NAME OF WARRANTHOLDER:___________________________
MANGOSOFT, INC.
WARRANT AGREEMENT
This Warrant Agreement (this "Agreement"), dated as of June 8, 2000, is
made by and between MangoSoft, Inc., a corporation organized under the laws of
the State of Nevada (the "Company"), and the undersigned (the "Warrantholder").
Subject to the terms and conditions hereof, the Company agrees to issue to
the Warrantholder warrants as hereinafter described (the "Warrants") to
purchase up to the aggregate number of shares of common stock of the Company,
par value $0.00l per share (the "Common Stock"), specified on the signature
page hereto, at the Warrant Price (as defined below) specified on the signature
page hereto, subject to adjustment as provided herein.
As used herein: (i) the terms "Share" or "Shares" shall mean collectively
the Common Stock issuable upon exercise of the Warrants together with any other
securities issuable upon such exercise as provided herein; (ii) the term
"Warrants" shall include any and all warrants outstanding pursuant to this
Agreement, including those evidenced by a certificate or certificates issued
upon division, exchange or substitution pursuant to this Agreement; and (iii)
the term "Warrant Price" shall mean the price per share of Common Stock at
which the Common Stock shall at any time be purchasable upon exercise of the
Warrants. The issuance of the Warrants shall occur as soon as practicable
following the execution of this Agreement.
For the purpose of defining the terms and provisions of the Warrants and
the respective rights and obligations thereunder, the Company and the
Warrantholder, for value received, the adequacy and sufficiency of which are
hereby acknowledged, agree as follows:
Section 1. Transferability and Form of Warrants.
1.1. Registration. The Warrants shall be numbered and shall be registered
on the books of the Company when issued in accordance with Nevada corporate
practice.
1.2. Transfer. The Warrants shall be transferable only on the books of the
Company maintained at its principal office in Westborough, Massachusetts or
wherever its principal office may then be located, upon delivery thereof duly
endorsed by the Warrantholder seeking such transfer or by its duly authorized
attorney or representative, accompanied by proper evidence of succession,
assignment or authority to transfer. Upon any registration of transfer, the
Company shall execute and deliver new Warrants to the person entitled thereto.
1.3. Form of Warrants. The form of certificate evidencing the Warrants
shall be substantially as attached hereto. Certificates evidencing the Warrants
shall be executed on behalf of
the Company by its President or any Vice President, and shall be dated as of
the date of execution thereof.
1.4. Legend on Warrants and Shares. The Warrants, and the Shares issuable
upon the exercise thereof, have not been registered under the Securities Act of
1933, as amended (the "Securities Act"). Each certificate for the Warrants
shall bear the following legend:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE, AND THE COMMON STOCK
ISSUABLE UPON EXERCISE OF SUCH WARRANTS, HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. SUCH WARRANTS MAY NOT BE SOLD,
ASSIGNED, EXCHANGED OR OTHERWISE TRANSFERRED IN ANY MANNER AND SUCH
COMMON STOCK MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
And each certificate for the Shares shall bear substantially the following
legend:
"THE COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE
OFFERED FOR SALE, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act of the securities represented thereby) shall also bear a
like legend unless, in the opinion of the Company's counsel, the securities
represented thereby need no longer be subject to such restrictions.
Section 2. Exchange of Warrant Certificate. Any Warrant certificate may be
exchanged for another certificate or certificates entitling a Warrantholder to
purchase a like aggregate number of Shares as the certificate or certificates
surrendered then entitles such Warrantholder to purchase. Any Warrantholder
desiring to exchange a Warrant certificate shall make such request in writing
delivered to the Company, and shall surrender, properly endorsed, the
certificate evidencing the Warrant to be so exchanged. Thereupon, the Company
shall execute and deliver to the person entitled thereto a new Warrant
certificate as so requested.
2
Section 3. Term and Exercise of Warrants.
