Exhibit 4.10(b)
THIS WARRANT AND THE COMMON STOCK PURCHASABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO AN EXEMPTION TO SUCH ACT.
COMMON STOCK PURCHASE WARRANT
Warrant No. 105 Number of Shares: 1,626
ABOVENET COMMUNICATIONS INC.
Void after June 30, 2004
1. ISSUANCE. AboveNet Communications Inc., a Delaware corporation
(hereinafter with its successors, the "Company") hereby issues this Warrant to
Therma Corporation for good and valuable consideration, the receipt of which is
hereby acknowledged.
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Warrant (the
"Holder"), commencing on the date hereof, is entitled upon surrender of this
Warrant with the subscription form annexed hereto duly executed, at the
principal office of the Company, or such other office as the Company shall
notify the Holder of in writing, to purchase from the Company at a price per
share of $40.375 (the "Purchase Price"), 1,626 fully paid and nonassessable
shares of Common Stock of the Company (the "Stock"). Until such time as this
Warrant is exercised in full or expires, the Purchase Price and the securities
issuable upon exercise of this Warrant are subject to adjustment as hereinafter
provided.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) in
cash or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond in
writing to an inquiry by the Holder as to the fair market value of any
securities the Holder may wish to deliver to the Company pursuant to clause
(iii) above.
4. NET ISSUE ELECTION. At any time from time to time, the Holder may
elect to receive, without the payment by the Holder of any additional
consideration, shares equal to
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the value of this Warrant or any portion hereof by the surrender of this Warrant
or such portion to the Company, with the net issue election notice annexed
hereto duly executed, at the principal office of the Company. Thereupon, the
Company shall issue to the Holder such number of fully paid and nonassessable
shares of Stock as is computed using the following formula:
X = Y (A-B)
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A
Where:
X = the number of shares to be issued to the Holder
pursuant to this Section 4.
Y = the number of shares covered by this Warrant in
respect of which the net issue election is made
pursuant to this Section 4.
A = the fair market value of one share of Stock, as
determined in good faith by the Board, as at the time
the net issue election is made pursuant to this
Section 4.
B = the Purchase Price in effect under this Warrant at
the time the net issue election is made pursuant to
this Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Stock.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Stock is issued hereunder shall be deemed to
have become the holder of record of the shares represented thereby as at the
close of business on the date this Warrant is exercised with respect to such
shares, whether or not the transfer books of the Company shall be closed.
7. EXPIRATION DATE. This Warrant shall expire at the close of business
on June 30, 2004, and shall be void thereafter.
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8. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that such shares as may be issued
pursuant to the exercise of this Warrant will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof.
9. DIVIDENDS. If after June 30, 1999 (the "Original Issue Date"), the
Company shall subdivide the Stock, by split-up or otherwise, or combine the
Stock, or issue additional shares of Stock in payment of a stock dividend on the
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, and the
Purchase Price shall forthwith be proportionately decreased in the case of a
subdivision or stock dividend, or proportionately increased in the case of a
combination.
10. MERGERS AND RECLASSIFICATIONS. If after the Original Issue Date
there shall be any reclassification, capital reorganization or change of the
Stock (other than as a result of a subdivision, combination or stock dividend
provided for in Section 9 hereof), or any consolidation of the Company with, or
merger of the Company into, another corporation or other business organization
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
outstanding Stock), or any sale or conveyance to another corporation or other
business organization of all or substantially all of the assets of the Company,
then, as a condition of such reclassification, reorganization, change,
consolidation, merger, sale or conveyance, lawful provisions 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 thereafter have the
right to purchase, at a total price not to exceed that payable upon the exercise
of this Warrant in full, the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, reorganization,
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of Stock which might have been purchased by the Holder immediately prior
to such reclassification, reorganization, change, consolidation, merger, sale or
conveyance, and in any such case appropriate provisions shall be made with
respect to the rights and interest of the Holder to the end that the provisions
hereof (including without limitation, provisions for the adjustment of the
Purchase Price and the number of shares issuable hereunder) shall thereafter be
applicable in relation to any shares of stock or other securities and property
thereafter deliverable upon exercise hereof.
11. CERTIFICATE OF ADJUSTMENT. Whenever the number of shares issuable
upon exercise of this Warrant is adjusted, as herein provided, the Company shall
promptly deliver to the Holder a certificate setting forth the Purchase Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment.
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12. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a cash
dividend) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger
involving the Company (other than the merger contemplated by the
Agreement and Plan of Merger, dated as of June 22, 1999 among the
Company, Metromedia Fiber Network, Inc., and Magellan Acquisition,
Inc.), or sale or conveyance of all or substantially all of its assets,
or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
13. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder.
14. WARRANT REGISTER; TRANSFERS, ETC.
(a) The Company will maintain a register containing the names
and addresses of the registered holders of the Warrants. The Holder may
change its address as shown on the warrant register by written notice
to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be
given by certified mail or delivered to the Holder at its address as
shown on the warrant register.
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(b) Subject to compliance with applicable federal and state
securities laws, this Warrant may be transferred by the Holder with
respect to any or all of the shares purchasable hereunder. Upon
surrender of this Warrant to the Company, together with the assignment
hereof properly endorsed, for transfer of this Warrant as an entirety
by the Holder, the Company shall issue a new warrant of the same
denomination to the assignee. Upon surrender of this Warrant to the
Company, together with the assignment hereof properly endorsed, by the
Holder for transfer with respect to a portion of the shares of Stock
purchasable hereunder, the Company shall issue a new warrant to the
assignee, in such denomination as shall be requested by the Holder
hereof, and shall issue to such Holder a new warrant covering the
number of shares in respect of which this Warrant shall not have been
transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for
and upon surrender and cancellation of any mutilated Warrant, or (ii)
in lieu of any Warrant lost, stolen or destroyed, upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant (including a reasonably detailed affidavit
with respect to the circumstances of any loss, theft or destruction)
and of indemnity reasonably satisfactory to the Company, provided,
however, that so long as Therma Corporation is the registered holder of
this Warrant, no indemnity shall be required other than its written
agreement to indemnify the Company against any loss arising from the
issuance of such new warrant.
15. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
16. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts among Delaware residents entered into and to be
performed entirely within Delaware.
17. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of and bind the
Holder's successors, legal representatives and permitted assigns.
18. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in the State of Delaware, then such action
may be taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
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19. MARKET STAND-OFF. Holder hereby agrees that, during the period of
duration (not to exceed one hundred eighty (180) days) specified by the Company
and an underwriter of Common Stock or other securities of the Company, following
the effective date of a registration statement of the Company filed under the
Securities Act of 1933, as amended, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period, except Common Stock included in such registration. In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the securities of Holder (and the shares or
securities of every other person subject to the foregoing restriction) until the
end of such period.
Dated: September 3, 1999 ABOVENET COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Executive Vice President and Secretary
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Subscription
To: Date:
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The undersigned hereby subscribes for __________ shares of Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
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Signature
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Name for Registration
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Mailing Address
Net Issue Election Notice
To: Date:
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The undersigned hereby elects under Section 4 to surrender the right to
purchase _______ shares of Stock pursuant to this Warrant. The certificate(s)
for the shares issuable upon such net issue election shall be issued in the name
of the undersigned or as otherwise indicated below.
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Signature
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Name for Registration
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Mailing Address
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Assignment
For value received ____________________________ hereby sells,
assigns and transfers unto ______________________________________
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Please print or typewrite name and address of Assignee
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the within Warrant, and does hereby irrevocably constitute and appoint
_______________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:
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In the Presence of:
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