shares or effects any consolidation or sub-division of the
Ordinary Shares on such a date, the number and/or nominal value of
Ordinary Shares to be subscribed on any subsequent exercise of
subscription rights attached to this Warrant will as from such date
(or record date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly. On any
such capitalisation, consolidation or sub-division the auditors for
the time being of the Company shall certify the appropriate
adjustments and, within twenty-eight days thereafter, notice will be
sent to the Registered Holder together with a Warrant certificate in
respect of any additional Ordinary Shares for which the Registered
Holder is entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before the
Final Exercise Date the Company makes any offer or invitation (whether
by way of rights issue or otherwise but not being an offer to which
paragraph 10(b) below applies) to the holders of the Ordinary Shares,
or any offer or invitation (not being an offer to which paragraph
10(c) below applies) is made to such holders otherwise than by the
Company, then the Company shall, so far as it is able, procure that at
the same time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had been
exercisable and had been exercised on the day immediately preceding
such date (or record date) on the basis then applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but unissued share
capital to satisfy in full all subscription rights attached to
this Warrant remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares by way of
capitalisation of profits or reserves on or before the Final
Exercise Date unless at the date of such allotment the directors
have authority for the purposes of section 80 of the Companies
Act 1985 to grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a) above be
entitled in consequence of such capitalisation; and
(iii) not make any offer or invitation as is referred to in paragraph
9(b) above to the holders of Ordinary Shares unless:
(aa) where such offer or invitation involves the allotment of
relevant securities (as defined in section 80 of the
Companies Act 1985) the directors shall have authority for
the purposes of that section to allot any such securities as
may require to be allotted to the Registered Holder in
consequence of the Company making the same offer or
invitation to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been disapplied to the
extent (if any) necessary to enable the Company to make such
offer or invitation to the Registered Holder and to make any
allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or invitation
is made by the Company to the holders of Ordinary Shares for the
purchase by the Company of any of its Ordinary Shares, the Company
shall simultaneously give notice thereof to the Registered Holder and
the Registered Holder shall be entitled, at any time while such offer
or invitation is open for acceptance, to exercise its subscription
rights under this Warrant on the terms on which the same could have
been exercised (subject to any adjustment pursuant to paragraph 9(a)
above) so as to take effect as if it had exercised such rights on the
day immediately preceding the record date for such offer or invitation
and the Company shall procure that any such offer or invitation is
extended to any Ordinary Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary Shares
(or all such holders other than the offeror) to acquire the whole or
any part of the issued ordinary share capital of the Company and the
Company becomes aware that as a result of such an offer the right to
cast a majority of the votes which may ordinarily be cast on a poll at
a General Meeting of the Company has or will become vested in the
offeror, the Company shall give notice to the Registered Holder of
such vesting within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the period of
thirty days immediately following the date of such notice but before
the Final Exercise Date, to exercise its subscription rights under
this Warrant on the terms on which the same are then exercisable
(subject to any adjustment pursuant to paragraph 9(a) above) so as to
take effect as if it had exercised its rights on the day immediately
preceding the record date for such offer, and the Company shall use
its best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the publication of a
scheme of arrangement under section 425 of the Companies Act 1985
providing for the acquisition by any person of the whole or any part
of the issued Ordinary share capital of the Company shall be deemed to
be the making of an offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an effective
resolution is passed for winding up the Company the Registered Holder
will (if, in such winding up and on the basis that all subscription
rights attached to this Warrant then unexercised had been exercised in
full and the subscription moneys therefor had been received in full by
the Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis would
exceed in respect of each Ordinary Share a sum equal to the Warrant
Price) be treated as if immediately before the date of such order or
resolution its subscription rights under this Warrant had been
exercisable and had been exercised in full, on the terms on which the
same could then have been exercised (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if it had
exercised such rights on the day immediately preceding the date of
such order or resolution and shall accordingly be entitled to receive
out of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have received
had it been the holder of the Ordinary Shares to which it would have
become entitled by virtue of such subscription after deducting a sum
per Ordinary Share equal to the Warrant Price; subject to the
foregoing all subscription rights shall lapse on liquidation of the
Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary Shares
subject to this Warrant pursuant to any of the provisions of paragraph 9
above, the same shall be referred for determination either by some person,
firm or company nominated jointly for such purpose by the Company and the
Registered Holder or, failing agreement on such joint nomination, by a firm
of Chartered Accountants to be nominated at the request of the Company or
the Registered Holder by the President for the time being of the Institute
of Chartered Accountants in England and Wales and so that any person, firm
or company so nominated shall be deemed to be acting as an expert or
experts and not as an arbitrator or arbitrators and his or their decision
shall be binding on all concerned. The costs of such determination shall be
divided equally between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the consent in writing both of the Company and of the
Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this Warrant
shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.13
Certificate No: 105
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 16,218 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Pulsar Technology Fund of C/o W.S. Walker & Company, PO
Box 265GT, Walker House, Mary Street, George Town, Grand Cayman is the
registered holder of a warrant to subscribe for 16,218 ordinary shares of 15
pence each in Gentia Software plc (the "Company") subject to the memorandum and
articles of association of the Company and otherwise on the terms and conditions
set out overleaf which provide, inter alia, for adjustment to the number of
shares subject to the Warrant and to the Warrant Price (as defined overleaf) in
certain circumstances.
EXECUTED as a deed by the Company on 9th December 1999.