(a) Subject to the terms of this Agreement, each Warrantholder shall have
the right, at any time prior to the termination date specified on the signature
page hereto (the "Termination Date"), to purchase from the Company up to the
number of fully paid and nonassessable Shares which such Warrantholder may at
the time be entitled to purchase pursuant to this Agreement, upon surrender to
the Company at its principal office of the certificates evidencing the Warrants
to be exercised, with the attached purchase form duly completed and signed, and
upon payment to the Company of the Warrant Price (as determined in accordance
with the provisions hereof) for the number of Shares in respect of which such
Warrants are then exercised, but in no event for fewer than 100 Shares (unless
fewer than an aggregate of 100 Shares are then purchasable under all
outstanding Warrants held of record by a Warrantholder). Payment of the
aggregate Warrant Price shall be made in cash or by certified or cashier's
check or any combination thereof.
(b) At any time prior to the Termination Date, in lieu of exercising the
Warrants as provided in Section 3(a) above, and subject to all applicable law
and all applicable regulatory approvals, limitations and restrictions, the
Warrantholder may elect to receive, without any cash payment, a number of
Shares equal to the value as determined below of any or all of the Warrants
held of record by the Warrantholder, upon surrender to the Company at its
principal office of the certificates evidencing such Warrants, with the
attached cashless exercise form duly completed and signed, in which event the
Company shall issue to the Warrantholder a number of Shares computed using the
following formula:
(X = {Y(A-B)} OVER A}
where
X = the number of shares of Common Stock to be issued pursuant to
this Section 3(b).
Y = the number of shares of Common Stock issuable upon exercise of
the surrendered Warrants.
A = the average of the Market Price of the Common Stock for the 10
consecutive trading days immediately preceding the date upon
which the certificates evidencing the surrendered Warrants are
received by the Company at its principal office.
B = the Warrant Price on such date.
(c) For purposes of this Agreement, the term "Market Price" as of any
specified date shall mean: (i) if the Common Stock is listed or admitted for
trading on one or more United States national securities exchanges, the daily
closing price for the Common Stock on that of such exchanges as may be
designated by the Board of Directors of the Company (the "Board") as the
3
principal exchange on which the Common Stock is listed; (ii) if the Common
Stock is not listed or admitted for trading on any United States national
securities exchange, the daily closing bid price for the Common Stock on the
Nasdaq National or SmallCap Market ("Nasdaq"); or (iii) if the Common Stock is
not listed or admitted for trading on a United States national securities
exchange or on Nasdaq, the closing bid price of the Common Stock on the Nasdaq
OTC Bulletin Board. In the event that it is impracticable for the Board to
establish the Market Price of the Common Stock pursuant to this Section 3 on
any specified date, the "Market Price" shall be determined in good faith by the
Board, such determination to be conclusive.
(d) Upon surrender of Warrant certificates and payment of the Warrant
Price, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Warrantholder, and in such name or
names as such Warrantholder may designate, a certificate or certificates for
the number of full Shares so acquired upon the exercise of the Warrant,
together with cash, as provided herein, in respect of any fractional Shares
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Shares as of the date
of surrender of the Warrants being exercised and payment of the Warrant Price,
notwithstanding that the certificate or certificates representing such
securities shall not actually have been delivered or that the stock transfer
books of the Company shall then be closed. The Warrants shall be exercisable at
the election of a Warrantholder either in full or from time to time in part
and, in the event that a certificate evidencing Warrants is exercised in
respect of fewer than all of the Shares specified therein at any time prior to
the Termination Date, a new certificate evidencing the remaining portion of the
Warrants shall be issued by the Company.
Section 4. Payment of Taxes. The Company will pay all taxes and fees, if
any, attributable to the initial issuance of the Warrants or the issuance of
the Shares upon exercise of the Warrants, except that the Company shall not be
required to pay any tax or fee which may be payable in respect of any secondary
transfer of the Warrants or such Shares.
Section 5. Mutilated or Missing Warrants. In case the certificate or
certificates evidencing any Warrants shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the affected Warrantholder,
issue and deliver in exchange and substitution for and upon cancellation of the
mutilated certificate or certificates, or in lieu of and substitution for the
certificate or certificates lost, stolen or destroyed, a new Warrant
certificate or certificates of like tenor and representing an equivalent right
or interest, but only upon receipt of evidence satisfactory to the Company of
the loss, theft or destruction of such Warrant and, if requested, at the cost
and expense of the Warrantholder, a bond of indemnity in form and amount
satisfactory to the Company. Applicants for such substitute Warrant
certificates shall also comply with such other reasonable requirements as the
Company may prescribe.
