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EXHIBIT 10.12
THE SECURITY EVIDENCED BY THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED, EXCEPT AS EXPLICITLY PROVIDED HEREIN.
Agreement and Warrant to Purchase<>Common Shares
Spatialight, Inc.
(December __, 1999)
This Agreement and Non-Transferrable Warrant (the "Warrant") certifies that, for
value received, <>, the registered holder hereof (the "Warrantholder") is
entitled to purchase from Spatialight, Inc., a New York corporation with its
principal office at 0 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000
(the "Company") <> shares of Common Stock of the Company (the
"Shares") at or before 5:00 p.m. Eastern Standard Time on June 30, 2002, at the
purchase price per share of $3.50 (the "Warrant Price"), subject to the
following terms and conditions. The number of Shares purchasable upon exercise
of this Warrant and the Warrant Price per Share shall be subject to adjustment
from time to time as set forth herein.
1. Consideration for Warrant.
This Warrant has been issued in consideration of a loan provided to the
Company by Warrantholder, the receipt of which is hereby acknowledged.
2. Exercise.
(a) This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form as attached hereto duly completed
and executed, together with payment of the Warrant Price at the
principal office of the Company. Payment of the Warrant Price may be
made in cash, by wire transfer, by check or pursuant to the provisions
of Section 2(b) below. Upon surrender of the Warrant and payment of such
Warrant Price as aforesaid, 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 the Warrantholder may
designate a certificate or certificates for the number of full Shares so
purchased upon the exercise of the Warrant, together with Fractional
Warrants, as provided in Section 7 hereof, 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 the surrender of the Warrant
and the payment of the Warrant Price, as aforesaid, notwithstanding that
the certificates representing the Shares shall not actually have been
delivered or that the stock transfer books of the Company shall then be
closed. In the event that the Warrant is exercised in respect of less
than all of the Shares specified herein at any time prior to the
Termination Date, a new Warrant evidencing the remaining Shares will be
issued by the Company.
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The Company shall pay any and all transfer taxes or similar charges
which may become due upon exercise of the Warrant.
(b) Notwithstanding any provisions herein to the contrary, so long as
and to the extent that this Warrant may be exercised, in lieu of
exercising the Warrant for cash, 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 exercised). The holder may make the
election described in this Section 2(b) by surrendering this Warrant,
delivering a notice of election under this provision and providing the
other documents referenced in Section 2(a), following the procedures set
forth in such section. In such event the Company shall issue (i) within
thirty (30) days a new Warrant substantially in the form hereof
representing the number of Shares with respect to which this Warrant
shall not then have been exercised and (ii) a number of Shares computed
using the following formula:
Y (A-B)
X =
---------
A
Where X = the number of Shares to be issued,
Y = the portion of the Warrant being exercised,
A = the fair market value of one share of Common Stock (at the
date of such calculation), and
B = the Warrant Price.
For purposes of the above calculation, fair market value of one
share of Common Stock shall be determined by the Board in good faith;
provided, however, that where there exists a public market for the
Company's Common Stock at the time of such exercise, fair market value
shall mean the average over the preceding ten trading days (or such
fewer number of days as such public market has existed) of the average
of the high and low prices on the over-the-counter market as reported by
the National Association of Securities Dealers Automated Quotation
("Nasdaq") system, or if the Common Stock of the Company is then traded
on a national securities exchange or the Nasdaq Stock Market, the
average over the preceding ten (10) trading days (or such fewer number
of days as the Common Stock has been so traded) of the closing sale
prices on the principal national securities exchange or the Nasdaq
market on which it is so traded.
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3. Reservation of Shares.
On or after the date of this Warrant, the Company will reserve from its
authorized and unissued shares of Common Stock a sufficient number of
shares to provide for the issuance of Shares upon the exercise of this
Warrant. Every transfer agent for the securities of the company issuable
upon the exercise of the Warrant will be irrevocably authorized and
directed at all times to reserve such number of authorized Shares and
other securities as shall be requisite for such purpose. The Company
will keep a copy of this Warrant on file with every transfer agent for
the securities of the Company issuable upon the exercise of the Warrant.
The Company will supply such transfer agent with duly executed stock and
other certificates for such purpose.
4. Further Obligations of Company.
4.1. The Company covenants and agrees that all Shares which may be
delivered upon exercise of this Warrant shall, upon delivery, be
fully paid and non-assessable, and be free from all taxes, liens
and charges with respect to the purchase thereof hereunder, and
without limiting the generality of the foregoing, the Company
covenants and agrees that it shall from time to time take all
such actions as may be necessary to assure that the par value per
share of the Common Stock is at all times equal to or less than
the then current Warrant Price per share of the Shares issuable
pursuant to this Warrant.
