1
Exhibit 10.25
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO A WRITTEN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
COMMON STOCK PURCHASE WARRANT
OPTIMARK TECHNOLOGIES, INC. (the "Company")
DATE OF INITIAL ISSUANCE: JUNE 19, 1998
THIS CERTIFIES THAT for value received, TRANSAMERICA BUSINESS CREDIT
CORPORATION or its registered assigns (hereinafter called the "Holder") is
entitled to purchase from the Company, at any time during the Term of this
Warrant, Forty Two Thousand Five Hundred (42,500) shares (subject to the
limitation set forth in Section 2.3 below) of common stock, $0.01 par value, of
the Company (the "Common Stock"), at the Warrant Price, payable as provided
herein. The exercise of this Warrant shall be subject to the provisions,
limitations and restrictions herein contained, and may be exercised in whole or
in part.
SECTION 1. Definitions.
For all purposes of this Warrant, the following terms shall have the
meanings indicated:
Common Stock - shall mean and include the Company's authorized Common
Stock, $0.01 par value, as constituted at the date hereof.
Exchange Act - shall mean the Securities Exchange Act of 1934, as amended
from time to time.
Securities Act - the Securities Act of 1933, as amended.
Term of this Warrant - shall mean the period beginning on the date of
initial issuance hereof and ending on June 18, 2003.
Warrant Price - $10.00 per share, subject to adjustment in accordance with
Section 4 hereof.
Warrant - this Warrant issued in connection with a Commitment Letter dated
April 23, 1998 executed by the Company and Transamerica Business Credit
Corporation (the "Commitment Letter") to the original holder of this Warrant, or
any permitted transferees from such original holder or this Holder.
Warrant Shares - shares of Common Stock purchased or purchasable by the
Holder of this Warrant upon the exercise hereof.
2
SECTION 2. Exercise of Warrant.
2.1. Procedure for Exercise of Warrant. To exercise this Warrant in whole
or in part (but not as to any fractional share of Common Stock), the Holder
shall deliver to the Company at its office referred to in Section 11 hereof at
any time and from time to time during the Term of this Warrant: (i) the Notice
of Exercise in the form attached hereto, (ii) cash, certified or official bank
check payable to the order of the Company, wire transfer of funds to the
Company's account (or any combination of any of the foregoing) in the amount of
the aggregate Warrant Price for each Warrant Share being purchased, and (iii)
this Warrant. Notwithstanding any provisions herein to the contrary, if the
Current Market Price (as defined in Section 5) is greater than the Warrant Price
(at the date of calculation, as set forth below), in lieu of exercising this
Warrant as hereinabove permitted, the Holder may elect to receive shares of
Common Stock equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the office of
the Company referred to in Section 11 hereof, together with the Notice of
Exercise, in which event the Company shall issue to the Holder that number of
shares of Common Stock computed using the following formula:
CS = WCS x (CMP-WP)
--------------
CMP
Where
CS equals the number of shares of Common Stock to be issued to the
Holder
WCS equals the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being exercised (at the date of such
calculation)
CMP equals the Current Market Price (at the date of such calculation)
WP equals the Warrant Price (as adjusted to the date of such
calculation)
Subject to the limitations set forth in Section 6.2 hereof regarding the
transfer of Warrant Shares, in the event of any exercise of the rights
represented by this Warrant, a certificate or certificates for the Warrant
Shares so purchased, registered in the name of the Holder or such other name or
names as may be designated by the Holder, shall be delivered to the Holder
hereof within a reasonable time, not exceeding fifteen (15) days, after the
rights represented by this Warrant shall have been so exercised; and, unless
this Warrant has expired, a new Warrant representing the number of Warrant
Shares (except a remaining fractional share), if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
hereof within such time. The person in whose name any certificate for Warrant
Shares is issued upon exercise of this Warrant shall for all purposes be deemed
to have become the holder of record of such shares on the date on which the
Warrant was surrendered and payment of the aggregate Warrant Price and any
applicable taxes was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open.