Section 6. Reservation of Shares. There has been reserved, and the Company
shall at all times keep reserved so long as any Warrants remain outstanding,
out of its authorized capital stock, such number of shares of Common Stock as
shall be subject to purchase under all outstanding Warrants.
4
Section 7. Adjustment of Number and Kind of Securities. The Warrant Price
and the number and kind of securities purchasable upon the exercise of the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
7.1. Adjustments. In case the Company shall (i) pay a dividend in Common
Stock or make a distribution in Common Stock, (ii) subdivide its outstanding
Common Stock, (iii) combine its outstanding Common Stock into a smaller number
of shares of Common Stock, or (iv) issue, by reclassification of its Common
Stock, other securities of the Company, then the number of shares of Common
Stock or other securities purchasable upon exercise of the Warrants immediately
prior thereto shall be adjusted so that each Warrantholder shall be entitled to
receive the kind and number of shares of Common Stock or other securities of
the Company which it would have owned or would have been entitled to receive
immediately after the happening of any of the events described above, had the
Warrants been exercised immediately prior to the happening of such event or any
Record Date (as defined below) with respect thereto. In respect of the
foregoing, the Warrant Price shall forthwith be proportionately decreased in
the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination. For purposes hereof, "Record Date" shall mean the
date of closing the transfer books of the Company for the determination of the
shareholders entitled to any relevant dividend, distribution, subscription
rights or other rights or for the determination of shareholders entitled to
vote on any proposed merger, dissolution, liquidation or winding up of the
Company. Any adjustment made pursuant to this subsection 7.1 shall become
effective immediately on the effective date of such event retroactive to the
Record Date, if any, for such event.
7.2. No Adjustment for Dividends. Except as provided in subsection 7.1, no
adjustment to the Warrants or any provision or condition thereof in respect of
any dividends or distributions out of earnings of the Company shall be made
during the term of the Warrants or upon the exercise of Warrants.
7.3. No Adjustment in Certain Cases. No adjustment shall be made pursuant
to this Section 7 in connection with the grant or exercise of options to
purchase Common Stock under any of the Company's employee benefit plans.
7.4. Preservation of Purchase Rights upon Merger, Consolidation, etc. In
case of any consolidation of the Company with or merger of the Company into
another entity or in case of any sale or conveyance to another entity of the
property, assets or business of the Company as an entirety or substantially as
an entirety, the Company or such successor or purchasing entity, as the case
may be, shall execute with the Warrantholder an agreement that the
Warrantholder shall have the right thereafter, upon exercise of the Warrants
and payment of the Warrant Price in effect immediately prior to such
consolidation, merger or sale, to purchase the kind and amount of shares and
other securities and property which it would have been entitled to receive
after the happening of such consolidation, merger, sale or conveyance had the
Warrants been exercised immediately prior thereto. In the event of a merger
described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986 (or any
successor provision), in which the Company is the surviving corporation, the
right to purchase Shares under the Warrants shall terminate on the date of such
merger and thereupon the Warrants shall become null and void, but only if the
controlling corporation (after such event) shall
5
agree to substitute for the Warrants its warrants entitling the holder thereof
to purchase the kind and amount of shares and other securities and property
which it would have been entitled to receive had the Warrants been exercised
immediately prior to such merger. Any such agreements referred to in this
subsection 7.4 shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section 7
hereof, and shall contain substantially the same terms, conditions and
provisions as are contained herein immediately prior to such event. The
provisions of this subsection 7.4 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
7.5. Nominal Value of Common Stock. Before taking any action which would
cause an adjustment effectively reducing the portion of the Warrant Price
allocable to each share of Common Stock below the then nominal value per share
of Common Stock issuable upon exercise of the Warrants, the Company will take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully-paid and
nonassessable Shares upon exercise of the Warrants.
7.6. Independent Public Accountants. The Company may retain a firm of
independent public accountants (which may be any such firm regularly employed
by the Company) to make any computation required hereunder, and a certificate
signed by such firm shall be evidence of the correctness of any computation
made hereunder.
