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EXHIBIT 10.30
THE WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER,
HAVE BEEN AND WILL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933 AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES
HAVE BEEN ACQUIRED NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND SHALL NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED DISPOSITION IS
THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SEE SECTION 6.
VIEWLOCITY
For value received, Viewlocity, Inc.(the "Company"), a Delaware
corporation, hereby certifies that CommVest, LLC or the permitted assign(s) of
such entity (collectively, "Holder") is entitled to purchase from the Company,
shares of the capital common stock of the Company, fully-paid and nonassessable,
at any time or from time to time, but prior to 5:00 p.m. on November 12, 2004
("Expiration Date"), which shall be no later than sixty (60) months after the
execution of this Warrant. The price per share for each such share purchased
pursuant to an exercise of this Warrant ("Exercise Price") shall be calculated
as follows:
(A) The "Aggregate Purchase Price" of the "Common Shares" hereunder
is $150,000.
(B) The Holder may purchase Common Shares at an exercise price of
$1.00 per share, subject to adjustment as hereinafter provided.
(Hereinafter: the term "Common Shares" shall refer to all shares of the
capital common stock of the Company issued and outstanding at any time during
the term of this Warrant, together with any other equity securities that the
Company may issue in substitution for such shares other than Warrants; the term
"Warrants" shall refer to this Warrant and all warrants issued in exchange or
substitution for this Warrant; the term "Warrant Shares" shall refer to the
Common Shares purchasable under Warrants; the term "Aggregate Exercise Price"
shall refer to the aggregate purchase price payable under Warrants for the
Warrant Shares; and the term "Per Warrant Share Price" shall refer to the price
payable under this Warrant for each of the Warrant Shares.
1. EXERCISE OF WARRANT.
(A) EXERCISE OF WARRANT IN WHOLE. The Holder may exercise
this Warrant in full at any time by surrendering it (with the subscription
form at the end of this Warrant duly executed and indicating the whole number
of Warrant Shares with respect to which the Holder shall then be exercising
the Warrant) at the principal office of the
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Company at the time of exercise currently (400 Perimeter Center Terrace,
Atlanta, Georgia, 30346) together with a certified, registered or bank
cashier's check drawn upon Boston clearinghouse funds in the amount of the
Aggregate Exercise Price payable to the order of the Company (hereinafter,
the term "Payment" shall mean payment in this manner). Upon such exercise of
this Warrant in full, the Holder shall receive: (i) a certificate or
certificates in the name of the Holder for the largest number of whole
Warrant Shares to which the Holder shall then be entitled; (ii) cash equal in
value to any fractional share to which the Holder shall then be entitled
(with the amount of such cash to be calculated in such reasonable manner as
the board of directors of the Company shall determine); and (iii) the other
securities and properties, if any, receivable pursuant to the provisions of
this Warrant. No fractional shares shall be issued to the Holder in respect
of exercise of this Warrant.
(B) EXERCISE OF WARRANT IN PART. The Holder may exercise
this Warrant in part at any time and from time to time prior to 5:00 p.m. on
the Expiration Date, by surrendering it (with the subscription form at the
end of this Warrant duly executed and indicating the whole number of Warrant
Shares with respect to which the Holder shall then be exercising the Warrant)
at the principal office of the Company at the time of exercise, together with
Payment of that portion of the Aggregate Exercise Price that shall bear the
same ratio to the total Aggregate Exercise Price as the number of Warrant
Shares in respect of which this Warrant is then being exercised shall bear to
the total number of Warrant Shares subject to this Warrant. If this Warrant
shall be exercised in part, it must be exercised for a whole number of
Warrant Shares; and, upon such partial exercise, the Holder shall receive:
(i) a new Warrant for the number of Warrant Shares in respect of which this
Warrant has not been exercised ("Remaining Shares"), which new Warrant shall
set forth the Aggregate Exercise Price applicable to the Remaining Shares;
and (ii) the applicable proportion of the other securities and properties, if
any, receivable pursuant to the provisions of this Warrant.