SIGNED as a deed and DELIVERED by
GENTIA SOFTWARE PLC acting by a Director
and the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period of
seven years after the date of this Certificate and thereafter up to and
including 9th December 2006 by completion of the Notice of Exercise set out
below and lodgement of this Certificate at the then registered office of
the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
- -------------------------------------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- --------------------------------------------------
__________________________
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 9th December 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3 below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of the
Company;
"Registered Holder" means Pulsar Technology Fund of C/o W.S. Walker &
Company, PO Box 265GT, Walker House, Mary Street, George Town, Grand
Cayman;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered Holder is
entitled to subscribe for the Ordinary Shares which are subject to this
Warrant.
2. This Warrant is held subject to the memorandum and articles of association
of the Company and otherwise on these terms and conditions which are
binding upon the Company and the Registered Holder and all persons claiming
through or under them respectively. This Warrant will be registered and the
subscription rights represented thereby will be transferable.
3. The Registered Holder shall have the right upon exercise of this Warrant to
subscribe in cash for Ordinary Shares. This Warrant is exercisable by the
Registered Holder in whole or in part at any time and from time to time
during a period from the date of this Certificate up to and including 9th
December 2006 PROVIDED THAT if at any time this Warrant has been exercised
in respect of three fifths or more of the ordinary shares which are the
subject of this Warrant the Company may by thirty days' written notice to
the Registered Holder may require it to exercise this Warrant in respect of
any remaining shares the subject thereof. At midnight on the said date or
after the expiration of the said notice (whichever is earlier) this Warrant
shall become null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$4.625 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be completed
and signed by the Registered Holder and lodged at the then registered
office of the Company together with a payment to the Company equal to the
Warrant Price multiplied by the number of Ordinary Shares in respect of
which this Warrant is exercised. Any Notice of Exercise shall be
irrevocable without the written consent of the Company once it has been
lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect of
part only of the Ordinary Shares the subject of this Warrant, a certificate
in respect of the balance will be issued by the Company to the Registered
Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will rank
pari passu in all respects from the date of issue with the remaining
Ordinary Shares then in issue except that they will not rank for dividends
or other distributions declared, made or paid on or after the date of issue
in respect of a financial year (as defined in Section 742 of the Companies
Act 1985) or other accounting reference period of the Company ending on or
before the date of issue nor for dividends or other distributions declared,
resolved upon or publicly announced before the date of exercise of this
Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before the
Final Exercise Date, the Company allots any fully paid Ordinary Shares
by way of capitalisation of profits or reserves to holders of the
Ordinary Shares or effects any consolidation or sub-division of the
Ordinary Shares on such a date, the number and/or nominal value of
Ordinary Shares to be subscribed on any subsequent exercise of
subscription rights attached to this Warrant will as from such date
(or record date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly. On any
such capitalisation, consolidation or sub-division the auditors for
the time being of the Company shall certify the appropriate
adjustments and, within twenty-eight days thereafter, notice will be
sent to the Registered Holder together with a Warrant certificate in
respect of any additional Ordinary Shares for which the Registered
Holder is entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before the
Final Exercise Date the Company makes any offer or invitation (whether
by way of rights issue or otherwise but not being an offer to which
paragraph 10(b) below applies) to the holders of the Ordinary Shares,
or any offer or invitation (not being an offer to which paragraph
10(c) below applies) is made to such holders otherwise than by the
Company, then the Company shall, so far as it is able, procure that at
the same time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had been
exercisable and had been exercised on the day immediately preceding
such date (or record date) on the basis then applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but unissued
share capital to satisfy in full all subscription rights
attached to this Warrant remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares by way of
capitalisation of profits or reserves on or before the Final
Exercise Date unless at the date of such allotment the directors
have authority for the purposes of section 80 of the Companies
Act 1985 to grant the additional rights to subscribe to which
the Registered Holder would by virtue of paragraph 9(a) above be
entitled in consequence of such capitalisation; and
(iii) not make any offer or invitation as is referred to in paragraph
9(b) above to the holders of Ordinary Shares unless:
(aa) where such offer or invitation involves the allotment of
relevant securities (as defined in section 80 of the
Companies Act 1985) the directors shall have authority for
the purposes of that section to allot any such securities as
may require to be allotted to the Registered Holder in
consequence of the Company making the same offer or
invitation to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been disapplied to the
extent (if any) necessary to enable the Company to make such
offer or invitation to the Registered Holder and to make any
allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or invitation
is made by the Company to the holders of Ordinary Shares for the
purchase by the Company of any of its Ordinary Shares, the Company
shall simultaneously give notice thereof to the Registered Holder and
the Registered Holder shall be entitled, at any time while such offer
or invitation is open for acceptance, to exercise its subscription
rights under this Warrant on the terms on which the same could have
been exercised (subject to any adjustment pursuant to paragraph 9(a)
above) so as to take effect as if it had exercised such rights on the
day immediately preceding the record date for such offer or invitation
and the Company shall procure that any such offer or invitation is
extended to any Ordinary Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary Shares
(or all such holders other than the offeror) to acquire the whole or
any part of the issued ordinary share capital of the Company and the
Company becomes aware that as a result of such an offer the right to
cast a majority of the votes which may ordinarily be cast on a poll at
a General Meeting of the Company has or will become vested in the
offeror, the Company shall give notice to the Registered Holder of
such vesting within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the period of
thirty days immediately following the date of such notice but before
the Final Exercise Date, to exercise its subscription rights under
this Warrant on the terms on which the same are then exercisable
(subject to any adjustment pursuant to paragraph 9(a) above) so as to
take effect as if it had exercised its rights on the day immediately
preceding the record date for such offer, and the Company shall use
its best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the publication of a
scheme of arrangement under section 425 of the Companies Act 1985
providing for the acquisition by any person of the whole or any part
of the issued Ordinary share capital of the Company shall be deemed to
be the making of an offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an effective
