Warrant to Purchase Common Stock - I-many Inc. and Accenture LLP
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. EXCEPT AS
OTHERWISE PROVIDED HEREIN, THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SUCH ACT.
WARRANT TO PURCHASE COMMON STOCK
OF
I-MANY, INC.
VOID AFTER APRIL 11, 2004
THIS WARRANT is issued to Accenture LLP, or its registered assigns (the
"Holder"), by I-many, Inc., a Delaware corporation (the "Company"), on April 11,
2001 (the "Warrant Issue Date").
1. PURCHASE SHARES. The Holder of this Warrant is entitled, upon
surrender of this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the holder hereof in writing), to
purchase from the Company up to one hundred twenty four thousand, eight hundred
fifty six (124,856) fully paid and nonassessable shares of Common Stock of the
Company, par value $.0001 per share (the "Shares") that have become Vested
Shares (as defined below). The number of Shares and Vested Shares shall be
subject to adjustment pursuant to SECTION 8 hereof.
2. EXERCISE PRICE. The purchase price for the Shares shall be $9.725,
as adjusted from time to time pursuant to SECTION 8 hereof (the "Exercise
Price").
3. EXERCISE PERIOD. This Warrant shall be exercisable, in whole or in
part, during the term commencing on the Warrant Issue Date and ending at 5:00
p.m. on the third anniversary of the Warrant Issue Date to purchase that number
of Shares that have vested in accordance with SECTION 4 ("Vested Shares").
4. VESTED SHARES.
(a) Fifty percent (50%) of the number of Shares set forth in
SECTION 1 shall become Vested Shares, if at all, upon the
date of issuance of the press release by Accenture LLP and
the Company pursuant to CLAUSE (i) of SECTION 3.2.1 of the
Alliance Agreement.
(b) The remaining Shares shall become Vested Shares, if at all,
upon the date the Company deems the Foundational Marketing
Activities (as defined in the Alliance Agreement) to be
performed by Accenture LLP pursuant to SECTION 3.2.1 of the
Alliance Agreement to be complete in all material respects
in the sole discretion of the Company, which discretion will
not be unreasonably withheld.
5. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with SECTION 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed
copy of the form of Notice of Election attached hereto, to
the Secretary of the Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being
purchased.
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6. NET EXERCISE. In lieu of exercising this Warrant pursuant to SECTION
5, the Holder may elect to receive, without the payment by the Holder of any
additional consideration, shares of Common Stock from the Vested Shares equal to
the value of this Warrant (or the portion thereof being canceled) by surrender
of this Warrant at the principal office of the Company together with notice of
such election, in which event the Company shall issue to the holder hereof a
number of shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where: X = The number of shares of Common Stock to be issued to the
Holder pursuant to this net exercise;
Y = The number of Vested Shares in respect of which
the net issue election is made;
A = The fair market value of one share of the Common Stock
at the time the net issue election is made;
B = The Exercise Price (as adjusted to the date of
the net issuance).
For purposes of this SECTION 6, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or on the National Market System of the NASDAQ Stock Market,
the value shall be deemed to be the average of the daily closing price of common
stock of the Company as reported on such securities exchange or the National
Market System of the NASDAQ Stock Market (as reported in THE WALL STREET JOURNAL
or, if not reported therein, in another authoritative source) for the five (5)
consecutive full trading days (in which such shares are traded on such
securities exchange or the National Market System of the NASDAQ Stock Market)
ending at the close of trading on the trading day immediately preceding such
particular date; (ii) if traded over-the-counter, the value shall be deemed to
be the average of the closing bid or sale prices (whichever is applicable) for
the five (5) consecutive full trading days ending at the close of trading on the
trading day immediately preceding such particular date; and (iii) if there is no
active public market, the value shall be the fair market value thereof, as
determined in good faith by the Board of Directors of the Company. The portion
of this Warrant which is canceled pursuant to this Section 6 shall be deemed to
have been exercisable for Vested Shares.
7. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter (with appropriate
restrictive legends, if applicable), and in any event within thirty (30) days of
the delivery of the subscription notice.