4.2. If the Warrantholder claims that this Warrant has been mutilated,
lost, destroyed or wrongfully taken, the Company shall issue and
deliver to the Warrantholder a replacement Warrant provided that
the requirements of Section 8-405 of the New York Uniform
Commercial Code has been met and, if this Warrant has been
mutilated, that it is surrendered to the Company.
5. Registration.
The Warrant shall be registered on the books of the Company when issued
and shall be transferable only on the books of the Company maintained at
its principal office in Novato, California, or wherever its principal
executive offices may then be located, upon delivery thereof duly
endorsed by the Warrantholder or its duly authorized attorney or
representative, or accompanied by proper evidence of succession,
assignment or authority to transfer. This Warrant shall not be
transferable in whole or in part unless the Company pre-approves such
transfer in writing, provided, however, that the Company shall
pre-approve reasonable transfers made for estate planning purposes. Upon
any registration or approved transfer, the Company shall execute and
deliver a new Warrant or Warrants to the person or persons entitled
thereto.
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6. Adjustment of Warrant Price and Number of Shares.
6.1. General. The number of Shares purchasable upon the exercise of
the Warrant and the Warrant Price shall be subject to adjustment
from time to time upon the happening of certain events, as
follows:
6.1.1. In case the Company shall, with regard to its Common Stock
(or securities convertible into or exchangeable for Common
Stock) (A) pay a dividend in Common Stock or make a
distribution in Common Stock, (B) subdivide its
outstanding shares of Common Stock into a greater number
of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares, or (D) issue by
reclassification of its Common Stock or other securities
of the Company, the number of Shares purchasable upon
exercise of the Warrant immediately prior thereto shall be
adjusted so that the Warrantholder shall be entitled to
receive the kind and number of Shares or other securities
of the Company which it would have owned or would have
been entitled to receive after the happening of any of the
events described above, had the Warrant been exercised
immediately prior to the happening of such event or any
record date with respect thereto. Any adjustment made
pursuant to this subsection shall become effective
immediately after the effective date of such event
retroactive to the record date, if any, for such event.
6.1.2. No adjustment in the number of Shares purchasable
hereunder shall be required unless such adjustment would
require an increase or decrease of at least one percent in
the aggregate number of Shares then purchasable upon the
exercise of the Warrant; provided however, that any
adjustments which by reason of this Section 6.1.2 are not
required to be made immediately shall be carried forward
and taken into account in any subsequent adjustment.
6.1.3. Whenever the number of Shares purchasable upon the
exercise of the Warrant is adjusted as herein provided,
the Warrant Price payable upon exercise of the 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 Shares
purchasable upon the exercise of the Warrant immediately
prior to such adjustment, and of which the denominator
shall be the number of shares so purchasable immediately
thereafter.
6.1.4. Whenever the number of Shares purchasable upon the
exercise of this Warrant or the Warrant Price is adjusted
as herein provided, the Company shall cause to be promptly
mailed to the Warrantholder in accordance with the
provisions of Section 9 hereof, notice of such adjustment
or adjustments and a certificate of a firm of independent
public accountants
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selected by the Board of Directors of the Company (who may
be the regular accountants employed by the Company)
setting forth the number of Shares purchasable upon the
exercise of the Warrant and the Warrant Price after such
adjustment, a brief statement of the facts requiring such
adjustment, and the computation by which such adjustment
was made.
6.1.5. For the purpose of this Section 6.1, the term "Common
Stock" shall mean (A) the class of shares designated as
the Common Stock of the Company at the date of this
Warrant, or (B) any other class of shares resulting from
successive changes or reclassifications of such Common
Stock including changes in a par value, or from par value
to no par value, or from no par value to par value. In the
event that at any time, as a result of an adjustment made
pursuant to this Section 6, the Warrantholder shall become
entitled to purchase any shares of the Company other than
shares of Common Stock, thereafter the number of such
other shares so purchasable upon exercise of the Warrant
and the Warrant Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with
respect to the Shares contained in this Section 6.
6.2. No Adjustment of Dividends. Except as provided in Section 6.1, no
adjustment in respect of dividends shall be made during the term
of the Warrant or upon the exercise of the Warrant.