resolution is passed for winding up the Company the Registered Holder
will (if, in such winding up and on the basis that all subscription
rights attached to this Warrant then unexercised had been exercised in
full and the subscription moneys therefor had been received in full by
the Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis would
exceed in respect of each Ordinary Share a sum equal to the Warrant
Price) be treated as if immediately before the date of such order or
resolution its subscription rights under this Warrant had been
exercisable and had been exercised in full, on the terms on which the
same could then have been exercised (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if it had
exercised such rights on the day immediately preceding the date of
such order or resolution and shall accordingly be entitled to receive
out of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have received
had it been the holder of the Ordinary Shares to which it would have
become entitled by virtue of such subscription after deducting a sum
per Ordinary Share equal to the Warrant Price; subject to the
foregoing all subscription rights shall lapse on liquidation of the
Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary Shares
subject to this Warrant pursuant to any of the provisions of paragraph 9
above, the same shall be referred for determination either by some person,
firm or company nominated jointly for such purpose by the Company and the
Registered Holder or, failing agreement on such joint nomination, by a firm
of Chartered Accountants to be nominated at the request of the Company or
the Registered Holder by the President for the time being of the Institute
of Chartered Accountants in England and Wales and so that any person, firm
or company so nominated shall be deemed to be acting as an expert or
experts and not as an arbitrator or arbitrators and his or their decision
shall be binding on all concerned. The costs of such determination shall be
divided equally between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the consent in writing both of the Company and of the
Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this Warrant
shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.14
Certificate No: 106
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 32,432 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Grange Nominees Limited of PO Box 116, Rue du Commerce,
Les Banques, St. Peter Port, Guernsey GY1 3UZ is the registered holder of a
warrant to subscribe for 32,432 ordinary shares of 15 pence each in Gentia
Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 9th December 1999.
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 9th December 2006 by completion of the Notice of Exercise
set out below and lodgement of this Certificate at the then registered
office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
___________________________________________________________
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
___________________________________________________________
- ----------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 9th December 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Grange Nominees Limited of PO Box 116, Rue du
Commerce, Les Banques, St. Peter Port, Guernsey GY1 3UZ;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2. This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 9th December 2006 PROVIDED THAT if at any time this
Warrant has been exercised in respect of three fifths or more of the
ordinary shares which are the subject of this Warrant the Company may
by thirty days' written notice to the Registered Holder may require it
to exercise this Warrant in respect of any remaining shares the subject
thereof. At midnight on the said date or after the expiration of the
said notice (whichever is earlier) this Warrant shall become null and
void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$4.625 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.15
Certificate No: 107
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 59,459 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Banco Nominees (Guernsey) Limited of PO Box 208, Bermuda
House, St. Julian's Avenue, St. Peter Port, Guernsey GY1 3NF is the registered
holder of a warrant to subscribe for 59,459 ordinary shares of 15 pence each in
Gentia Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 9th December 1999.
SIGNED as a deed and DELIVERED by GENTIA SOFTWARE PLC acting by a Director and
the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 9th December 2006 by completion of the Notice of Exercise
set out below and lodgement of this Certificate at the then registered
office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
___________________________________________________________
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
___________________________________________________________
- ----------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 9th December 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3
below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of
the Company;
"Registered Holder" means Banco Nominees (Guernsey) Limited of PO Box
208, Bermuda House, St. Julian's Avenue, St. Peter Port, Guernsey GY1
3NF;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered
Holder is entitled to subscribe for the Ordinary Shares which are
subject to this Warrant.
2. This Warrant is held subject to the memorandum and articles of
association of the Company and otherwise on these terms and conditions
which are binding upon the Company and the Registered Holder and all
persons claiming through or under them respectively. This Warrant will
be registered and the subscription rights represented thereby will be
transferable.
3. The Registered Holder shall have the right upon exercise of this
Warrant to subscribe in cash for Ordinary Shares. This Warrant is
exercisable by the Registered Holder in whole or in part at any time
and from time to time during a period from the date of this Certificate
up to and including 9th December 2006 PROVIDED THAT if at any time this
Warrant has been exercised in respect of three fifths or more of the
ordinary shares which are the subject of this Warrant the Company may
by thirty days' written notice to the Registered Holder may require it
to exercise this Warrant in respect of any remaining shares the subject
thereof. At midnight on the said date or after the expiration of the
said notice (whichever is earlier) this Warrant shall become null and
void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$4.625 per
Ordinary Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be
completed and signed by the Registered Holder and lodged at the then
registered office of the Company together with a payment to the Company
equal to the Warrant Price multiplied by the number of Ordinary Shares
in respect of which this Warrant is exercised. Any Notice of Exercise
shall be irrevocable without the written consent of the Company once it
has been lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect
of part only of the Ordinary Shares the subject of this Warrant, a
certificate in respect of the balance will be issued by the Company to
the Registered Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will
rank pari passu in all respects from the date of issue with the
remaining Ordinary Shares then in issue except that they will not rank
for dividends or other distributions declared, made or paid on or after
the date of issue in respect of a financial year (as defined in Section
742 of the Companies Act 1985) or other accounting reference period of
the Company ending on or before the date of issue nor for dividends or
other distributions declared, resolved upon or publicly announced
before the date of exercise of this Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before
the Final Exercise Date, the Company allots any fully paid
Ordinary Shares by way of capitalisation of profits or
reserves to holders of the Ordinary Shares or effects any
consolidation or sub-division of the Ordinary Shares on such a
date, the number and/or nominal value of Ordinary Shares to be
subscribed on any subsequent exercise of subscription rights
attached to this Warrant will as from such date (or record
date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly.