2.2. Transfer Restriction Legend. Each certificate for Warrant Shares
shall bear the following legends (and any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon which
such Warrant Shares may, at the time of such exercise, be listed) on
2
3
the face thereof unless at the time of exercise such Warrant Shares shall be
registered under the Securities Act:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
OR PURSUANT TO A WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THAT COMMON
STOCK PURCHASE WARRANT DATED JUNE 19, 1998 IN FAVOR OF TRANSAMERICA
BUSINESS CREDIT CORPORATION, A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE.
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 under a registration statement of the securities
represented thereby) shall also bear such legend unless, in the written opinion
of counsel for the holder thereof (which counsel shall be reasonably
satisfactory to counsel for the Company) the securities represented thereby are
not, at such time, required by law to bear such legend.
2.3. Limitation on Exercise; Reduction of Number of Warrant Shares. Prior
to March 31, 1999, the Holder shall not be permitted to exercise this Warrant
for a greater number of Warrant Shares than results from the following
computation: 42,500 times a fraction, the numerator of which is the aggregate
amount of Equipment Cost represented by all Lease Schedules funded under the
Master Lease Agreement dated as of June 19, 1998 under which the Company is
Lessee (the "Master Lease"), and the denominator of which is $5,000,000. In the
event that the Lessor under the Master Lease declines to fund further Lease
Schedules under the Master Lease on the grounds that the Lessee has suffered a
material adverse change, then this Warrant will thereafter be exerciseable only
for the number of Warrant Shares set forth in the preceding sentence. If, as of
March 31, 1999, the Lessor has not declined to fund Lease Schedules in this
manner, then this Warrant shall thereafter be fully exerciseable as though this
Section 2.3 were not present.
SECTION 3. Covenants as to Common Stock. The Company covenants and agrees that
all shares of Common Stock that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof. The Company further covenants and agrees that it will pay
when due and payable any and all federal and state taxes which may be payable in
respect of the issue of this Warrant or any Common Stock or certificates
therefor issuable upon the exercise of this Warrant; provided, however, the
Company shall not be required to pay any tax or other incidental expense which
may be payable in respect of (i) any transfer or delivery of this Warrant by the
Holder to another person or entity or (ii) the issuance or delivery of
certificates representing Warrant Shares to a person or entity other than the
Holder. The Company further covenants and agrees that the Company will at all
times have authorized and reserved, free from preemptive rights, a sufficient
number of shares of Common Stock to provide for the exercise of the rights
represented by this Warrant. The Company further covenants and agrees that if
3
4
any shares of capital stock to be reserved for the purpose of the issuance of
Warrant Shares upon the exercise of this Warrant require registration with or
approval of any governmental authority under any federal or state law before
such Warrant Shares may be validly issued or delivered upon exercise, then the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be.
SECTION 4. Certain Adjustments
a. Capital Adjustments. The number of Warrant Shares purchasable
upon the exercise of this Warrant and the Warrant Price then in effect shall be
subject to adjustment as follows:
i. Stock Dividends, Splits, Etc.. If at any time during the
Term of this Warrant (A) the Company shall pay a stock dividend payable in
shares of Common Stock or (B) the number of shares of Common Stock shall be
increased by a subdivision or split-up of shares of Common Stock, then, on the
date of the payment of such dividend or immediately after the effective date of
subdivision or split up, as the case may be, the number of Warrant Shares to be
delivered upon exercise of this Warrant will be increased so that the Holder
will be entitled to receive the number of shares of Common Stock that such
Holder would have owned immediately following such action had this Warrant been
exercised immediately prior thereto, and the Warrant Price will be adjusted as
provided below in paragraph (iii).
ii. Combination of Stock. If the number of shares of Common
Stock outstanding at any time during the Term of this Warrant shall be decreased
by a combination of the outstanding shares of Common Stock, then, immediately
after the effective date of such combination, the number of Warrant Shares to be
delivered upon exercise of this Warrant will be decreased so that the Holder
thereafter will be entitled to receive the number of shares of common Stock that
such Holder would have owned immediately following such action had this Warrant
been exercised immediately prior thereto, and the Warrant Price will be adjusted
as provided below in paragraph (iii).
