1
EXHIBIT 4.5
THIS WARRANT AND THE COMMON STOCK OF WORLD COMMERCE ONLINE, INC., (THE
"COMPANY") ISSUABLE UPON CONVERSION HEREOF (UNTIL SUCH TIME AS SUCH COMMON STOCK
IS REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES STATUTE, AND NO SALE, TRANSFER,
OR OTHER DISPOSITION OF ANY INTEREST HEREIN MAY BE MADE UNLESS, IN THE WRITTEN
OPINION OF COUNSEL TO THE COMPANY, SUCH TRANSFER WOULD NOT VIOLATE OR REQUIRE
REGISTRATION UNDER ANY SUCH STATUTE.
WARRANT
To Purchase Common Stock of
WORLD COMMERCE ONLINE, INC.
This is to certify that for value received, NOVELLE CONSULTING, L.L.C.
(together with its successors and permitted assigns, "Holder"), is entitled to
purchase from World Commerce Online, Inc., a Delaware corporation (the
"Company"), at any time and from time to time beginning April 22, 1999 and
ending at 5 P.M. local time at the place where the Warrant Office hereinafter
referred to is located on or before April 21, 2003, 250,000 duly authorized,
validly issued, fully paid and nonassessable shares of common stock, par value
$.001 per share, of the Company ("Common Stock"), at the Current Warrant Price
in lawful money of the United States of America. The purchase price hereunder at
any time of a single share of Common Stock is referred to herein as the "Current
Warrant Price." Initially, and until adjustment in the manner hereinafter
provided, the Current Warrant Price with respect to such 250,000 shares shall be
$12.38 per share. The number of shares of Common Stock purchasable hereunder and
the Current Warrant Price are subject to adjustment from time to time in the
manner provided in Article 4 below. Certain terms in this Warrant are defined in
Article 5 below.
ARTICLE 1
EXERCISE OF WARRANTS
SECTION 1.1. METHOD OF EXERCISE. Subject to the provisions of Article 3
below, to exercise this Warrant in whole or in part, the Holder shall deliver to
the Company at the Warrant Office designated pursuant to Section 2.1: (i) a
written notice, in substantially the form of the Subscription Notice appearing
at the end of this Warrant, of such Holder's election to exercise this Warrant,
which notice shall specify the number of shares of Common Stock to be purchased
and the nature of payment, whether by check or by this Warrant (pursuant to
Section 1.4) or by a combination thereof; (ii) a certified or official bank
check payable to the order of the Company and/or a cancellation of a number of
warrants (pursuant to Section 1.4) (and/or any other form of consideration which
the Company and the holder hereof may have agreed to accept in payment of the
Current Warrant Price) in the aggregate equal to the aggregate Current Warrant
Price of the number of shares of Common Stock being purchased; and (iii) this
Warrant. The Company shall as promptly as practicable, and in any event within
10 days after receipt by the Company of such notice, execute and deliver or
cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said notice. The stock certificate or certificates so
delivered shall be in the denomination as may be specified in said notice and
shall be issued in the name of such holder or such other name as shall be
designated in said notice. Such certificate or certificates shall be deemed to
have been issued and such holder or any other person so designated to be named
2
therein shall be deemed for all purposes to have become a holder of record of
such shares as of the date the consideration specified for such shares is
received by the Company as aforesaid. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of said certificate or
certificates, deliver to such holder a new Warrant evidencing the rights of such
holder to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of such holder, appropriate notation may be made on
this Warrant and the same returned to such holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issuance and delivery of such stock certificates and any new Warrant, except
that, in case such stock certificates or new Warrant shall be registered in a
name or names other than the name of the holder of this Warrant, funds
sufficient to pay all stock transfer taxes which shall be payable upon the
issuance of such stock certificate or certificates or any new Warrant shall be
paid by the holder hereof at the time of delivering the notice of exercise
mentioned above or promptly upon receipt of a written request of the Company for
payment of the same.
SECTION 1.2. WARRANT SHARES TO BE FULLY PAID AND NONASSESSABLE. All
shares of Common Stock issued upon the exercise of this Warrant shall be validly
issued, fully paid and nonassessable and, if the Common Stock is then listed on
a securities exchange, shall be duly listed thereon, subject to registration
under the Exchange Act.
SECTION 1.3. NO FRACTIONAL SHARES TO BE ISSUED. The Company shall not
be required upon any exercise of this Warrant to issue a certificate
representing any fraction of a share of Common Stock, but, in lieu thereof,
shall pay Holder cash in an amount equal to a corresponding fraction (calculated
to the nearest 1/100 of a share) of the Current Warrant Price of one share of
Common Stock as of the date of receipt by the Company of notice of exercise of
this Warrant.