8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of and
kind of securities purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this
Warrant subdivide its Common Stock, by split-up or
otherwise, or combine its Common Stock, or issue additional
shares of its Common Stock or Common Stock as a dividend
with respect to any shares of its Common Stock, the number
of Shares issuable on the exercise of this Warrant shall
forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased
in the case of a combination. Appropriate adjustments shall
also be made to the Exercise Price payable per share, but
the aggregate purchase price payable for the total number of
Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any
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adjustment under this SECTION 8(a) shall become effective at
the close of business on the date the subdivision or
combination becomes effective, or as of the record date of
such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In case
of any reclassification, capital reorganization, or change
in the Common Stock of the Company (other than as a result
of a subdivision, combination, or stock dividend provided
for in SECTION 8(A) above), then, as a condition of such
reclassification, reorganization, or change, lawful
provision shall be made, and duly executed documents
evidencing the same from the Company or its successor shall
be delivered to the Holder, so that the Holder shall have
the right at any time prior to the expiration of this
Warrant to purchase, at a total price equal to that payable
upon the exercise of this Warrant, the kind and amount of
shares of stock and other securities and property receivable
in connection with such reclassification, reorganization, or
change by a holder of the same number of shares of Common
Stock as were purchasable by the Holder immediately prior to
such reclassification, reorganization, or change. In any
such case, appropriate provisions shall be made with respect
to the rights and interest of the Holder so that the
provisions hereof shall thereafter be applicable with
respect to any shares of stock or other securities and
property deliverable upon exercise hereof, and appropriate
adjustments shall be made to the Exercise Price per share
payable hereunder, provided the aggregate purchase price
shall remain the same. Notwithstanding the foregoing, in the
event that there shall occur any reorganization,
recapitalization, consolidation or merger involving the
Company in which the Common Stock is converted into or
exchanged for securities of another entity (other than any
such transaction not constituting a Change of Control), then
this Warrant shall expire upon the later to occur of (i)
immediately prior to the consummation of such event, or (ii)
thirty (30) days after the Holder receives written notice
from the Company of the consummation date or anticipated
consummation date of such event. For purposes of this
Section 8(b), a "CHANGE OF CONTROL" means a (i) sale of
substantially all of the Company's assets, or (ii) any
transaction, including, without limitation, any merger or
consolidation of the Company, in which immediately following
such transaction the security holders of the Company
immediately prior to such transaction own, directly or
indirectly, less than fifty percent (50%) of the combined
voting power of the Company.
(c) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made in the number or kind of shares purchasable upon
exercise of the Warrant, or in the Exercise Price, the
Company shall promptly notify the Holder of such event and
of the number of shares of Common Stock or other securities
or property thereafter purchasable upon exercise of this
Warrant.
9. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
10. NO STOCKHOLDER RIGHTS. Prior to exercise of this Warrant, the
Holder shall not be entitled to any rights of a stockholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of stockholder meetings, and such Holder shall not be entitled to any
notice or other communication concerning the business or affairs of the Company.
However, nothing in this SECTION 10 shall limit the right of the Holder to be
provided the Notices required under this Warrant.
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11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO THE HOLDER. The
Company hereby represents and warrants to the Holder as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The Company has the right, power and capacity to execute,
deliver and perform this Warrant and to issue the Shares
contemplated hereby. The execution, delivery and performance
of this Warrant, and the issuance of the Shares contemplated
hereby, have been duly and validly authorized by all
necessary corporate action on the part of the Company. This
Warrant has been duly and validly executed and delivered by
the Company and constitutes the Company's legal, valid and
binding obligation, enforceable in accordance with its
terms.
(c) The Shares, when issued, sold and delivered in accordance
with the terms of this Warrant, shall be duly and validly
issued, fully-paid and non-assessable.
(d) The execution, delivery and performance of this Warrant and
the issuance and sale of the Shares will not result in the
violation of any material term of any mortgage, indenture,
contract, agreement, instrument, judgment, decree, order,
statute, rule or regulation to which the Company is subject
and a violation of which would have a material adverse
effect on the condition, financial or otherwise, or
operations of the Company.
(e) The Company has filed all reports required to be filed by
it, since March 13, 2000, with the Securities and Exchange
Commission (the "SEC") pursuant to Sections 13, 14 and 15 of
the Securities Exchange Act of 1934, as amended, and with
the NASDAQ Stock Market (collectively, the "COMPANY SEC
REPORTS"). None of the Company SEC Reports, as of their
respective dates (or, if amended or superseded by a filing
prior to the date of this Warrant, then on the date of such
filing), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading and such Company SEC Reports conformed, in all
material respects, with all of the statutes and published
rules and regulations enforced or promulgated by the
regulatory authority or exchange with which they were filed.
12. REPRESENTATIONS AND WARRANTIES OF THE HOLDER TO THE COMPANY. The
Holder hereby represents and warrants to the Company that the Holder has the
right, power and capacity to execute, deliver and perform this Warrant and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Warrant, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
action, corporate or otherwise, on the part of the Holder. This Warrant has been
duly and validly executed and delivered by the Holder and constitutes the
Holder's legal, valid and binding obligation, enforceable in accordance with its
terms.
13. REGISTRATION RIGHTS. The Company shall use reasonable efforts to
cause the Holder to at all times have the rights of an "Investor" under that
certain Amended and Restated Registration Rights Agreement dated December 30,
1999 by and among the Company and the stockholders named therein (the
"Registration Rights Agreement").
14. SECURITIES LAWS REPRESENTATIONS AND COVENANTS OF THE HOLDER.
(a) This Warrant is issued to the Holder in reliance upon the
Holder's representation to the Company, which by the
Holder's execution of this Warrant the Holder hereby
confirms, that the Shares will be acquired for investment
for the Holder's own account, not as a nominee or agent, and
not with a view to the direct or indirect sale or
distribution of any part thereof, and that the Holder has no
present intention of selling, granting any participation in,
or otherwise distributing the same.