7.7. Statement on Warrant Certificates. Irrespective of any adjustments in
the number of securities issuable upon exercise of the Warrants, Warrant
certificates theretofore or thereafter issued may continue to express the same
number of securities as are stated in the similar Warrant certificates
initially issuable pursuant to this Agreement. However, the Company may, at any
time in its reasonable discretion, make any change in the form of the Warrant
certificate that it may deem appropriate and that does not affect the substance
thereof, and any Warrant certificate hereafter issued, whether upon
registration of transfer of, or in exchange or substitution for, an outstanding
Warrant certificate, may be in the form so changed.
Section 8. Fractional Interests. The Company shall not be required to
issue fractional Shares upon the exercise of any Warrant. If any fraction of a
Share would, except for the provisions of this Section 8, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay
an amount in cash equal to the Market Price (of the Common Stock for the 5
consecutive trading days immediately preceding the date the certificates
evidencing the Warrants to be exercised are received by the Company at its
principal office) multiplied by such fraction.
Section 9. No Rights as Shareholder; Notices to Warrantholder. Nothing
contained in this Agreement or in the Warrants shall be construed as conferring
upon the Warrantholder or any transferee of any rights as a shareholder of the
Company, including, without limitation, the right to vote, receive dividends,
consent or receive notices as a shareholder in respect of any meeting of
shareholders for the election of directors of the Company. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise in
full, any one or more of the following events shall occur: (a) any action which
would require an adjustment pursuant to Section 7.1 or 7.4; or (b) a
dissolution, liquidation or winding up of the Company (other than in connection
with a
6
consolidation, merger or sale of its property, assets and business as an
entirety or substantially as an entirety) shall be proposed, then the Company
shall give notice in writing of such event to the Warrantholder, as provided
herein, at least 10 calendar days prior to the date fixed as the Record Date.
Such notice shall specify such Record Date. Failure to mail or receive such
notice or any defect therein shall not affect the validity of any action taken
with respect thereto.
Section 10. Restrictions on Transfer. The Warrantholder agrees and
undertakes that if the Warrantholder proposes to sell or otherwise transfer any
Warrants or Shares issuable upon exercise thereof, and if such Shares are not
then registered for resale pursuant to an effective registration statement
under the Securities Act, the Warrantholder proposing to make such transfer
shall give written notice to the Company describing briefly the manner in which
any such proposed transfer is to be made and no such transfer shall be made
unless the Company shall have received an opinion of counsel for the
Warrantholder reasonably acceptable to the Company, that registration under the
Securities Act is not required with respect to such transfer.
Section 11. Registration Rights.
11.1. Registration. If the Company at any time proposes to register any of
its Common Stock under the Securities Act for sale to the public, whether for
its own account or for the account of other securityholders or both (except
with respect to registration statements on Forms ▇-▇, ▇-▇ or another form not
available for registering the Shares for sale to the public), the Company will
use commercially reasonable efforts to cause the Shares issuable in respect of
the Warrants then outstanding to be included in the securities to be covered by
the registration statement proposed to be filed by the Company (the
"Registration Statement"), all to the extent requisite to permit the sale or
other disposition by the holder of such Shares so registered. In the event that
any registration pursuant to this Agreement shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Shares to be
included in such an underwriting may be reduced (pro rata among the holders of
Common Stock that shall have the right to have Common Stock included in such
Registration Statement) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the
marketing of the securities to be sold by the Company or the selling
securityholders therein. The Company shall not be required to include the
Shares of any holder unless the holder accepts in advance such terms of the
underwriting as may be agreed upon by the Company and the managing underwriter,
including, without limitation, any "lock-up" and indemnification provisions.
The holder shall comply with such other requirements as may be imposed by the
managing underwriter to effect an orderly distribution of the Shares.
Notwithstanding the foregoing provisions, the Company may withdraw any
Registration Statement without thereby incurring any liability to the holders
of Shares.