2. CONVERSION RIGHT.
(A) In lieu of the payment of the Exercise Price, the Holder
shall have the right (but not the obligation), to require the Company to convert
this Warrant, in whole or in part, into shares of Common Shares (the "Conversion
Right") as provided for in this Section 2. Upon exercise of the Conversion
Right, the Company shall deliver to the Holder (without payment by the Holder of
any of the Exercise Price; PROVIDED, HOWEVER, that the Holder shall be required
to pay the par value for any shares of Common Shares so delivered) that number
of shares of Common Shares equal to the quotient obtained by dividing (x) the
value of the Warrant at the time the Conversion Right is exercised, by (y) the
Fair Market Value of one share of Common Shares immediately prior to the
exercise of the Conversion Right. For purposes of this Section, the "value" of
the Warrant shall be determined by subtracting the aggregate Exercise Price in
effect immediately prior to the exercise of the Conversion Right from the
aggregate Fair Market Value of the Warrant immediately prior to the exercise of
the Conversion Right.
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(B) The Conversion Right may be exercised by the Holder on
any Business Day prior to the Expiration Date by delivering the Warrant, with
a duly executed Exercise Form with the conversion section completed to the
Company, exercising the Conversion Right and specifying the total number of
shares of Common Shares the Holder will be issued pursuant to such conversion.
(C) Fair Market Value of a share of Common Shares as of a
particular date (the "Determination Date") shall mean:
(i) If the Common Shares are listed on a national securities
exchange, then the Fair Market Value shall be the average of the last ten "daily
sales prices" of the Common Shares on the national securities exchange on which
the Common Shares is listed or admitted for trading on the last ten Business
Days prior to the Determination Date, or if not listed or traded on any such
exchange, then the Fair Market Value shall be the average of the last ten "daily
sales prices" of the Common Shares on the National Market or Small Cap Market of
the National Association of Securities Dealers Automated Quotations System
("NASDAQ") on the last ten business days prior to the Determination Date. The
"daily sales price" shall be the closing price of the Common Shares at the end
of each day; or
(ii) If the Common Shares are not so listed or admitted to
unlisted trading privileges or if no such sale is made on at least nine of such
days, then the Fair Market Value shall be the higher of (x) the Book Value per
share, and (y) the fair value as reasonably determined in good faith by the
Company's Board of Directors or a duly appointed committee of the Board (which
determination shall be reasonably described in the written notice delivered to
the Holder together with the certificates for the Common Shares).
3. RESERVATION OF WARRANT SHARES. The Company agrees that the
Company shall, at all times during the term of this Warrant, have the Warrant
Shares and other securities and properties, if any, as from time to time
shall be receivable upon the exercise of this Warrant authorized, in reserve,
and available solely for issuance or delivery upon exercise of this Warrant,
free and clear of all restrictions upon sale or transfer, except (a) such as
may exist under the Company's Articles of Organization and By-Laws as
constituted on the date of this Warrant; or (b) such as may exist or arise
under agreements between the Holder, on the one hand, and the Company or
others, on the other hand, with respect to the securities of the Company; and
(c) such as may be imposed by applicable securities laws of any state, nation
or political subdivision.
4. PROTECTION AGAINST DILUTION. The rights of the Holder shall
be subject to the following terms and conditions:
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(A) ADJUSTMENTS TO EXERCISE PRICE FOR DILUTING ISSUES.
(i) SPECIAL DEFINITIONS. For purposes of this
Section 4, the following definitions shall apply:
(1) "OPTION" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common Shares
or Convertible Securities.
(2) "ORIGINAL ISSUE DATE" shall mean the date of
this original Warrant.
(3) "STOCK PURCHASE WARRANT" shall mean this
Warrant issued by the Company.
