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EXHIBIT 10.52
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS WARRANT AND SUCH UNDERLYING SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, RENOUNCED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH
APPLICABLE LAWS OF ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IN NOT REQUIRED AND SUCH
FOREIGN JURISDICTION LAWS HAVE BEEN SATISFIED.
HIGH SPEED NET SOLUTIONS, INC.
Warrant No. 1
Warrant Issue Date: July ____, 2000
Warrant Is Exercisable After: January 31, 2001
Warrant Expiration Date: July 31, 2005
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued as of this ____ day of July, by High Speed Net
Solutions, Inc., a North Carolina corporation (the "Company"), to ____[AAA
Trust]_____ or permitted assigns (the "Holder").
1. Issuance of Warrant; Term; Price.
1.1 Issuance. (a) The Holder is purchasing ____[One Hundred
Thirty Thousand Two (130,002)]____ shares of Common Stock of the Company under a
Subscription Agreement dated July ____, 2000 (the "Stock Subscription"). In
consideration of the Stock Subscription, the receipt and sufficiency of which is
hereby acknowledged, the Company hereby grants to Holder the right to purchase
Two Hundred Sixty Thousand Four (260,004) shares of Common Stock of the Company,
the "Warrant Shares").
1.2 Term. The shares issuable upon exercise of this Warrant
are hereinafter referred to as the "Shares." This Warrant shall be exercisable
at any time and from time to time in whole or in part during the period
commencing on January 31, 2001 and ending on July 31, 2005.
1.3. Exercise Price. The exercise price (the "Warrant Price")
per share for which all or any of the Shares may be purchased pursuant to the
terms of this Warrant shall be $4.625 per share, subject to adjustment as
provided herein.
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2. Adjustment of Warrant Price, Number and Kind of Shares. The Warrant
Price and the number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time and the Company agrees
to provide notice upon the happening of certain events as follows.
2.1 Dividends in Stock Adjustment. In case at any time or from
time to time on or after the date hereof the holders of the Common Stock of the
Company (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received, or, on or after the record
date fixed for the determination of eligible stockholders, shall have become
entitled to receive, without payment therefor, other or additional securities or
other property (other than cash) of the Company by way of dividend or
distribution, then and in each case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of Shares
receivable thereupon, and without payment of any additional consideration
therefor, the amount of such other or additional securities or other property
(other than cash) of the Company which such holder would hold on the date of
such exercise had it been the holder of record of such Common Stock on the date
hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional securities or other property receivable by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
this subsection 2.1 and subsections 2.2 and 2.3 of this Section 2.
2.2 Reclassification or Reorganization Adjustment. In case of
any reclassification or change of the outstanding securities of the Company or
of any reorganization of the Company (or any other corporation the stock or
securities of which are at the time receivable upon the exercise of this
Warrant) on or after the date hereof, then and in each such case the Company
shall give the holder of this Warrant at least thirty (30) days notice of the
proposed effective date of such transaction, and the holder of this Warrant,
upon the exercise hereof at any time after the consummation of such
reclassification, change or reorganization, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
hereof prior to such consummation, the stock or other securities or property to
which such holder would have been entitled upon such consummation if such holder
had exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in subsections 2.1 and 2.3 of this Section 2.
2.3 Stock Splits and Reverse Stock Splits. If at any time on
or after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of this Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
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3. No Fractional Shares. No fractional Shares will be issued in
connection with any subscription hereunder. In lieu of any fractional shares
that would otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one share
issuable under the Warrant on the date of exercise, as determined in good faith
by the Company's Board of Directors.
4. No Stockholder Rights. This Warrant as such shall not entitle its
holder to any of the rights of a stockholder of the Company until the holder has
exercised this Warrant in accordance with Section 6 hereof.
5. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will use its best efforts to reserve
from its authorized and unissued Common Stock a sufficient number of shares to
provide for the issuance of Warrant Shares upon the exercise of this Warrant.
The Company agrees that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for Shares upon the
exercise of this Warrant.