11.2. Indemnification and Contribution.
(a) For purposes hereof: (i) the term "Selling Shareholder" shall mean any
person or entity selling Common Stock pursuant to the Registration Statement,
and any affiliate thereof; (ii) the term "Registration Statement shall include
any preliminary prospectus, final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement; and (iii) the term
"untrue statement" shall mean any untrue statement or alleged untrue statement
of a material fact in
7
the Registration Statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statement therein, in the light of the circumstances
under which they were made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Selling
Shareholder from and against any losses, claims, damages or liabilities to
which such Selling Shareholder may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any untrue
statement, or arise out of any failure by the Company to fulfill any
undertaking included herein or in the Registration Statement, and the Company
promptly will reimburse such Selling Shareholder for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Selling Shareholder specifically for use in preparation of
the Registration Statement, or the failure of such Selling Shareholder to
comply with the covenants and agreements contained herein; provided further,
that the indemnification contained herein with respect to any prospectus after
it has been amended or supplemented, shall not inure to the benefit of any
Selling Shareholder (or any person controlling such Selling Shareholder) from
whom the person asserting such loss, claim, damage, or liability shall have
purchased Common Stock, that are the subject thereof if, after copies thereof
have been delivered by the Company to such Selling Shareholder, such Selling
Shareholder shall have failed to send or give a copy of the prospectus as then
amended or supplemented, as the case may be, to such person at or prior to the
confirmation of such sale of such Common Stock, to such person and, if such
loss, claim, damage or liability would not have arisen but for the failure of
such Selling Shareholder to deliver the same.
(c) The Warrrantholder agrees to indemnify and hold harmless the Company
(and each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against any
losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure of the Warrantholder to comply with its covenants and
agreements contained herein, or any untrue statement if such untrue statement
was made in reliance upon and in conformity with written information furnished
by or on behalf of the Warrantholder specifically for use in preparation of the
Registration Statement, and the Warrantholder promptly will reimburse the
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim; provided, however,
that the Warrantholder shall not be liable for any amounts in excess of the
proceeds it receives upon the sale of the Shares.
(d) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person hereunder, such indemnified person shall
notify the indemnifying person in writing of such claim
8
or of the commencement of such action and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein and,
to the extent it shall wish, to assure the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof. In the event that
the indemnifying party shall have assumed the defense of such action, such
indemnifying party shall not enter into any compromise or settlement without
the indemnified party's prior written consent, which consent shall not be
unreasonably withheld, delayed or denied.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for hereunder is due in
accordance with its terms but for any reason is held to be unavailable or
insufficient to hold harmless an indemnified party, the Company on the one hand
and the Warrantholder on the other hand shall, in lieu of indemnifying such
indemnified party, contribute to the aggregate losses, claims, damages or
liabilities referred to herein (including costs of any investigation and legal
and other expenses reasonable incurred in connection therewith, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted),
in such proportions as is appropriate to reflect the relative benefits received
by the Company and the Warrantholder from any offering of Common Stock and the
relative fault of the Company and the Warrantholder in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company and the Warrantholder shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission related to information
supplied by the Company (including for this purpose information supplied by any
officer, director, employee or agent of the Company) or to written information
supplied by any officer, director, employee or agent of the Company) or to
written information furnished to the Company by or on behalf of the
Warrantholder specifically for use in the preparation of the Registration
Statement or any amendment thereof or supplement thereto, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the provisions hereof, in
no case shall the Warrantholder be liable or responsible for any amount in
excess of the proceeds received by the Warrantholder from the sale of the
Shares included in the Registration Statement, provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes hereof,
each person, if any, who controls the Warrantholder within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") shall have the same
rights to contribution as the Warrantholder, and each person, if any, who
controls the Company within the meaning of the Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, each director of the Company and each
officer of the Company who shall have signed the Registration Statement shall
have the same rights to contribution as the Company, subject to the immediately
preceding sentence. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties hereunder, notify such party or parties from whom
contribution may be sought, and the omission so to notify such party or
9
parties from whom contribution may be sought shall relieve the party or parties
from whom contribution may be sought (if such party was unaware of such action,
suit, or proceeding and was materially prejudiced by such omission) from any
liability hereunder, but not from any other obligation it or they may have
hereunder or other than under this Section 11.2. No party shall be liable for
contribution with respect to the settlement of any action, suit, proceeding or
claim effected without its written consent. The obligations of the
Warrantholder to contribute pursuant to this Section 11.2 are several and not
joint in proportion to its respective number of Shares included in the
Registration Statement.