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Notwithstanding the foregoing, the Holder may transfer this
Warrant or the Shares issued or issuable hereunder to an
Affiliate that (i) is an "Accredited Investor" as that term
is defined in Regulation D promulgated by the SEC under the
Securities Act and (ii) is not Arthur Andersen LLP or any
legal entity that, directly or through one or more
intermediaries, controls, is controlled by, or is under
common control with Arthur Andersen LLP; PROVIDED, HOWEVER,
that no transfer shall be permitted as a result of this
sentence if the number of holders of this Warrant or the
Shares issued or issuable hereunder would, as a result,
exceed six such holders. For purposes of this Warrant,
"Affiliate" means all entities that are under the control
of, controlled by or under common control with Holder and
also includes all partnerships, firms, corporations,
entities, individuals, and their successors and assigns,
wherever located, which together comprise the Accenture
Worldwide Organization whether by virtue of their member
firm interfirm agreements with Accenture Partners Societe
Cooperative or any successor thereto acting to coordinate
the business of such entities or by virtue of a contract
with or ownership, direct or indirect, by a member firm or
otherwise being under control, directly or indirectly, of
one or more member firms and which are thereby deemed part
of the Accenture Worldwide Organization.
(b) The Holder covenants that in no event will it dispose of any
of the Shares within the period of one hundred and eighty
(180) days beginning on the Warrant Issue Date other than
(i) a transfer to an Affiliate, or (ii) a sale as a part of
a merger of or acquisition of control of the Company by a
person or group that is not an Affiliate.
(c) The Holder covenants that in no event will it dispose of any
of the Shares other than pursuant to an effective
registration statement or Rule 144 or Rule 144A promulgated
by the SEC under the Securities Act of 1933, as amended (the
"SECURITIES ACT") (or any similar or analogous rule) unless
and until (i) the Holder shall have notified the Company of
the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding
the proposed disposition, and (ii) if requested by the
Company, the Holder shall have furnished the Company with an
opinion of counsel reasonably satisfactory in form and
substance to the Company and the Company's counsel to the
effect that (x) such disposition will not require
registration under the Securities Act and (y) appropriate
action necessary for compliance with the Securities Act and
any applicable state, local or foreign law has been taken;
PROVIDED, HOWEVER, that the Holder shall not be required to
satisfy the conditions specified in clauses (i) and (ii)
above for any transfer to an Affiliate.
(d) The Holder represents that: (i) the Holder is an "Accredited
Investor" as that term is defined in Regulation D
promulgated by the SEC under the Securities Act and has such
knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the
Holder's prospective investment in the Shares; (ii) the
Holder has received all the information requested by it from
the Company and considered necessary or appropriate for
deciding whether to exercise this Warrant for the Shares;
(iii) the Holder has the ability to bear the economic risks
of such Holder's prospective investment; and (iv) the Holder
is able, without materially impairing its financial
condition, to hold the Shares for an indefinite period of
time and to suffer complete loss on its investment.
15. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the Holders
hereof and their respective successors and assigns.
16. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holder.
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17. NOTICES. Any notice or other communication given pursuant to this
Warrant shall be in writing and shall be deemed to have been received either
when delivered personally to the party for whom intended, or five (5) days
following the deposit of the same into the United States mail (certified mail,
return receipt requested, or first class postage prepaid), addressed to such
party at the address as set forth below:
For the Company:
I-many, Inc.
537 Congress Street
Portland, ME 04101
Fax: (207) 828-0492
Attention: General Counsel
For the Holder:
Notices to the Holder shall be sent to the address of the
Holder on the books of the Company (or at such other place as
the Holder shall notify the Company hereof in writing).
18. CAPTIONS. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
19. GOVERNING LAW. This Warrant shall be governed and construed in
accordance with the laws of the State of Illinois (without giving effect to
choice of law principles thereof).
IN WITNESS WHEREOF, I-many, Inc. and Accenture LLP have executed this
Warrant as of the day and year first above written.
I-MANY, INC.
By: /s/ A. Leigh Powell
-----------------------
Name: A. Leigh Powell
-----------------------
Title: Chief Executive Officer
-----------------------
ACCENTURE LLP
By: /s/ James Gearhart
-----------------------
Name: James Gearhart
-----------------------
Title: Partner
-----------------------
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NOTICE OF EXERCISE
To: I-MANY, INC.
The undersigned hereby elects to [CHECK APPLICABLE
SUBSECTION]:
________ (a) Purchase _________________ shares of Common Stock
of I-Many, Inc., pursuant to the terms of the
attached Warrant and payment of the Exercise Price
per share required under such Warrant accompanies
this notice;
OR
________ (b) Exercise the attached Warrant for [all of the shares]
[________ of the shares] [CROSS OUT INAPPLICABLE
PHRASE] purchasable under the Warrant pursuant to
the net exercise provisions of SECTION 6 of such
Warrant.
The undersigned represents and warrants to the Company that the
representations and warranties of the Holder set forth in SECTIONS 12 and 13 of
the attached Warrant are true and correct as of the date hereof.
WARRANTHOLDER:
ACCENTURE LLP
By:
----------------------------
Name:
Title:
Address:
Date:
------------------------
Name in which shares should be registered:
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