6. Exercise of Warrant. This Warrant may be exercised by Holder by the
surrender of this Warrant at the principal office of the Company, accompanied by
payment in full of the purchase price of the shares purchased thereby, as
described above. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person or entity entitled to receive the shares or other
securities issuable upon such exercise shall be treated for all purposes as the
holder of such shares of record as of the close of business on such date. As
promptly as practicable, the Company shall issue and deliver to the person or
entity entitled to receive the same a certificate or certificates for the number
of full shares of Warrant Shares issuable upon such exercise, together with cash
in lieu of any fraction of a share as provided above. The shares of Warrant
Shares issuable upon exercise hereof shall, upon their issuance, be fully paid
and nonassessable.
7. Certificate of Adjustment. Whenever the Warrant Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
8. Notice of Proposed Transfers. This Warrant is transferable by the
Holder hereof subject to compliance with this Section 8. Prior to any proposed
transfer of this Warrant or the Shares received pursuant to the exercise of this
Warrant (the "Securities"), unless there is in effect a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), covering
the proposed transfer, the Holder thereof shall (i) provide to the Company a
letter of representation, addressed from the proposed transferee to the Company,
acceptable to the Company and its counsel, and (ii) give written notice to the
Company of such Holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall, if the Company so requests, be accompanied (except
in transactions in compliance with Rule 144) by either (i) an unqualified
written opinion of legal counsel who shall
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be reasonably satisfactory to the Company addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Securities Exchange Commission (the "Commission") to the effect that the
transfer of such Securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of the Securities shall be entitled to transfer
the Securities in accordance with the terms of the notice delivered by the
Holder to the Company; provided, however, no such registration statement or
opinion of counsel shall be necessary for a transfer by a Holder to any
affiliate of such Holder, or a transfer by a Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner
or the transfer by gift, will or intestate succession of any partner to his
spouse or lineal descendants or ancestors, if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
the original Holder hereunder. Each certificate evidencing the Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for the Company such legend is not required in
order to establish compliance with any provisions of the Securities Act.
9. Replacement of Warrants. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant, and in the case of any such loss, theft or
destruction of the Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company, and reimbursement to
the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of the Warrant if mutilated, the Company will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
10. Dividends and Distributions. For so long as any part of this
Warrant remains outstanding and unexercised, the Company will, upon the
declaration of a cash dividend upon its Common Stock or other distribution to
the Holders of its Common Stock and at least ten (10) days prior to the record
date, notify the Holder hereof of such declaration, which notice will contain,
at a minimum, the following information: (i) the date of the declaration of the
dividend or distribution, (ii) the amount of such dividend or distribution,
(iii) the record date of such dividend or distribution, and (iv) the payment
date or distribution date of such dividend or distribution. The Holder shall,
upon the exercise hereof, be entitled to receive, in addition to the number of
shares of Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of such other or additional
securities or other property (other than cash) of the Company which such Holder
would hold on the date of such exercise had it been the holder of record of such
Common Stock on the date hereof and had thereafter, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional securities or other property receivable by it as
aforesaid during such period, giving effect to all adjustments pursuant to
Section 2.
11. Miscellaneous. This Warrant shall be governed by the laws of the
State of North Carolina. The headings in this Warrant are for purposes of
convenience of reference only, and shall not be deemed to constitute a part
hereof. The invalidity or unenforceability of any provision
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hereof shall in no way affect the validity or enforceability of any other
provisions. All notices and other communications from the Company to the holder
of this Warrant shall be delivered personally or mailed by first class mail,
postage prepaid, to the address furnished to the Company in writing by the last
holder of this Warrant who shall have furnished an address to the Company in
writing, and if mailed shall be deemed given three (3) days after deposit in the
U.S. Mail.
12. Taxes. The Company shall pay all issue taxes and other governmental
charges (but not including any income taxes of a Holder) that may be imposed in
respect of the issuance or delivery of the Shares or any portion thereof.
13. Amendment. Any term of this Warrant may be amended with the written
consent of the Company and the Holder. Any amendment effected in accordance with
this Section 13 shall be binding upon the Holder of this Warrant, each future
holder of such Warrant, and the Company.
14. Remedies. In the event of any default or threatened default by the
Company in the performance of or observance with any of the terms of this
Warrant, it is agreed that remedies at law are not and will not be adequate for
the Holder and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
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IN WITNESS WHEREOF, the undersigned officer of the Company has set his
hands as of the date first above written.
HIGH SPEED NET SOLUTIONS, INC.
By: _______________________________
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