iii. Warrant Price Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of this Warrant is adjusted as provided
pursuant to this Section 4(a), the Warrant Price payable upon the exercise of
this Warrant shall be adjusted by multiplying such Warrant Price immediately
prior to such adjustment by a fraction, of which the numerator shall be the
number of Warrant Shares purchasable upon the exercise of the Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Warrant Shares purchasable immediately thereafter; provided, however,
that the Warrant Price for each Warrant Share shall in no event be less than the
par value of such Warrant Share.
b. Certain Distributions.
i. Warrant Price Adjustment. In case the Company shall at any
time or from time to time distribute to all or substantially all of the holders
of shares of its Common Stock (including, but not limited to, any distribution
made in connection with a merger or consolidation in which the Company is the
resulting or surviving entity and the Common Stock is not changed or exchanged),
evidences of indebtedness of the Company or another entity, securities of the
Company or another entity, or other assets (excluding dividends payable in
shares of Common Stock for which adjustment is made under Section 4(a)(i) and
excluding cash dividends and distributions) or rights or warrants to subscribe
for or purchase the foregoing (excluding options to purchase and rights to
subscribe for Common Stock or other securities of the Company convertible into
or exchangeable for Common
4
5
Stock), or if the Company shall declare a cash dividend upon its Common Stock
payable otherwise then out of earnings or earned surplus (each, a
"Distribution"), then, and in each such case, the Warrant Price then in effect
shall be adjusted (and any other appropriate actions shall be taken by the
Company) by multiplying the Warrant Price in effect immediately prior to the
date of such Distribution by a fraction (A) the numerator of which shall be the
Current Market Price of the Common Stock less the fair market value of the
evidences of indebtedness, securities or other assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive), and (B) the denominator of which shall be
the Current Market Price of the Common Stock. Such adjustment shall be made
whenever any Distribution is made.
ii. Additional Shares. In addition to the Warrant Price
adjustment pursuant to paragraph (i) above, in case the Company shall at any
time or from time to time make a Distribution of securities of the Company or
another entity as described in paragraph (i) above (the "Additional Shares"),
then, and in each such case, the Company shall, at its expense, cause an
additional warrant (the "Additional Warrant"), substantially in the form of this
Warrant, to be issued by such entity or the Company, as the case may be, to
evidence the Holder's right to acquire the kind and amount of Additional Shares
receivable by a holder of the number of shares of Common Stock that such Holder
would have been entitled to receive upon exercise of this Warrant had this
Warrant been exercised immediately before such Distribution is made, subject to
adjustments that shall be as nearly equivalent as practicable to the adjustments
provided for in this Section 4. The Additional Warrant shall be subject to
adjustments that shall be as nearly equivalent as practicable to the adjustments
provided for in this Section 4. The exercise price for each Additional Share
shall be determined conclusively by the Board of Directors in good faith after
considering the relationship that exists (as of the date of the issuance of the
Additional Warrant) between the Warrant Price and the fair market value of each
Warrant Share; provided, however, that such exercise price shall in no event be
greater than the amount by which the Warrant Price was decreased pursuant to
paragraph (i) above.
c. No Adjustment. If the Company shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the number of Warrant Shares
and/or the Warrant Price then in effect shall be required by reason of the
taking of such record.
SECTION 5. Additional Adjustment Provisions. (a) All calculations under Section
4 shall be made to the nearest cent or to the nearest one-tenth (1/10) of a
share, as the case may be.
(b) For the purpose of any computation pursuant to Section 4, the Current
Market Price at any date of one share of Common Stock shall be deemed to be the
average of the daily closing prices for the 15 consecutive business days ending
on the last business day before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 15
business day period). The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sales took place on such
day, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or as reported by Nasdaq (or if the
Common Stock is not at the time listed or admitted for trading on any such
exchange or if prices of the Common Stock are not reported by Nasdaq then such
price shall be equal to the average of the last reported bid and asked prices on
such day as reported by The National Quotation Bureau Incorporated or any
similar reputable quotation and reporting service, if such quotation is not
reported by The National Quotation Bureau Incorporated); provided, however, that
5
6
if the Common Stock is not traded in such manner that the quotations referred to
in this clause (b) are available for the period required hereunder, the Current
Market Price shall be determined in good faith by the Board of Directors of the
Company.