6.3. Preservation of Purchase Rights upon Reorganization,
Reclassification, Consolidation, Merger, etc. In case of any
capital reorganization or reclassification of the Common Stock of
the Company, or in case of any consolidation of the Company with
or merger of the Company into another corporation or in case of
any sale or conveyance to another person of the property, assets
or business of the Company as an entirety or substantially as an
entirety, the Company or such successor or purchaser, as the case
may be, shall execute with the Warrantholder an agreement that
the Warrantholder shall have the right thereafter upon payment of
the Warrant Price in effect immediately prior to such action to
purchase upon exercise of the Warrant the kind and amount of
shares and other securities and property which it would have
owned or have been entitled to receive after the happening of
such reorganization or reclassification, consolidation, merger,
sale or conveyance had the Warrant been exercised immediately
prior to such action. In the event of a merger described in
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, in which the Company is the surviving corporation, the
right to purchase Shares under the Warrant shall terminate on the
date of such merger and thereupon the Warrant shall become null
and void but only if the controlling corporation shall agree to
substitute for the Warrant its warrant which entitles the holder
thereof to purchase upon its exercise the kind and amount of
shares and other securities and property which it would have
owned or had been entitled to receive has the Warrant been
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exercised immediately prior to such merger. The adjustments
required by this Section 6.3 shall be effected in a manner which
shall be as nearly equivalent as may be practicable to the
adjustments provided for elsewhere in this Section 6. The
provisions of this Section 6.3 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
6.4. Statement on Warrants; Legends. Irrespective of any adjustments
in the Warrant Price or the number or kind of Shares purchasable
upon the exercise of the Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to
express the same price and number and kind of Shares as are
stated in this initially issued Warrant. The Company may at any
time place legends referencing any applicable securities law
restrictions on certificates representing the Shares. Holder
shall, at the request of the Company, promptly present to the
Company any and all certificates representing the Shares in order
to carry out the provisions of this Section.
7. Fractional Shares.
The Company shall not be required to issue fractional Shares on the
exercise of the Warrant. If any fraction of a Share would, except for
the provisions of this Section 7, be issuable on the exercise of the
Warrant (or specified portion thereof), the Company shall issue to the
Warrantholder a fractional Warrant entitling Warrantholder, upon
surrender with other fractional Warrants aggregating one or more full
Shares, to purchase such full Shares. If fractional Warrants do not
aggregate a full Share, their value (over and above their exercise
price) shall be paid in full in cash upon exercise to the exercising
Warrantholder.
8. No Rights as Shareholder; Notices to Warrantholder.
Nothing contained in this Warrant shall be construed as conferring upon
the Warrantholder or its transferees any rights as shareholder of the
Company, including the right to vote, receive dividends, or consent as a
shareholder in respect of any meeting of shareholders for the election
of directors of the Company or any other matter. However, the Company
shall be required to give notice in writing to the Warrantholder of any
meeting of shareholders of the Company or any proposed consent of the
shareholders as provided in Section 9 hereof at least twenty (20) days
prior to the date fixed as a record date or the date of closing the
transfer books 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 at any such
meeting or as to which any consent is requested. Such notice shall
specify such record date or the date of closing the transfer books, as
the case may be.
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9. Notices.
Any notice pursuant to this Warrant by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly
given if delivered by hand or if mailed by certified mail, return
receipt requested, postage prepaid, addressed as follows:
9.1. If to the Warrantholder -- addressed to:
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9.2. If to the Company -- addressed to:
Spatialight, Inc.
0 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
or to such other address as any such party may designate by notice to the other
party. Notices shall be deemed given at the time they are delivered personally
or three days after they are mailed in the manner set forth above.
10. Successors.
All the covenants and provisions of this Warrant by or for the benefit
of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
11. Merger or Consolidation of the Company.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
person, unless the provisions of Section 6.3 are complied with.
12. Applicable Law.
This Warrant shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance
with the laws of said State applicable to contracts made and to be
performed entirely within such State, without regard to principles of
conflicts of law.
13. Counterparts.
This Warrant may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and
the same instrument.
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14. Further Assurances.
From time to time after the Closing, the Company shall promptly execute
and deliver to each Warrantholder such further agreements and assurances
as the Warrantholder may reasonably request in order to vest and confirm
ownership of the Shares and the Warrants in the Warrantholder and to
effectuate the purposes, terms and conditions of this Agreement. Each
party hereto may evidence its execution and delivery hereof by facsimile
delivery of an original signature page at or prior to closing, which
facsimile shall be deemed to be an original for all purposes.