SECTION 1.4. LEGEND ON WARRANT SHARES. Each certificate for shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Act, shall bear a legend in
substantially the following form (and any additional legend required by any
securities exchange upon which such Warrant Shares may, at the time of such
exercise, be listed) on the face thereof:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the laws of any
state and may not be sold or otherwise transferred except pursuant to an
effective registration statement or the written opinion of counsel to World
Commerce Online, Inc., that such registration is not required.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of: (i) a public distribution pursuant to a registration statement; or (ii) an
exempt sale pursuant to Rule 144 or Rule 144A under the Act of the securities
represented thereby) shall also bear such legend.
ARTICLE 2
WARRANT OFFICE; OWNERSHIP, TRANSFER
OF WARRANT
SECTION 2.1. WARRANT OFFICE. The Company shall maintain an office for
certain purposes specified herein (the "Warrant Office"), which office shall
initially be the Company's office at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, and may subsequently be such other office of the Company or of any
-2-
3
transfer agent of the Common Stock in the continental United States as to which
written notice has previously been given to all of the Warrantholders.
SECTION 2.2. OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is initially 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 evidence satisfactory to the
Company that this Warrant has been transferred as provided in Section 2.3.
SECTION 2.3. TRANSFER OF WARRANT. This Warrant and all rights hereunder
may be alienated, assigned, pledged or otherwise transferred, in whole or in
part.
ARTICLE 3
ANTI-DILUTION PROVISIONS
SECTION 3.1. ADJUSTMENT OF CURRENT WARRANT PRICE AND NUMBER OF SHARES
PURCHASABLE. The Current Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall be subject to adjustment
from time to time as hereinafter provided in this Article 3. Upon each
adjustment of the Current Warrant Price, the holder of this Warrant shall
thereafter be entitled to purchase at the Current Warrant Price resulting from
such adjustment, the number of shares (calculated to the nearest whole share) of
Common Stock calculated by multiplying the Current Warrant Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Current Warrant Price resulting from such adjustment.
SECTION 3.2. EFFECT OF "SPLIT-UPS" AND STOCK DIVIDENDS. In case at any
time or from time to time the Company shall subdivide or combine as a whole, by
reclassification, by the issuance of a stock dividend on the Common Stock
payable in Common Stock, or otherwise, the number of shares of Common Stock then
outstanding into a greater or lesser number of shares of Common Stock, with or
without par value, the Current Warrant Price shall be reduced or increased (as
applicable) proportionately. The issuance of such a stock dividend shall be
treated as a subdivision of the whole number of shares of Common Stock
outstanding immediately prior to such dividend into a number of shares equal to
such whole number of shares so outstanding plus the number of shares issued as a
stock dividend. Upon any such adjustment, the number of shares shall be rounded
upward to the nearest whole share.
ARTICLE 4
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"ACT": the Securities Act of 1933, as amended from time to time, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"COMMISSION": the Securities and Exchange Commission, or any other
federal agency then administering the Act.
-3-
4
"CURRENT WARRANT PRICE": (per share of Common Stock at any date): the
price at which one share of Common Stock may be purchased hereunder at any time.
The Current Warrant Price is subject to adjustment from time to time pursuant to
Article 3 above.
"CURRENT MARKET PRICE": the "Closing Price" (as defined below) of the
Common Stock on the last business day immediately preceding any date of
reference. For the purpose of determining Current Market Price, the "Closing
Price" of the Common Stock on any business day shall be: (i) if the Common Stock
is listed or admitted for trading on any United States national securities
exchange, the last reported sale price of Common Stock on such exchange; (ii) if
the Common Stock is listed or admitted for trading on any tier of The Nasdaq
Stock Market, the last reported sale price of Common Stock on such tier; or
(iii) if the Common Stock is traded in the over-the-counter market, the average
of the closing bid and asked prices for the Common Stock as quoted on the OTC
Bulletin Board.
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended from
time to time, or any successor federal statute, and the rules and regulations of
the Commission thereunder.
"OUTSTANDING": when used with reference to Common Stock at any date,
all issued shares of Common Stock (including, but without duplication, shares
deemed issued pursuant to Article 3 above) at such date, except shares then held
in the treasury of the Company.
"PERSON": an individual, corporation, partnership, joint venture, trust
estate, unincorporated organization or government or an agency or political
subdivision thereof.
"TOTAL WARRANTS": the sum of the aggregate number of shares of: (i)
Common Stock purchasable by the holder(s) upon exercise of the Warrant then
outstanding; and (ii) Warrant Shares which had been issued pursuant to the
exercise the Warrant.
"WARRANT OFFICE": see Section 2.1 above.
"WARRANT SHARES": the shares of Common Stock purchasable or purchased
by the Warrantholder upon the exercise of the Warrant.