(c) Whenever the Warrant Price shall be adjusted as provided in Section 4,
the Company shall prepare a statement showing the facts requiring such
adjustment and the Warrant Price that shall be in effect after such adjustment.
The Company shall cause a copy of such statement to be sent by mail, first class
postage prepaid, to each Holder of this Warrant at its, his or her address
appearing on the Company's records. Where appropriate, such copy may be given in
advance and may be included as part of the notice required to be mailed under
the provisions of subsection (e) of this Section 5.
(d) Adjustments made pursuant to Section 4 shall be made on the date such
dividend, subdivision, split-up, combination or Distribution, as the case may
be, is made, and shall become effective at the opening of business on the
business day next following the record date for the determination of
stockholders entitled to such dividend, subdivision, split-up, combination or
distribution.
(e) In the event the Company shall propose to take any action of the types
described in Section 4, the Company shall forward, at the same time and in the
same manner, to the Holder of this Warrant such notice, if any, which the
Company shall give to the holders of capital stock of the Company.
(f) In any case in which an adjustment shall become effective immediately
after a record date for an event, the Company may defer until the occurrence of
such event issuing to the Holder of all or any part of this Warrant which is
exercised after such record date and before the occurrence of such event the
additional shares of capital stock (if any) issuable upon such exercise by
reason of the adjustment required by such event over and above the shares of
capital stock issuable upon such exercise before giving effect to such
adjustment exercise; provided, however, that upon such exercise by the Holder,
the Company shall deliver to such Holder a due xxxx or other appropriate
instrument evidencing such Holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
SECTION 6. Ownership.
6.1. Ownership of This Warrant. The Company may deem and treat the person
in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary until presentation of this Warrant for registration of transfer
as provided in this Section 6.
6.2. Transfer and Replacement. Subject to the limitations set forth in
this Section 6.2, this Warrant and all rights hereunder are transferable in
whole or in part upon the books of the Company by the Holder hereof in person or
by duly authorized attorney, and a new Warrant or Warrants, of the same tenor as
this Warrant but registered in the name of the transferee or transferees (and in
the name of the Holder, if a partial transfer is effected) shall be made and
delivered by the Company upon surrender of this Warrant duly endorsed, at the
office of the Company referred to in Section 11 hereof. Notwithstanding any
other provision of this Warrant, no transfer of this Warrant or the Warrant
Shares may by made unless such transfer complies in all respects with applicable
federal and state securities laws, including without limitation, the Securities
Act and provided that such transfer does not result in the Company having a
class of equity security held of record by 500 or more persons as determined in
accordance with Section 12(g) of the Exchange Act and the rules and regulations
promulgated thereunder. If requested by the Company in the event of a proposed
transfer of this Warrant or the
6
7
Warrant Shares by the Holder, an opinion of counsel to the Holder transferring
this Warrant or the Warrant Shares (which shall be satisfactory to the Company)
shall be supplied to the Company at such transferring Holder's expense, to the
effect that such transfer complies with the applicable state and federal
securities laws. Notwithstanding the foregoing, no opinion of counsel will be
required in the case of a transfer of the entire Warrant (and all of the Warrant
Shares) by the Holder to an entity whose beneficial ownership is not different
from that of the Holder, where the Holder receives no consideration from an
unaffiliated third party in connection with such transfer, provided that such
transfer complies with the applicable state and federal securities laws. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft or destruction, and, in such case, of indemnity or security reasonably
satisfactory to it, and upon surrender of this Warrant if mutilated, the Company
will make and deliver a new Warrant of like tenor, in lieu of this Warrant;
provided that if the Holder hereof is an instrumentality of a state or local
government or an institutional holder or a nominee for such an instrumentality
or institutional holder an irrevocable agreement of indemnity by such Holder
shall be sufficient for all purposes of this Section 6, and no evidence of loss
or theft or destruction shall be necessary. This Warrant shall be promptly
cancelled by the Company upon the surrender hereof in connection with any
transfer or replacement. In the case of the loss, theft or destruction of this
Warrant, the Company shall pay all expenses, taxes and other charges payable in
connection with any replacement of this Warrant. Stock transfer taxes (if any)
payable in connection with a transfer of this Warrant shall be payable by the
Holder.