(4) "CONVERTIBLE SECURITIES" shall mean any
evidences of indebtedness, shares (other than Common Shares) or other
securities directly or indirectly convertible into or exchangeable for Common
Shares.
(5) "ADDITIONAL SHARES OF COMMON SHARES" shall
mean all shares of Common Shares issued (or, pursuant to Subsection 4(A)(iii),
deemed to be issued) by the Company after the Original Issue Date.
(ii) NO ADJUSTMENT TO EXERCISE PRICE. Except as set
forth in Subsection 4(B), no adjustment in the Exercise Price for which this
Warrant is exercisable shall be made unless the consideration per share for an
Additional Share of Common Shares issued or deemed to be issued by the Company
is less than the Exercise Price in effect on the date of, and immediately prior
to, the issue of such Additional Share of Common Shares. The following
transactions will be disregarded for purposes of this Section 4: (1) the
issuance of any shares of Common Shares on exercise of this Warrant, (2) the
issusance of up to $10,713,000 shares of Common shares under the Company's
current stock option plan (3) the conversion of any Convertible Securities
issued and outstanding on the date hereof.
(iii) ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL
SHARES OF COMMON SHARES.
(1) OPTIONS AND CONVERTIBLE SECURITIES. In the
event the Company at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record
date for the determination of holders of any class of securities entitled to
receive any such Options or Convertible Securities, then the maximum number
of shares (as set forth in the instrument relating thereto without regard to
any provisions contained therein for a subsequent adjustment of such number)
of Common Shares issuable upon the exercise of such Options or, in the case
of Convertible Securities and Options therefor, the conversion or exchange of
such Convertible Securities, shall be deemed to be Additional Shares of
Common
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Shares issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record date,
provided that Additional Shares of Common Shares shall not be deemed to have
been issued unless the consideration per share (determined pursuant to
Subsection 4(A)(v) hereof) of such Additional Shares of Common Shares would
be less than the Exercise Price in effect on the date of and immediately
prior to such issue, or such record date, as the case may be, and provided
further that in any such case in which Additional Shares of Common Shares are
deemed to be issued:
(a) no further adjustment in the Exercise
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Shares upon the exercise of such Options or conversion or
exchange of such Convertible Securities if any adjustment shall have been
previously made upon the issuance of such securities as herein provided;
(b) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for
any increase or decrease in the consideration payable to the Company, or
increase or decrease in the number of shares of Common Shares issuable, upon
the exercise, conversion or exchange thereof, the Exercise Price computed
upon the original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(c) upon the expiration of any such
Options or any rights of conversion or exchange under such Convertible
Securities which shall not have been exercised, the Exercise Price computed
upon the original issue thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments based thereon, shall, upon
such expiration, be recomputed as if:
(i) in the case of Convertible
Securities or Options for Common Shares the only Additional Shares of Common
Shares issued were the shares of Common Shares, if any, actually issued upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Company for the issue of all such Options, whether or
not exercised, plus the consideration actually received by the Company upon such
exercise, or for the issue of all such Convertible Securities which were
actually converted or exchanged, plus the additional consideration, if any,
actually received by the Company upon such conversion or exchange; and
(ii) in the case of Options for
Convertible Securities only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options, and
the consideration received by the Company for the Additional Shares of Common
Shares deemed to have been then
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issued was the consideration actually received by the Company for the issue
of all such Options, whether or not exercised, plus the consideration deemed
to have been received by the Company (determined pursuant to Subsection
4(A)(v)) upon the issue of the Convertible Securities with respect to which
such Options were actually exercised;
(d) no readjustment pursuant to clause
(b) or (c) above shall have the effect of increasing the Exercise Price to an
amount which exceeds the lower of (i) the Exercise Price on the original
adjustment date, or (ii) the Exercise Price that would have resulted from any
issuance of Additional Shares of Common Shares between the original
adjustment date and such readjustment date;
(e) in the case of any Options which expire
by their terms not more than 30 days after the date of issue thereof, no
adjustment of the Exercise Price shall be made until the expiration or exercise
of all such Options, whereupon such adjustment shall be made in the same manner
provided in clause (c) above; and
(f) if such record date shall have been
fixed and such Options or Convertible Securities are not issued on the date
fixed therefor, the adjustment previously made in the Exercise Price which
became effective on such record date shall be canceled as of the close of
business on such record date, and thereafter the Exercise Price shall be
adjusted pursuant to this Subsection 4(A)(iii) as of the actual date of their
issuance.