11.3. Prospectus Delivery Requirements. The Warrantholder agrees not to
make any sale of the Shares, pursuant to the Registration Statement without
effectively causing the prospectus delivery requirements under the Securities
Act to be satisfied. The Warrantholder acknowledges that there may occasionally
be times when the Company must suspend the use of the prospectus forming a part
of the Registration Statement until such time as an amendment to such
Registration Statement has been filed by the Company and declared effective by
the Commission or until the Company has amended or supplemented such
prospectus. In the event that the Registration Statement has been suspended,
the Company shall provide written notice of such suspension to the Selling
Shareholder. In the event that such Registration Statement is no longer subject
to such suspension, the Company shall provide written notice to such Selling
Shareholder that such Selling Shareholder may thereafter effect sales pursuant
to such Registration Statement.
Section 12. Severability. The parties hereto intend that each section of
this Agreement should be viewed as separate and divisible, and in the event
that any section, provision, agreement or condition of this Agreement shall be
held to be invalid, void, or unenforceable, such section provision, covenant or
condition shall be enforced to the maximum extent permitted under applicable
law and the remainder of the provisions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
Section 13. Governing Law; Jurisdiction; Venue. This Agreement and the
performance hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York, without giving effect to such State's rules
governing the conflicts of laws. In addition, each of the parties hereto
irrevocably consents to the exclusive jurisdiction of the courts of the State
of New York County of New York, and of any federal court located in the State
of New York, County of New York, in connection with any action or proceeding
arising out of or relating to, or a breach of, this Agreement, or any document
or instrument delivered in connection with this Agreement.
Section 14. Amendments. This Agreement may only be modified or amended by
an instrument in writing signed by the Company and the Warrantholder.
Section 15. Notices. All notices, claims, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if sent by a nationally-recognized
overnight courier, by facsimile, or by registered or certified mail, return
receipt requested and postage prepaid, addressed as follows:
10
if to the Company:
MangoSoft, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President;
if to Warrantholder, to the address set forth on
the signature page hereto;
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of a
nationally-recognized overnight courier, on the next business day after the
date when sent, (c) in the case of facsimile, when received, and (d) in the
case of mailing, on the third business day following that on which the piece of
mail containing such communication is posted.
Section 16. Headings and Pronouns. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
Section 17. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter contained
herein and supersedes any and all other prior or contemporaneous agreements,
arrangements, and understandings, either oral or in writing, between the
parties hereto with respect to the subject matter hereof. Each party to this
Agreement acknowledges and represents that no representations, warranties,
covenants, conditions, inducement, promises or agreements, oral or otherwise,
other than as set forth herein, have been made by either party hereto, or
anyone acting on behalf of either party.
Section 18. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one agreement.
11
IN WITNESS WHEREOF, the parties hereto have executed this Warrant
Agreement as of the date specified below.
Number of Warrants:__________________
Warrant Price: ______________________
Date: ________________________ By: _________________________________
Print name:
Title:
WARRANTHOLDER
Print name of Warrantholder on line below:
______________________________________
By:___________________________________
Print name:
Title, if applicable:
Warrantholder's address for notices:
______________________________________
______________________________________
______________________________________
Facsimile No.:________________________
Attention: ___________________________
12
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE, AND THE COMMON STOCK
ISSUABLE UPON EXERCISE OF SUCH WARRANTS, HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. SUCH WARRANTS MAY NOT BE SOLD,
ASSIGNED, EXCHANGED OR OTHERWISE TRANSFERRED IN ANY MANNER AND SUCH
COMMON STOCK MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
WARRANT CERTIFICATE NO._____
MANGOSOFT, INC.
WARRANTS TO PURCHASE COMMON STOCK
This certifies that, for value received, ______________________ (the
"Warrantholder") is the registered owner of _________ warrants (the
"Warrants"), each Warrant representing the right to purchase from MangoSoft,
Inc. (the "Company"), at any time prior to 5:00 p.m., Eastern Time, on
_____________________ (the "Termination Date"), one share of common stock of
the Company, par value $0.001 per share (the "Common Stock") at an initial
purchase price of U.S. $_______ per share of Common Stock (the "Warrant
Price"). The Warrants are subject to, and each Warrantholder, by acceptance of
this certificate consents to, all the terms and provisions of the Warrant
Agreement by and between the Company and the Warrantholder, dated as of June 8,
2000 (the "Warrant Agreement"), pursuant to which the Warrants were issued. Any
capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the attached Purchase Form duly
executed, and simultaneous payment of the Warrant Price for each Warrant
exercised, or, if applicable, by cashless exercise pursuant to Section 3(b) of
the Warrant Agreement, at the principal office of the Company. Payment of the
Warrant Price shall be made at the option of each Warrantholder in cash or by
certified or cashier's check.