On any such capitalisation, consolidation or sub-division the
auditors for the time being of the Company shall certify the
appropriate adjustments and, within twenty-eight days
thereafter, notice will be sent to the Registered Holder
together with a Warrant certificate in respect of any
additional Ordinary Shares for which the Registered Holder is
entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before
the Final Exercise Date the Company makes any offer or
invitation (whether by way of rights issue or otherwise but
not being an offer to which paragraph 10(b) below applies) to
the holders of the Ordinary Shares, or any offer or invitation
(not being an offer to which paragraph 10(c) below applies) is
made to such holders otherwise than by the Company, then the
Company shall, so far as it is able, procure that at the same
time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had
been exercisable and had been exercised on the day immediately
preceding such date (or record date) on the basis then
applicable.
10. So long as any subscription rights attached to this Warrant
remain exercisable, save with agreement or sanction pursuant
to paragraph 11 below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but
unissued share capital to satisfy in full all
subscription rights attached to this Warrant
remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares
by way of capitalisation of profits or reserves on or
before the Final Exercise Date unless at the date of
such allotment the directors have authority for the
purposes of section 80 of the Companies Act 1985 to
grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a)
above be entitled in consequence of such
capitalisation; and
(iii) not make any offer or invitation as is referred to in
paragraph 9(b) above to the holders of Ordinary
Shares unless:
(aa) where such offer or invitation involves the
allotment of relevant securities (as defined
in section 80 of the Companies Act 1985) the
directors shall have authority for the
purposes of that section to allot any such
securities as may require to be allotted to
the Registered Holder in consequence of the
Company making the same offer or invitation
to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been
disapplied to the extent (if any) necessary
to enable the Company to make such offer or
invitation to the Registered Holder and to
make any allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or
invitation is made by the Company to the holders of Ordinary
Shares for the purchase by the Company of any of its Ordinary
Shares, the Company shall simultaneously give notice thereof
to the Registered Holder and the Registered Holder shall be
entitled, at any time while such offer or invitation is open
for acceptance, to exercise its subscription rights under this
Warrant on the terms on which the same could have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the record date for
such offer or invitation and the Company shall procure that
any such offer or invitation is extended to any Ordinary
Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary
Shares (or all such holders other than the offeror) to acquire
the whole or any part of the issued ordinary share capital of
the Company and the Company becomes aware that as a result of
such an offer the right to cast a majority of the votes which
may ordinarily be cast on a poll at a General Meeting of the
Company has or will become vested in the offeror, the Company
shall give notice to the Registered Holder of such vesting
within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the
period of thirty days immediately following the date of such
notice but before the Final Exercise Date, to exercise its
subscription rights under this Warrant on the terms on which
the same are then exercisable (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if
it had exercised its rights on the day immediately preceding
the record date for such offer, and the Company shall use its
best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the
publication of a scheme of arrangement under section 425 of
the Companies Act 1985 providing for the acquisition by any
person of the whole or any part of the issued Ordinary share
capital of the Company shall be deemed to be the making of an
offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an
effective resolution is passed for winding up the Company the
Registered Holder will (if, in such winding up and on the
basis that all subscription rights attached to this Warrant
then unexercised had been exercised in full and the
subscription moneys therefor had been received in full by the
Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis
would exceed in respect of each Ordinary Share a sum equal to
the Warrant Price) be treated as if immediately before the
date of such order or resolution its subscription rights under
this Warrant had been exercisable and had been exercised in
full, on the terms on which the same could then have been
exercised (subject to any adjustment pursuant to paragraph
9(a) above) so as to take effect as if it had exercised such
rights on the day immediately preceding the date of such order
or resolution and shall accordingly be entitled to receive out
of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have
received had it been the holder of the Ordinary Shares to
which it would have become entitled by virtue of such
subscription after deducting a sum per Ordinary Share equal to
the Warrant Price; subject to the foregoing all subscription
rights shall lapse on liquidation of the Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary
Shares subject to this Warrant pursuant to any of the provisions of
paragraph 9 above, the same shall be referred for determination either
by some person, firm or company nominated jointly for such purpose by
the Company and the Registered Holder or, failing agreement on such
joint nomination, by a firm of Chartered Accountants to be nominated at
the request of the Company or the Registered Holder by the President
for the time being of the Institute of Chartered Accountants in England
and Wales and so that any person, firm or company so nominated shall be
deemed to be acting as an expert or experts and not as an arbitrator or
arbitrators and his or their decision shall be binding on all
concerned. The costs of such determination shall be divided equally
between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant
may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing both of the Company
and of the Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this
Warrant shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.16
Certificate No: 108
WARRANT TO SUBSCRIBE FOR SHARES
GENTIA SOFTWARE PLC
(Incorporated under the Companies Act 1985 No 2857046)
Warrant to subscribe for 138,889 ordinary shares of 15 pence each
THIS IS TO CERTIFY that Marshall Services Limited of Craig Muir Chambers, PO Box
71, Road Town, Tortola, British Virgin Islands is the registered holder of a
warrant to subscribe for 138,889 ordinary shares of 15 pence each in Gentia
Software plc (the "Company") subject to the memorandum and articles of
association of the Company and otherwise on the terms and conditions set out
overleaf which provide, inter alia, for adjustment to the number of shares
subject to the Warrant and to the Warrant Price (as defined overleaf) in certain
circumstances.