(iv) ADJUSTMENT TO EXERCISE PRICE UPON ISSUANCE OF
ADDITIONAL SHARES OF COMMON SHARES.
(1) ADJUSTMENT FORMULA. The Exercise Price
shall be subject to adjustment from time to time as set forth below. Upon
each adjustment of the Exercise Price pursuant to this Section, the Holder shall
(until another such adjustment) thereafter be entitled to purchase at the
Exercise Price the number of shares obtained by dividing (a) the product of the
number of Shares multiplied by the initial Exercise Price by (b) the adjusted
Exercise Price.
(2) ADJUSTMENT OF THE EXERCISE PRICE. In the
event that at any time or from time to time after the Original Issue Date
the Company shall issue Additional Shares of Common Shares (including, without
limitation, Additional Shares of Common Shares deemed to be issued pursuant to
Subsection 4(A)(iii), but excluding shares issued upon a stock subdivision or
combination as provided in Subsection 4(B)), without consideration or for a
consideration per share less than the applicable Exercise Price in effect on the
date of and immediately prior to such issue, then and in such event, such
Exercise Price shall be reduced concurrently with such issue, to a price
(calculated to the nearest cent) determined in accordance with the following
formula:
P1 Q1 + P2 Q2
Exercise Price = -------------
Q1 + Q2
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where:
Exercise Price = New Exercise Price
P1 = Exercise Price in effect immediately prior to new issue.
Q1 = Number of shares of Common Shares outstanding immediately
prior to such issue (assuming conversion of all then
outstanding Convertible Securities of the Company).
P2 = Average price per share received by the Company upon such
issue.
Q2 = Number of shares of Common Shares issued, or deemed to
have been issued, in the subject transaction.
PROVIDED THAT the applicable Exercise Price shall not be so reduced at any time
if the amount of such reduction would be an amount less than $.01, but any such
amount shall be carried forward and reduction with respect thereto made at the
time of and together with any subsequent reduction which, together with such
amount and any other amount or amounts so carried forward, shall aggregate $.01
or more.
(v) DETERMINATION OF CONSIDERATION. For purposes of
this Subsection 4(A), the consideration received by the Company for the issue
of any Additional Shares of Common Shares shall be computed as follows:
(1) CASH AND PROPERTY: Such consideration shall:
(a) insofar as it consists of cash, be computed
at the aggregate amounts of cash received by the Company;
(b) insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such issue,
as determined in good faith by the Board of Directors; and
(c) in the event Additional Shares of Common
Shares are issued together with other shares or securities or other assets
of the Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B) above, as
determined in good faith by the Board of Directors.
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(2) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Shares deemed to have been issued pursuant to Subsection 4(A)(iii)(1), relating
to Options and Convertible Securities, shall be determined by dividing (x) the
total amount, if any, received or receivable by the Company as consideration for
the issue of such Options or Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent
adjustment of such consideration) payable to the Company upon the exercise of
such Options or the conversion or exchange of such Convertible Securities, or in
the case of Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion or exchange of such Convertible
Securities, by (y) the maximum number of shares of Common Shares (as set forth
in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise
of such Options or the conversion or exchange of such Convertible Securities.