SECTION 7. Mergers, Consolidation, Sales. In the case of any proposed
consolidation or merger of the Company with another entity, or the proposed sale
of all or substantially all of its assets to another person or entity, or any
proposed reorganization or reclassification of the capital stock of the Company,
then, lawful and adequate provision shall be made whereby the Holder of this
Warrant shall thereafter have the right to receive upon the basis and upon the
terms and conditions specified herein, in lieu of the shares of the Common Stock
of the Company immediately theretofore purchasable hereunder, such shares of
stock, securities or assets as may (by virtue of such consolidation, merger,
sale, reorganization or reclassification) be issued or payable with respect to
or in exchange for the number of shares of such Common Stock purchasable
hereunder immediately before such consolidation, merger, sale, reorganization or
reclassification. In any such case appropriate provision shall be made with
respect to the rights and interests of the Holder of this Warrant to the end
that the provisions hereof shall thereafter be applicable as nearly as may be,
in relation to any shares of stock, securities or assets thereafter deliverable
upon the exercise of this Warrant.
SECTION 8. Notice of Dissolution or Liquidation. In case of any distribution of
the assets of the Company in dissolution or liquidation (except under
circumstances when the foregoing Section 7 shall be applicable), the Company
shall give notice thereof to the Holder hereof and shall make no distribution to
shareholders until the expiration often (10) business days from the date of
mailing of the aforesaid notice and, in any case, the Holder hereof may exercise
this Warrant within ten (10) business days from the date of the giving of such
notice, and all rights herein granted not so exercised within such thirty-day
period shall thereafter become null and void.
SECTION 9. Notice of Extraordinary Dividends. If the Board of Directors of the
Company shall declare any dividend or other distribution on its Common Stock
except out of earned surplus or by way of a stock dividend payable in shares of
its Common Stock, the Company shall mail notice thereof to the Holder hereof not
less than ten (10) business days prior to the record date fixed for determining
shareholders entitled to participate in such dividend or other distribution, and
the Holder hereof shall not participate in such dividend or other distribution
unless this Warrant is exercised prior to such record
7
8
date. The provisions of this Section 9 shall not apply to distributions made in
connection with transactions covered by Section 7.
SECTION 10. Fractional Shares. Fractional shares shall not be issued upon the
exercise of this Warrant but in any case where the Holder would, except for the
provisions of this Section 10, be entitled under the terms hereof to receive a
fractional share upon the complete exercise of this Warrant, the Company shall,
upon the exercise of this Warrant for the largest number of whole shares then
called for, pay a sum in cash equal to the excess of the value of such
fractional share (determined in such reasonable manner as may be prescribed in
good faith by the Board of Directors of the Company) over the Warrant Price for
such fractional share.
SECTION 11. Notices. Any notice or other document required or permitted to be
given or delivered to the Holder shall be delivered at, or sent by certified or
registered mail, courier service or overnight mail to, the Holder at
Transamerica Technology Finance Division, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Assistant Vice President, Lease Administration,
with a copy to the Lender at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department or to such other
address as shall have been furnished to the Company in writing by the Holder.
Any notice or other document required or permitted to be given or delivered to
the Company shall be delivered at, or sent by certified or registered mail,
courier service or overnight mail to, the Company at 00 Xxxxxxxx Xxxxx, 00xx
Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx, 00000, Attention: Vice President Finance &
Administration with a copy to Xxxxxx, Xxxxxxxxxx & Xxxxx, P.C., One Civic Center
Plaza, 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxx X.
Xxxxx, Esq. or to such other address as shall have been furnished in writing to
the Holder by the Company. Any notice so addressed and mailed by registered or
certified mail shall be deemed to be given when delivered by hand, if personally
delivered; when delivered by courier or overnight mail, if delivered by
commercial courier service or overnight mail; and when mailed, if sent by
registered or certified mail.