EXECUTED as a deed by the Company on 22nd November 1999
SIGNED as a deed and DELIVERED by
GENTIA SOFTWARE PLC acting by a Director
and the Secretary/two Directors:
/s/ Steve Fluin Director
- ---------------
/s/ Nicholas P.S. Bray Director/Secretary
- ----------------------
IMPORTANT
(1) The Warrant evidenced by this Certificate is exercisable for a period
of seven years after the date of this Certificate and thereafter up to
and including 22nd November 2006 by completion of the Notice of
Exercise set out below and lodgement of this Certificate at the then
registered office of the Company together with the appropriate payment.
<PAGE>
NOTICE OF EXERCISE
To the directors of Gentia Software plc
I/We hereby exercise my/our Warrant evidenced by this Certificate to subscribe
for ** Ordinary Shares of 15p each in your Company and attach a cheque for US$
Signed:
- ------------------
We request that a certificate for the said Ordinary Shares and a balance
certificate in respect of the Warrant be sent by post to us at our risk at the
first address shown or to the agent lodging this Certificate.
Signed:
- -------------------
- -------------------
** Please complete. If no number is inserted the Notice will be deemed to
relate to all the shares subject to the Warrant.
2
<PAGE>
TERMS AND CONDITIONS
1. In these terms and conditions:
"Company" means Gentia Software plc (registered number 2857046);
"Final Exercise Date" means the earlier of 22nd November 2006 and the
expiration of a notice given by the Company pursuant to paragraph 3 below;
"Ordinary Shares" means ordinary shares of 15p each in the capital of the
Company;
"Registered Holder" means Marshall Services Limited of Craig Muir Chambers,
PO Box 71, Road Town, Tortola, British Virgin Islands;
"this Warrant" means the warrant, evidenced by this Certificate, to
subscribe for the number of Ordinary Shares (subject to variation as
specified in this Warrant) specified on the face of this Certificate;
"Warrant Price" means the price per share at which the Registered Holder is
entitled to subscribe for the Ordinary Shares which are subject to this
Warrant.
2. This Warrant is held subject to the memorandum and articles of association
of the Company and otherwise on these terms and conditions which are
binding upon the Company and the Registered Holder and all persons claiming
through or under them respectively. This Warrant will be registered and the
subscription rights represented thereby will be transferable.
3. The Registered Holder shall have the right upon exercise of this Warrant to
subscribe in cash for Ordinary Shares. This Warrant is exercisable by the
Registered Holder in whole or in part at any time and from time to time
during a period from the date of this Certificate up to and including 22nd
November 2006 PROVIDED THAT if at any time this Warrant has been exercised
in respect of three fifths or more of the ordinary shares which are the
subject of this Warrant the Company may by thirty days' written notice to
the Registered Holder may require it to exercise this Warrant in respect of
any remaining shares the subject thereof. At midnight on the said date or
after the expiration of the said notice (whichever is earlier) this Warrant
shall become null and void and of no effect.
4. Subject as hereinafter mentioned, the Warrant Price is US$2.25 per Ordinary
Share.
3
<PAGE>
5. In order to exercise this Warrant the Notice of Exercise must be completed
and signed by the Registered Holder and lodged at the then registered
office of the Company together with a payment to the Company equal to the
Warrant Price multiplied by the number of Ordinary Shares in respect of
which this Warrant is exercised. Any Notice of Exercise shall be
irrevocable without the written consent of the Company once it has been
lodged.
6. If this Warrant is exercised before the Final Exercise Date in respect of
part only of the Ordinary Shares the subject of this Warrant, a certificate
in respect of the balance will be issued by the Company to the Registered
Holder.
7. Ordinary Shares in respect of which this Warrant is exercised will be
issued only to the Registered Holder.
8. Ordinary Shares issued pursuant to the exercise of this Warrant will rank
pari passu in all respects from the date of issue with the remaining
Ordinary Shares then in issue except that they will not rank for dividends
or other distributions declared, made or paid on or after the date of issue
in respect of a financial year (as defined in Section 742 of the Companies
Act 1985) or other accounting reference period of the Company ending on or
before the date of issue nor for dividends or other distributions declared,
resolved upon or publicly announced before the date of exercise of this
Warrant.
9. Adjustment of subscription rights attached to this Warrant
(a) If, on a date (or by reference to a record date) on or before the
Final Exercise Date, the Company allots any fully paid Ordinary Shares
by way of capitalisation of profits or reserves to holders of the
Ordinary Shares or effects any consolidation or sub-division of the
Ordinary Shares on such a date, the number and/or nominal value of
Ordinary Shares to be subscribed on any subsequent exercise of
subscription rights attached to this Warrant will as from such date
(or record date) be increased or, as the case may be, reduced in due
proportion and the Warrant Price will be adjusted accordingly. On any
such capitalisation, consolidation or sub-division the auditors for
the time being of the Company shall certify the appropriate
adjustments and, within twenty-eight days thereafter, notice will be
sent to the Registered Holder together with a Warrant certificate in
respect of any additional Ordinary Shares for which the Registered
Holder is entitled to subscribe in consequence of such adjustments,
fractional entitlements being ignored.