(B) ADJUSTMENT TO EXERCISE PRICE FOR SUBDIVISION OR
COMBINATION. If the Company at any time or from time to time after the issuance
of this Warrant subdivides (by any stock split, stock dividend, recapitalization
or otherwise) the outstanding shares of the class of securities issuable upon
exercise hereof into a greater number of shares, the Exercise Price in effect
immediately before that subdivision shall be proportionately decreased. If the
Company at any time or from time to time after the issuance of this Warrant
combines (by reverse stock split or otherwise) the outstanding shares of the
class of securities issuable upon exercise hereof, the Exercise Price in effect
immediately before the combination shall be proportionately increased. Any
adjustment under this paragraph shall become effective at the close of business
on the date the subdivision or combination becomes effective.
(C) ADJUSTMENT IN THE NUMBER OF SHARES FOR DILUTING ISSUES,
SUBDIVISIONS OR COMBINATIONS. Whenever the Exercise Price is adjusted pursuant
to Subsection 4(A)(iv) or 4(B), the number of shares of the class of securities
issuable upon exercise hereof also shall be adjusted pursuant to the formula set
forth in Subsection 4(A)(iv)(1).
(D) ADJUSTMENTS FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. In
the event that at any time or from time to time after the Original Issue Date
the Company shall make or issue, or fix a record date for the determination of
holders of the class of securities issuable upon exercise hereof who are
entitled to receive a dividend or other distribution payable in securities of
the Company, then and in each such event, unless such dividend or distribution
results in an adjustment of the Exercise Price pursuant to Subsections 4(A) or
4(B), provision shall be made so that the Holder of this Warrant shall receive
upon exercise hereof in addition to the securities receivable hereupon, the
amount of securities of the Company that he would have received had this Warrant
been exercised on the date of such event and had he thereafter, during the
period from the date of such event to and including the exercise date, retained
such securities receivable by him as
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aforesaid during such period, giving application during such period to all
adjustments called for herein.
(E) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE OR SUBSTITUTION.
In the event that at any time or from time to time after the Original Issue
Date, the class of securities issuable upon the exercise of this Warrant shall
be changed into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for above, or a merger, consolidation, or sale of assets provided for below),
then and in each such event the Holder of this warrant shall have the right
thereafter to exercise this Warrant for the kind and amount of shares of stock
and other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of the
class of securities into which such warrant might have been exercisable for
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(F) ADJUSTMENT FOR MERGER CONSOLIDATION OR SALE OF ASSETS.
In the event that at any time or from time to time after the Original Issue
Date, the Company shall merge or consolidate with or into another entity or
sell all or substantially all of its assets, this Warrant shall thereafter be
exercisable for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of the class of securities
of the Company deliverable upon exercise of this Warrant would have been
entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board of
Directors) shall be made in the application of the provisions set forth in
this Section 4 with respect to the rights and interest thereafter of the
Holder of this Warrant, to the end that the provisions set forth in this
Section 4 (including provisions with respect to changes in and other
adjustments of the Exercise Price) shall thereafter be applicable, as nearly
as reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the exercise of this Warrant.
(G) NO IMPAIRMENT. The Company shall not, by amendment of
its Articles of Organization, as in effect on the date hereof, or By-Laws or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company but shall at all times in good
faith assist in the carrying out of all the provisions of this Section 4 and
in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Warrant against impairment.