Upon any partial exercise of the Warrants evidenced hereby, there shall be
executed and issued to the Warrantholder effecting such partial exercise a new
Warrant Certificate in respect of the Common Stock as to which the Warrants
evidenced hereby shall not have been exercised. These Warrants may be exchanged
at the office of the Company by surrender of this Warrant Certificate properly
endorsed for one or more new Warrants of the same aggregate number of shares of
Common Stock as here evidenced by the Warrant or Warrants exchanged. No
fractional shares of Common Stock will be issued upon the exercise of rights to
purchase hereunder, but the Company shall pay the cash value of any fraction
upon the exercise of one or more Warrants. These Warrants are transferable at
the office of the Company in the manner and subject to the limitations set
forth in the Warrant Agreement.
This Warrant Certificate does not entitle any Warrantholder to any of the
rights of a shareholder of the Company.
[Signature page follows]
2
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the
date specified below.
MANGOSOFT, INC.
Date: ________________________ By: _________________________________
Print name:
Title:
3
PURCHASE FORM
MangoSoft, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
Pursuant to Section 3 of the Warrant Agreement, the undersigned hereby
irrevocably elects to exercise the right of purchase represented by this
Warrant Certificate for, and to purchase thereunder,
___________________________ shares of Common Stock provided for therein, and
requests that certificates for such Common Stock be issued in the name of:
Print name: ________________________________
Address: ___________________________________
____________________________________________
Taxpayer Identification Number: ____________
If this Warrant Certificate is hereby being exercised with respect to
fewer than all the shares of Common Stock specified herein, please issue a new
Warrant Certificate for the unexercised balance of the Warrants, registered in
the name of the undersigned Warrantholder or his assignee as below indicated
and delivered to the address stated below.
Name of Warrantholder(s)
or assignee(s) (Please print): ___________________________________
Address: _____________________________________________________________
Dated: __________________________
If entity, print name on line below: Individual
____________________________________ By: _______________________
Print name:
By: ________________________________
Print name:
Title:
Note: The above signature block must correspond exactly with the name as
set forth on the face of this Warrant Certificate.
ASSIGNMENT FORM
MangoSoft, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
Print name: ________________________________
Address: ___________________________________
____________________________________________
Taxpayer Identification Number: ____________
the within Warrants, hereby irrevocably constituting and appointing
_______________________ the undersigned's attorney-in-fact to transfer said
Warrants on the books of the Company, with full power of substitution.
If entity, print name on line below: Individual
____________________________________ By: _______________________
Print name:
By: ________________________________
Print name:
Title:
Note: The above signature block must correspond exactly with the name as
set forth on the face of this Warrant Certificate.
CASHLESS EXERCISE FORM
MangoSoft, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
Pursuant to Section 3(b) of the Warrant Agreement, the undersigned hereby
irrevocably elects to exercise the right represented by this Warrant
Certificate for, and to receive thereunder without any cash payment,
_______________________ shares of Common Stock of the Company (the "Common
Stock") as provided for therein, and requests that certificates for such Common
Stock be issued in the name of:
Print name: ________________________________
Address: ___________________________________
____________________________________________
Taxpayer Identification Number: ____________
If this Warrant Certificate is hereby being exercised with respect to
fewer than all the Common Stock specified herein, please issue a new Warrant
Certificate for the unexercised balance of the Warrants, registered in the name
of the undersigned Warrantholder as below indicated and delivered to the
address stated below.
Name of Warrantholder(s)
or assignee(s) (Please print): ___________________________________
Address: _____________________________________________________________
Dated: __________________________
If entity, print name on line below: Individual
____________________________________ By: _______________________
Print name:
By: ________________________________
Print name:
Title:
Note: The above signature block must correspond exactly with the name as
set forth on the face of this Warrant Certificate.