4
<PAGE>
(b) If, on a date (or by reference to a record date) on or before the
Final Exercise Date the Company makes any offer or invitation (whether
by way of rights issue or otherwise but not being an offer to which
paragraph 10(b) below applies) to the holders of the Ordinary Shares,
or any offer or invitation (not being an offer to which paragraph
10(c) below applies) is made to such holders otherwise than by the
Company, then the Company shall, so far as it is able, procure that at
the same time the same offer or invitation is made to the Registered
Holder as if its subscription rights under this Warrant had been
exercisable and had been exercised on the day immediately preceding
such date (or record date) on the basis then applicable.
10. So long as any subscription rights attached to this Warrant remain
exercisable, save with agreement or sanction pursuant to paragraph 11
below:
(a) the Company shall:
(i) keep available for issue sufficient authorised but unissued share
capital to satisfy in full all subscription rights attached to
this Warrant remaining exercisable;
(ii) not make any allotment of fully paid Ordinary Shares by way of
capitalisation of profits or reserves on or before the Final
Exercise Date unless at the date of such allotment the directors
have authority for the purposes of section 80 of the Companies
Act 1985 to grant the additional rights to subscribe to which the
Registered Holder would by virtue of paragraph 9(a) above be
entitled in consequence of such capitalisation; and
(iii) not make any offer or invitation as is referred to in paragraph
9(b) above to the holders of Ordinary Shares unless:
(aa) where such offer or invitation involves the allotment of
relevant securities (as defined in section 80 of the
Companies Act 1985) the directors shall have authority for
the purposes of that section to allot any such securities as
may require to be allotted to the Registered Holder in
consequence of the Company making the same offer or
invitation to the Registered Holder in accordance with
paragraph 9(b) above; and
5
<PAGE>
(bb) section 89(1) of such Act shall have been disapplied to the
extent (if any) necessary to enable the Company to make such
offer or invitation to the Registered Holder and to make any
allotment pursuant thereto;
(b) if at any time before the Final Exercise Date an offer or invitation
is made by the Company to the holders of Ordinary Shares for the
purchase by the Company of any of its Ordinary Shares, the Company
shall simultaneously give notice thereof to the Registered Holder and
the Registered Holder shall be entitled, at any time while such offer
or invitation is open for acceptance, to exercise its subscription
rights under this Warrant on the terms on which the same could have
been exercised (subject to any adjustment pursuant to paragraph 9(a)
above) so as to take effect as if it had exercised such rights on the
day immediately preceding the record date for such offer or invitation
and the Company shall procure that any such offer or invitation is
extended to any Ordinary Shares arising from such exercise;
(c) if at any time an offer is made to all the holders of Ordinary Shares
(or all such holders other than the offeror) to acquire the whole or
any part of the issued ordinary share capital of the Company and the
Company becomes aware that as a result of such an offer the right to
cast a majority of the votes which may ordinarily be cast on a poll at
a General Meeting of the Company has or will become vested in the
offeror, the Company shall give notice to the Registered Holder of
such vesting within fourteen days of its becoming so aware, and the
Registered Holder shall be entitled, at any time within the period of
thirty days immediately following the date of such notice but before
the Final Exercise Date, to exercise its subscription rights under
this Warrant on the terms on which the same are then exercisable
(subject to any adjustment pursuant to paragraph 9(a) above) so as to
take effect as if it had exercised its rights on the day immediately
preceding the record date for such offer, and the Company shall use
its best endeavours to ensure that such offer is extended to any
Ordinary Shares arising from such exercise (and the publication of a
scheme of arrangement under section 425 of the Companies Act 1985
providing for the acquisition by any person of the whole or any part
of the issued Ordinary share capital of the Company shall be deemed to
be the making of an offer for the purposes of this sub-paragraph (c));
6
<PAGE>
(d) if before the Final Exercise Date an order is made or an effective
resolution is passed for winding up the Company the Registered Holder
will (if, in such winding up and on the basis that all subscription
rights attached to this Warrant then unexercised had been exercised in
full and the subscription moneys therefor had been received in full by
the Company there shall be a surplus available for distribution
amongst the holders of the Ordinary Shares which on such basis would
exceed in respect of each Ordinary Share a sum equal to the Warrant
Price) be treated as if immediately before the date of such order or
resolution its subscription rights under this Warrant had been
exercisable and had been exercised in full, on the terms on which the
same could then have been exercised (subject to any adjustment
pursuant to paragraph 9(a) above) so as to take effect as if it had
exercised such rights on the day immediately preceding the date of
such order or resolution and shall accordingly be entitled to receive
out of the assets available in the liquidation pari passu with the
holders of the Ordinary Shares such a sum as it would have received
had it been the holder of the Ordinary Shares to which it would have
become entitled by virtue of such subscription after deducting a sum
per Ordinary Share equal to the Warrant Price; subject to the
foregoing all subscription rights shall lapse on liquidation of the
Company.
11. If any question shall arise in regard to the nature or extent of any
adjustment to be made to the Warrant Price or the number of Ordinary Shares
subject to this Warrant pursuant to any of the provisions of paragraph 9
above, the same shall be referred for determination either by some person,
firm or company nominated jointly for such purpose by the Company and the
Registered Holder or, failing agreement on such joint nomination, by a firm
of Chartered Accountants to be nominated at the request of the Company or
the Registered Holder by the President for the time being of the Institute
of Chartered Accountants in England and Wales and so that any person, firm
or company so nominated shall be deemed to be acting as an expert or
experts and not as an arbitrator or arbitrators and his or their decision
shall be binding on all concerned. The costs of such determination shall be
divided equally between the Company and the Registered Holder.