(H) NOTICE OF ADJUSTMENT OF NUMBER OF SHARES. Upon any
adjustment, readjustment or other change relating to the number of shares
purchasable upon exercise of this Warrant or to the Exercise Price, then, and
in each such case, the Company shall give written notice thereof, by first
class mail, postage prepaid, addressed to the Holder at the address of such
Holder as shown on the books of the Company,
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which notice shall state the Exercise Price resulting from such adjustment
and the increase or decrease in the number of shares (or other denominations
of securities) purchasable at the Exercise Price upon the exercise of this
Warrant setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(I) NOTICE. In case at any time: (1) the Company shall
pay any dividend or make any distribution (other than regular cash dividends
from earnings or earned surplus paid at an established rate) to the holders
of the class of securities issuable upon exercise of this Warrant; (2) the
Company shall offer for subscription pro rata to the holders of the class of
securities issuable upon exercise of this Warrant any additional shares of
stock of any class or other rights; (3) there shall be any capital
reorganization or reclassification of the capital stock of the Company, or
consolidation or merger of the Company with or sale of all or substantially
all of its assets to another corporation; or (4) there shall be a voluntary
or involuntary dissolution, liquidation or winding up of the Company; then,
in any one or more of such cases, the Company shall give written notice, by
first class mail, postage prepaid, addressed to the Holder at the address of
such Holder as shown on the books of the Company of the date on which (a) the
books of the Company shall close or a record date shall be fixed for
determining the shareholders entitled to such dividend, distribution or
subscription rights, or (b) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up shall
take place, as the case may be. Such notice shall also provide reasonable
details of the proposed transaction and specify the date as of which the
holders of record of the class of securities issuable upon exercise of this
Warrant shall participate in such dividend, distribution or subscription
rights, or shall be entitled to exchange their securities for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the
case may be. Such written notice shall be given at least 10 days prior to the
action in question and not less than 10 days prior to the record date or the
date on which the Company's transfer books are closed in respect thereto.
(J) VOTING RIGHTS. This Warrant shall not entitle the
Holder to any voting rights or any other rights as a stockholder of the
Company but upon presentation of this Warrant with the subscription form
annexed duly executed and the tender of Payment of the Exercise Price at the
office of the Company pursuant to the provisions of this Warrant the Holder
shall forthwith be deemed a stockholder of the Company in respect of the
securities so subscribed and paid for.
(K) NO CHANGE NECESSARY. The form of this Warrant need
not be changed because of any adjustment in the Exercise Price or in the
number of shares issuable upon its exercise. A Warrant issued after any
adjustment on any partial exercise or upon replacement may continue to
express the same Exercise Price and the same number of shares (appropriately
reduced in the case of partial exercise) as are stated on this Warrant as
initially issued, and that Exercise Price and that number of shares shall be
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considered to have been so changed as of the close of business on the date of
adjustment.
5. FULLY-PAID SHARES; TAXES. The Company covenants that the
Common Shares represented by each and every certificate for Warrant Shares
delivered upon exercise of this Warrant shall, at the time of such delivery,
be duly authorized, validly-issued and outstanding, and fully-paid and
nonassessable, and that the Company shall take any and all such actions as
may be necessary to ensure that the par value or stated value, if any, of
each Warrant Share is at all times equal to or less than the then Per Share
Warrant Price; and that it will pay when due and payable any and all stamp,
original issue or similar taxes that may be payable in respect of issuance of
any Warrant Shares or certificates for Warrant Shares.
6. SECURITIES RESTRICTIONS UPON TRANSFER. Each holder of this
Warrant acknowledges that this Warrant and the Warrant Shares have not been
registered under the Securities Act of 1933, as now in force or hereafter
amended, or any successor legislation (the "ACT"), and agrees not to sell,
pledge, distribute, offer for sale, transfer or otherwise dispose of this
Warrant or any Warrant Shares issued upon its exercise in the absence of (a)
an effective registration statement under the Act as to this Warrant or such
Warrant Shares and registration or qualification of this Warrant or such
Warrant Shares under any applicable Blue Sky or state securities law then in
effect, or (b) an opinion of counsel, satisfactory to the Company, that such
registration and qualification are not required.