15. Headings.
The headings in this Warrant are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Warrant.
16. Indemnification.
The Company shall indemnify and hold each Investor harmless from and
against any loss, damage or expense which may result from (i) the
inaccuracy or falsity of any representation or warranty of Company
hereunder, or (ii) the failure of Company to fulfill its covenants
hereunder.
17. Warrantholder Representation.
The Warrantholder represents that (a) this Warrant is acquired for the
Warrantholder's own account and not with a view to or for sale in
connection with any distribution of the Warrant and (b) the
Warrantholder is an "accredited investor" as defined in Regulation D
promulgated under the Act.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officers and the corporate seal hereunto fixed.
(corporate seal) SPATIALIGHT, INC.
Attest:
By:
--------------------------- --------------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Holder represents that Holder is familiar with the terms and provisions of this
Warrant Agreement and hereby accepts the Warrant subject to all of the terms and
provisions thereof.
Date:
---------------------------- -----------------------------------------
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Attachment I
PURCHASE FORM
TO. Spatialight, Inc.
1. The undersigned hereby elects to purchase ________________ shares of the
Common Stock of Spatialight, Inc., pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below.
----------------------------------
(Name)
----------------------------------
(Address)
----------------------------------
(Name of Warrant Holder)
----------------------------------
(Date)
By:
--------------------------------
Title:
----------------------------
(Name of purchaser, and title and
signature of authorized person)
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Attachment 2
INVESTMENT REPRESENTATION STATEMENT
Shares of the Common Stock of
Spatialight, Inc.
In connection with the purchase of the above-listed securities, the undersigned
hereby represents to Spatialight, Inc. (the "Company") as follows
(a) The shares of Common Stock and other securities, if any, to be received upon
the exercise of the Warrant (the "Securities") will be acquired for investment
for its own account, not as a nominee or agent, and not with a view to the sale
or distribution of any part thereof, and the undersigned has no present
intention of selling, granting participation in or otherwise distributing the
same, but subject, nevertheless, to any requirement of law that the disposition
of its property shall at all times be within its control. By executing this
Statement, the undersigned further represents that it does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer, or grant participations to such person or to any third person, with
respect to any Securities issuable upon exercise of this warrant.
(b) The undersigned understands that the Securities issuable upon exercise of
the Warrant at the time of issuance may not be registered under the Securities
Act of 1933, as amended (the "Act"), and applicable state securities laws, on
the ground that the issuance of such securities is exempt pursuant to Section
4(2) of the Act and state law exemptions relating to offers and sales not by
means of a public offering, and that the Company's reliance on such exemptions
is predicated on the undersigned's representations set forth herein.
(c) The undersigned agrees that in no event will it make a disposition of any
Securities acquired upon the exercise of the Warrant unless and until it shall
have furnished the Company with an opinion of counsel satisfactory to the
Company and Company's counsel to the effect that (A) appropriate action
necessary for compliance with the Act and any applicable state securities laws
has been taken or an exemption from the registration requirements of the Act and
such laws is available, and (B) that the proposed transfer will not violate any
of said laws
(d) The undersigned acknowledges that an investment in the Company is highly
speculative and represents that it is able to fend for itself in the
transactions contemplated by this Statement, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investments, and has the ability to bear the economic risks
(including the risk of a total loss) of its investment. The undersigned
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
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(e) The undersigned acknowledges that the Securities issuable upon exercise of
the Warrant must be held indefinitely unless subsequently registered under the
Act or an exemption from such registration is available. The undersigned is
aware of the provisions of Rule 144 promulgated under the Act which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than one year after
a party has purchased and paid for the security to be sold, the sale being
through a "broker's transaction" or in transactions directly with "market
makers" (as provided by Rule 144(f)) and the number of shares being sold during
any three-month period not exceeding specified limitations.
Dated:
-------------------------
--------------------------------
(Signature)
--------------------------------
(Typed or Printed Name)
--------------------------------
(Title)
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Attachment 3
NOTICE OF CASHLESS EXERCISE
TO. Spatialight, Inc.
1. The undersigned hereby elects to acquire ________________ shares of the
Common Stock of Spatialight, Inc., pursuant to the terms of the attached
Warrant, by conversion of ___________ percent (___%) of the Warrant.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below.
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(Name)
----------------------------------
(Address)
----------------------------------
(Name of Warrant Holder)
----------------------------------
(Date)
By:
-------------------------------
Title:
----------------------------
(Name of purchaser, and title and
signature of authorized person)