12. All or any of the rights for the time being attached to this Warrant may
from time to time (whether or not the Company is being wound up) be altered
or abrogated with the consent in writing both of the Company and of the
Registered Holder.
13. This Warrant is not transferable. If the Registered Holder purports to
transfer this Warrant in whole or in part to any other person this Warrant
shall cease to have effect and shall become null and void.
7
<PAGE>
Exhibit 4.17
From: Robin W. I. Lodge/Marshall Services Limited
To: Gentia Software plc
Tuition House
St George's Road
Wimbledon
London SW19 4EU
August 1999
Dear Sirs:
1. AMOUNT
We are pleased to make available to you a loan in the principal sum of
$1,000,000 on the terms and conditions of this letter. The money shall
be paid by Robin W. I. Lodge (or such other person as we may in our
sole discretion nominate) into an account in the name of Gentia
Software plc at Barclays Bank Plc account number 20684058, sort code
20-65-63 and you may draw the loan in amounts of no more than $400,000
on not less than 1 business day's notice to Barclays Bank Plc.
2. REPAYMENT
You will repay the loan together with interest on it at any time
forthwith on demand.
3. INTEREST
The principal amount of the loan outstanding from time to time will
carry interest at the rate of two per cent (2%) per annum above the
base rate of Barclays Bank Plc as varied from time to time accruing
daily and payable quarterly in arrears at the end of November,
February, May and August in each year. However, if you default in the
payment or repayment on the due date of any sum from time to time due
under this letter or if the provisions of clause 4 are not complied
with in full, interest will accrue on a daily basis (payable on demand)
on the amount in respect of which default has been made from the date
of default until actual payment (both before and after judgment) at the
rate of five per cent (5%) per annum above the base rate of Barclays
Bank Plc as varied from time to time.
<PAGE>
4. SECURITY
As security for your obligations to us under this loan you and your
subsidiaries shall enter into a composite guarantee and debenture (in a
form satisfactory to us) with Robin W. I. Lodge within 7 days of the
date of this letter (the "Security") and provide Robin W. I. Lodge with
a copy of your and your subsidiaries board minutes approving your entry
into the Security (all in a form satisfactory to us).
5. CONVERSION FROM DEBT TO EQUITY
On demand by us for the repayment of the loan you will forthwith agree
the terms upon which the loan can at our election be converted into
American Depository Shares ("ADS") of the company with such ADSs being
(1) evidenced by American Depository Receipts, (2) registered under the
United States Securities Act of 1993 (as amended) and (3) listed on the
NASDAQ National Market. Each ADS shall represent one ordinary share,
par value 15p of the Company and for these purposes the deemed market
value of each share shall be $2.25.
6. SET-OFF
You will make all payments under or in respect of this facility for
value on the due date in US dollars to Robin W. I. Lodge at his account
numbered 20582948 with Barclays Bank Plc of 50 Pall Mall, London, SW1
1QB sort code 20-65-63 or such other account as we may in our sole
discretion nominate and from time to time instruct you in writing. If
any payment becomes due on a day which is not a day on which banks are
generally open for business in London, the due date of such payment
will be extended to the next business day. You will make all payments
under or in respect of this facility without set-off or counterclaim
and free and clear of any withholding or deduction for or on account of
tax, save as may be required by law.
7. MANDATORY PREPAYMENT
Notwithstanding the above provisions of this letter, the loan and all
interest on it will become due and payable or repayable forthwith on
demand by us (1) you fail to pay any sum under this letter within the
three business days of its due date or you are in breach of any other
provision of this letter or the Security when it is in place; or (2) an
administration order is made in relation to you or a receiver or
manager or administrative receiver is appointed of you or any of your
assets or you enter into liquidation; or (3) any distress or execution
is levied on or affects any material part of your property or assets;
or (4) you are insolvent or unable to pay your debts; or (5) you cease
to carry on business; or (6) if any of the above events at (2) - (5)
occur
<PAGE>
to any of your subsidiaries which have entered into the Security or (7)
if any event analogous to those set out at (2) - (5) above occurs to
you or any of your subsidiaries which have entered into the Security,
occurs in any other jurisdiction to which you or such subsidiaries are
subject.
8. COSTS AND EXPENSES
You will pay, on demand all reasonable costs and expenses (and VAT)
which we may from time to time incur in connection with the enforcement
of my rights under this letter and/or the loan.
9. NOTICES
Any demand or notice in respect of this letter and/or the loan will be
in writing and (without prejudice to any other effective means of
serving it) may be served on you personally or by post and either by
delivering it to any of your officers at any place or by despatching it
addressed to you at your registered or principal office for the time
being. Any such demand or notice delivered personally shall be deemed
to have been received immediately upon delivery. Any such demand or
notice sent by post shall be sent by a guaranteed next day delivery
service and shall be deemed to have been received at the opening of
business on the second working day following the day on which it was
posted, even if returned undelivered.
10. PURPOSE
The loan is primarily for working capital purposes and can be drawn
down in accordance with paragraph 1 above.
11. TIME OF THE ESSENCE
Time shall be of the essence in respect of your obligations under or in
respect of this facility but no failure by us to exercise or delay in
exercising any right or remedy under or in respect of this facility
shall operate as a waiver of it, nor shall any single partial or
defective exercise by us of any such right or remedy preclude any other
or further exercise of that or any other right or remedy.
12. GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English Law and all disputes in connection with this letter and loan
shall be subject to the non-exclusive jurisdiction of the courts of
England.
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13. ACCEPTANCE
To accept the terms and conditions of this letter, please sign and
return the enclosed copy failing which this letter will lapse and the
loan will not be available to you.
Yours faithfully
/s/ Robin W. I. Lodge
Robin W. I. Lodge
Anthony Fox
For and on behalf of
Marshall Services Limited
/s/ Nicholas P. S. Bray /s/ S. R. Fluin /s/ R. A. Wallman
Agreed and accepted S. R. Fluin R. A. Wallman
Date 26th August 2000
For and on behalf of
GENTIA SOFTWARE PLC
Director
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Exhibit 5.1
Gentia Software Plc
Tuition House
St. George's Road
Wimbledon
London
SW19 4EU
14 March 2000
Dear Sirs
We have acted as English legal advisers to Gentia Software Plc (the "COMPANY"),
a public limited company incorporated in England and Wales, with respect to the
Company's Registration Statement on Form F-3 (the "REGISTRATION STATEMENT") to
be filed by the Company with the U.S. Securities and Exchange Commission on or
about 13 March 2000, in connection with the registration by the Company, under
the Securities Act 1933, as amended, of an aggregate of 2,648,647 American
Depositary Shares representing ordinary shares of par value (pound)0.15 per
share in the Company (the "SHARES").
We have examined, among other things, originals and/or copies of such documents,
certificates and records as we have deemed necessary and appropriate for the
purpose of preparing this opinion.
We have assumed without investigation the authenticity and completeness of all
documents submitted to us as originals or copies, the genuineness of all
signatories and the conformity to original documents of all copies.
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We have assumed that at the date of allotment of any of the Shares the Company
is solvent and the Company has not by such date passed a voluntary winding-up
resolution, no petition has been presented or order made for the winding-up,
dissolution or administration of the Company and no receiver, administrative
receiver, administrator or similar officer has been appointed in relation to the
Company or any of its assets by the date of such allotment.
We have also made such examination of English law as we have felt necessary in
order to render this opinion. We have made no investigation, and express no
opinion, as to any law other than English law in force at and as interpreted at
the date of this opinion. We are not qualified to, and we do not, express an
opinion on the laws of any other jurisdiction.
Based on the foregoing and the following restrictions, we are of the opinion
that the board of directors of the Company has authority to allot the Shares
and, when allotted by the board of directors, the Shares will be legally issued,
fully paid, and not subject to any calls under the laws of England and Wales.
The following restrictions apply to the opinion given in the preceding
paragraph:
1. We have assumed that the board of directors will allot the Shares in
accordance with all necessary procedures contained in English law and the
Company's Articles of Association.
2. We have assumed that upon allotment the directors will duly enter the
allotees' names in the register of members.
3. The directors' authority to allot shares, given by ordinary resolution on 2
February 2000 is for a period of 5 years from 2 February 2000.
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4. The board of directors has expressed its intention to seek a renewal of
this authority annually but, if the renewal is not obtained, it will lapse
after 5 years from the above date or on the expiry date of the last
subsequent renewal of authority.
5. The Company has by special resolution disapplied statutory pre-emption
rights on allotment of shares for the term of the above authority. The
disapplication of pre-emption rights ceases to have effect if the authority
to allot shares lapses. The period for which any renewal of this
dissapplication can be made is limited to such period which, at the time of
such renewal, is equal to the period of the directors' authority to allot
shares.
6. The Company presently has sufficient authorised unissued share capital to
issue the Shares. If the Company issues ordinary shares so that the balance
of ordinary shares of (pound)0.15 each contained in its authorised unissued
share capital is less than the number of Shares, then the directors of the
Company will not have the authority to allot the excess Shares.
7. It is open to a Company to change its articles of association by special
resolution and/or to change its authorised share capital by ordinary
resolution. It is also open to a Company by ordinary resolution to revoke
the directors' authority to allot shares and by special resolution to
revoke the disapplication of statutory pre-emption rights. Such changes
could mean that the directors of the Company will not have or will have
limited authority to allot the Shares and could remove the statutory
disapplication of pre-emption rights or create non statutory pre-emption
rights.
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8. We have assumed that the Company has not, without our knowledge, held any
general meetings of its shareholders since 2 February 2000.
9. We have relied upon a statement of fact from the Company that the board of
directors has not, without our knowledge, allotted, or entered into any
unconditional contract to allot, any shares under its authority since 27
September 1999 which would result in the Company not having sufficient
authorised unissued share capital to issue the Shares.
We give no opinion as the application of United States federal or state laws,
including the "Blue Sky" or securities laws of the various states.
We hereby consent to being named as counsel for the Company in the Registration
Statement and under the caption "Legal Matters" in the prospectus included in
the Registration Statement and to the filing of this opinion as an exhibit to
the Registration Statement.
This opinion is to be governed by and constructed in accordance with English
law.
Yours faithfully
FIELD FISHER WATERHOUSE
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form F-3) and related Prospectuses of Gentia
Software plc for the registration of 2,648,647 of its ordinary shares
represented by American Depository Shares and to the incorporation by reference
therein of our report dated 30 June , 1999, with respect to the consolidated
financial statements of Gentia Software plc included in its Annual Report on
Form 20-F for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
ERNST & YOUNG
London, England
March 10, 2000