Without limiting the generality of the foregoing, unless the offering
and sale of the Warrant Shares to be issued upon the particular exercise of the
Warrant shall have been effectively registered under the Act, the Company shall
be under no obligation to issue the shares covered by such exercise unless and
until the Holder shall have executed an investment letter in form and substance
satisfactory to the Company, including a warranty at the time of such exercise
that it is acquiring such shares for its own account, for investment and not
with a view to, or for sale in connection with, the distribution of any such
shares, in which event the Holder shall be bound by the provisions of the
following legend or a legend in substantially similar form which shall be
endorsed upon the certificate(s) evidencing the exercised Warrant pursuant to
such exercise:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws, have been acquired for
investment, and may not be sold, pledged, hypothecated or
otherwise transferred unless a registration statement under
the Act and applicable state law is in effect with regard
thereto or unless an exemption from such registration is
available.
In addition, without limiting the generality of the foregoing, the
Company may delay issuance of the Warrant Shares until completion of any action
or obtaining of any
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consent, which the Company deems necessary under any applicable law
(including without limitation state securities or "blue sky" laws).
7. STOCKHOLDER AGREEMENT. Each Holder of this Warrant agrees
that upon the exercise in whole or in part of this Warrant, that Holder shall
execute and become a party to a stockholder agreement. Further, Holder agrees
that the Company shall be under no obligation to issue the shares covered by
such exercise unless and until the Holder shall have executed a stockholder
agreement in form and substance satisfactory to the Company, containing
provisions restricting the transfer of the shares received by exercising this
warrant, including placing a transfer restriction legend on the shares
evidencing the exercise of this Warrant.
8. NO DISTRIBUTION. The Holder of this Warrant, by acceptance
hereof, represents and warrants that this Warrant has been acquired without a
view to, or for sale in connection with, a distribution thereof and not with
a view to its resale, and that this Warrant has been acquired for the
Holder's own account and not with a view to its division among others, and
that no other person has any direct or indirect beneficial interest in this
Warrant. Notwithstanding the foregoing, the Company agrees that the Holder
shall have the right to grant participation interests in the Warrant.
9. REGISTRATION RIGHTS. The Holder shall be entitled, with
respect to (i) its Warrant Shares and other securities issued or issuable
upon exercise of this Warrant and (ii) any securities issued or issuable with
respect to any Common Shares or other securities referred to in subdivision
(i) by way of a stock dividend or stock split or in connection with a
combination or other reorganization or otherwise, the piggy back registration
rights as set forth in that certain Registration Rights Agreement dated March
12, 1999 (the "Registration Rights Agreement"), by and among Company and the
Purchasers (as defined therein). Holder shall not be entitled to other
registration rights included in the Registration Rights Agreement. Except as
may be otherwise provided in the Registration Rights Agreement governing such
rights, the right to have the Company register such securities pursuant to
such agreement shall be automatically assigned to transferees or assignees of
this Warrant or such securities, provided that immediately following such
transfer or assignment, the further disposition of such securities by the
transferee or assignee would be subject to restrictions under the Act.
10. BOOKS OF THE COMPANY. The Company may treat the Holder of
this Warrant as appearing on the Company's books at any time as the Holder
for all purposes. Upon written request, the Company shall permit any Holder
or the duly authorized attorney of such Holder, during ordinary business
hours, to inspect and copy or make extracts from the books showing the
Holders of Warrants.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. If this
Warrant shall be lost, stolen, destroyed, or mutilated, the Company shall
execute and deliver to the Holder a replacement warrant of like date, tenor,
and denomination upon receipt by the Company of (a) evidence satisfactory to
the Company of the occurrence of such event, (b)
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<PAGE>
reimbursement of the Company's reasonably incidental expenses, and (c) (i) in
the event of mutilation, upon surrender and cancellation of this Warrant, or
(ii) in the event of loss, theft, or destruction of this Warrant, of
indemnity reasonably satisfactory to the Company.
12. WARRANT HOLDER NOT SHAREHOLDER. Except as may otherwise be
expressly provided in this Warrant, this Warrant does not, prior to its
exercise, confer upon the Holder any right to vote, or to consent, or to
receive notice, or otherwise to act, as a shareholder of the Company in
respect of any matters whatsoever, or confer or impose upon the Holder any
other rights or liabilities of a shareholder of the Company.
13. NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Warrant shall be effective and shall be deemed to
have been given if, and only if, the same shall have been given in writing
and mailed by first-class mail, postage prepaid, addressed to:
(A) the Company at the address set forth in Section 1(A)
above, or such other address as the Company may designate in writing to the
Holder, or
(B) the Holder at 20 William Street, Wellesley, MA 02481,
or such other address as the Holder may designate in writing to the Company.
14. HEADINGS. The headings contained in this Warrant have been
inserted as a matter of convenience, do not form part, and shall not affect
construction of, this Warrant.
15. APPLICABLE LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Georgia applicable to
contracts wholly made, accepted and performed within that jurisdiction,
without application of principles of conflict of laws.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
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<PAGE>
STAN F. STOUDENMIRE has caused this Warrant to be executed by its
President and attested by its Secretary or Assistant Secretary this 12th day
of November, 1999.
ATTEST: Viewlocity, Inc.
/s/ STAN F. STOUDENMIRE By: /s/ GREGORY CRONIN
------------------------------------ --------------------------------
Secretary or Assistant Secretary President
[Corporate Seal]
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<PAGE>
SUBSCRIPTION
Date: ____________________
To: Viewlocity, Inc.
400 Perimeter Center Terrace
Suite 320
Atlanta, GA 30346
The undersigned, pursuant to the provisions set forth in the attached
Warrant hereby irrevocably elects to purchase _____ shares of the Common Shares
(the "COMMON SHARES") covered by such Warrant and herewith makes payment of
$_________, representing the full purchase price for such shares at the price
per share provided for in such Warrant.
The undersigned is aware that the Common Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 ACT") or any
state securities laws. The undersigned understands that the reliance by the
Company on exemptions under the 1933 Act is predicated in part upon the truth
and accuracy of the statements of the undersigned in this Subscription.
The undersigned represents and warrants that (1) it has been furnished
with all information which it deems necessary to evaluate the merits and risks
of the purchase of the Common Shares; (2) it has had the opportunity to ask
questions concerning the Common Shares and the Company and all questions posed
have been answered to its satisfaction; (3) it has been given the opportunity to
obtain any additional information it deems necessary to verify the accuracy of
any information obtained concerning the Common Shares and the Company; (4) it is
an "Accredited Investor" as that term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act, and (5) it has such knowledge and
experience in financial and business matters that it is able to evaluate the
merits and risks of purchasing the Common Shares and to make an informed
investment decision relating thereto.
The undersigned hereby represents and warrants that it is purchasing
the Common Shares for its own account and not with a view to the sale or
distribution of all or any part of the Common Shares.
The undersigned understands that because the Common Shares have not
been registered under the 1933 Act, it must continue to bear the economic risk
of the investment for an indefinite time and the Common Shares cannot be sold
unless the Common Shares are subsequently registered under applicable federal
and state securities laws or an exemption from such registration is available.
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<PAGE>
The undersigned agrees that it will in no event sell or distribute or
otherwise dispose of all or any part of the Common Shares unless (1) there is an
effective registration statement under the 1933 Act and applicable state
securities laws covering any such transaction involving the Common Shares or (2)
the Company receives an opinion of legal counsel to the undersigned (concurred
in by legal counsel for the Company) stating that such transaction is exempt
from registration or the Company otherwise satisfies itself that such
transaction is exempt from registration.
The undersigned consents to the placing of a legend on its certificate
for the Common Shares stating that the Common Shares have not been registered
and setting forth the restriction on transfer contemplated hereby and to the
placing of a stop transfer order on the books of the Company and with any
transfer agents against the Common Shares until the Common Shares may be legally
resold or distributed without restriction.
The undersigned has considered the Federal and state income tax
implications of the exercise of the Warrant and the purchase and subsequent sale
of the Common Shares.
---------------------------------
Signature
---------------------------------
Print name:
---------------------------------
Date:
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