SECTION 12. No Rights as Stockholder; Limitation of Liability. This Warrant
shall not entitle the Holder to any of the rights of a shareholder of the
Company except upon exercise in accordance with the terms hereof. No provision
hereof, in the absence of affirmative action by the Holder to purchase shares of
Common Stock, and no mere enumeration herein of the rights or privileges of the
Holder, shall give rise to any liability of the Holder for the Warrant Price
hereunder or as a shareholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
SECTION 13. Law Governing. THE VALIDITY, INTERPRETATION, AND ENFORCEMENT OF THIS
WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SECTION 14. Miscellaneous. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by both
parties (or any respective predecessor in interest thereof). The headings in
this Warrant are for purposes of reference only and shall not affect the meaning
or construction of any of the provisions hereof.
SECTION 15. Successors. The provisions of this Warrant shall inure to the
benefit of and be binding upon the Company, the Holder and their respective
permitted assigns. Nothing in this Warrant, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Warrant, except as expressly provided in
this Warrant.
8
9
SECTION 16. Representations and Warranties by the Holder. The Holder represents
and warrants to the Company as follows:
a. This Warrant is being acquired and any Warrant Shares will be
acquired for the Holder's own account, for investment and not with a view to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
b. The Holder understands that this Warrant has not been and the
Warrant Shares will not be registered under the Securities Act by reason of
their issuance in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act pursuant to Section 4(2) thereof.
Accordingly, this Warrant and the Warrant Shares must be held by the Holder
indefinitely, and the Holder must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is registered
under the Securities Act or is exempted from such registration.
c. The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
acquisition of this Warrant and the Warrant Shares and of protecting its
interests in connection therewith.
d. The Holder is able to bear the economic risk of the purchase of
Warrant Shares pursuant to the terms of this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer this 19th day of June, 1998.
OPTIMARK TECHNOLOGIES, INC.
[CORPORATE SEAL] By: /s/ Xxxx X. Xxxxxxx
------------------------------
Title: VP Finance & Adm.
---------------------------
9
10
FORM OF NOTICE OF EXERCISE
[To be signed only upon exercise of the Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase __________ shares
of Common Stock which the undersigned is entitled to purchase by the terms of
the within Warrant according to the conditions thereof, and herewith
[check one]
o makes payment of $___________ therefor; or
o directs the Company to issue _______ shares,
and to withhold ____ shares in lieu of
payment of the Warrant Price, as described in
Section 2.1 of the Warrant.
All shares to be issued pursuant hereto shall be issued in the name of and the
initial address of such person to be entered on the books of the Company shall
be:
The shares are to be issued in certificates of the following
denominations:
________________________________________
[Type Name of Holder]
By: ____________________________________
Title: _________________________________
Dated: ___________________________
10
11
FORM OF ASSIGNMENT
(ENTIRE)
[To be signed only upon transfer of entire Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto _________________________________ all rights of the undersigned
under and pursuant to the within Warrant, and the undersigned does hereby
irrevocably constitute and appoint ___________________________ Attorney to
transfer the said Warrant on the books of the Company, with full power of
substitution.
________________________________________
[Type Name of Holder]
By: ____________________________________
Title: _________________________________
Dated: ___________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
11
12
FORM OF ASSIGNMENT
(PARTIAL)
[To be signed only upon partial transfer of Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers
unto _________________________________ (i) the rights of the undersigned to
purchase ___ shares of Common Stock under and pursuant to the within Warrant,
and (ii) on a non-exclusive basis, all other rights of the undersigned under and
pursuant to the within Warrant, it being understood that the undersigned shall
retain, severally (and not jointly) with the transferee(s) named herein, all
rights assigned on such non-exclusive basis. The undersigned does hereby
irrevocably constitute and appoint ____________________________ Attorney to
transfer the said Warrant on the books of the Company, with full power of
substitution.
________________________________________
[Type Name of Holder]
By: ____________________________________
Title: _________________________________
Dated: ___________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
12