"WARRANTHOLDER": the registered holder of the Warrant or any related
Warrant Shares.
"WARRANT": the warrant issued by the Company hereunder evidencing the
right to purchase an aggregate of 250,000 shares of Common Stock and all
warrants issued in substitution or subdivision hereof.
ARTICLE 5
CERTAIN COVENANTS OF THE COMPANY
The Company represents, warrants, covenants and agrees that:
(a) it will reserve and set apart and have at all times, free
from preemptive rights, a number of shares of authorized but unissued Common
Stock or other securities or property deliverable upon the exercise of this
Warrant sufficient to enable it at any time to fulfill all its obligations
thereunder;
-4-
5
(b) before taking any action which would cause an adjustment
reducing the Current Warrant Price below the then par value of the shares of
Common Stock issuable upon exercise of this Warrant, it will take any corporate
action which may be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of such Common Stock at such adjusted
Current Warrant Price;
(c) if any shares of Common Stock required to be reserved for
the purposes of the exercise of this Warrant require registration with or
approval of any governmental authority under any federal law (other than the
Act) or under any state law before such shares may be issued upon exercise of
this Warrant, the Company will, at its expense, as expeditiously as possible,
cause such shares to be duly registered or approved, as the case may be;
(d) this Warrant shall be binding upon any corporation
succeeding to the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets.
ARTICLE 6
CERTAIN COVENANTS OF THE HOLDER
The Holder represents, warrants, covenants and agrees that:
(a) this transaction is exempt from the Act and, accordingly
neither the Warrant nor the Warrant Shares have been registered under the Act;
they are acquiring the Warrant and Warrant Shares for investment purposes only
and not with a view to or for resale in connection with any distribution of the
Warrant or Warrant Shares, nor with any present intention of distribution
(within the meaning of the Act) of the Warrant or Warrant Shares; because the
Warrant and Warrant Shares will not have been registered under the Act, the
Company will not permit the transfer of such shares without registration under
the Act, or upon the issuance to the Company of a favorable opinion of its
counsel to the effect that such transfer, whether pursuant to Rule 144 of the
Act or otherwise, shall not be in violation of the Act, and any applicable state
security laws; and the share certificates representing the Warrant Shares will
be issued with a restrictive legend providing notice of such restriction;
(b) Holder has had an opportunity to ask questions of, and
receive answers from, appropriate officers and representatives of the Company
concerning the terms and conditions of the issuance of this Warrant and the
Warrant Shares and to obtain any additional information concerning the Company
which they have requested; and
(c) the Company has made available for inspection by them
various documents connected with the Company's business and has not refused in
any way to permit them to inspect any document requested to be inspected by
them.
ARTICLE 7
NOTICE
Any notice or other document required to be given or delivered to the
Warrantholder shall be delivered at, or sent by certified or registered mail to
Holder at the last address shown on the books of the Company maintained at the
Warrant Office for the registration of the Warrants or at any more recent
address of which Warrantholder shall have notified the Company in writing. Any
notice or other document required or permitted to be given or delivered to
holders of record of outstanding Warrant Shares shall be delivered at, or sent
-5-
6
by certified or registered mail to, each such holder at such holder's address as
the same appears on the stock records of the Company. Any notice or other
document required or permitted to be given or delivered to the Company, other
than such notice or documents required to be delivered to the Warrant Office,
shall be delivered at, or sent by certified or registered mail to, the office of
the Company at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or such other
address within the United States of America as shall have been furnished by the
Company to the Warrantholders and the holders of record of Warrant Shares. Any
notice or other document sent by certified or registered mail, return receipt
requested, shall be deemed to have been delivered and received when sent if the
receipt is appropriately completed and returned. Notices or documents delivered
in any other manner than as set forth above shall be deemed to have been
delivered only when and if received.
ARTICLE 8
LIMITATIONS OF LIABILITY;
NOT STOCKHOLDERS
No provision of this Warrant shall be construed as conferring upon the
holder hereof the right to vote, consent, receive dividends or receive notice
other than as herein expressly provided in respect of meetings of stockholders
for the election of directors of the Company or any other matter whatsoever as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the purchase price of any Warrant
Shares or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
ARTICLE 9
LOSS, DESTRUCTION, ETC. OF WARRANTS
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of any Warrant, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of the Warrant, the Company will
make and deliver a new Warrant, of like tenor, in lieu of such lost, stolen,
destroyed or mutilated Warrant. Any Warrant issued under the provisions of this
Article 9 in lieu of any Warrant alleged to be lost, destroyed or stolen, or in
lieu of any mutilated Warrant, shall constitute an original contractual
obligation on the part of the Company.
ARTICLE 10
LAW GOVERNING
This Warrant shall be governed by, and construed and enforced in
accordance with, the law of the State of Florida, without reference to its
choice of law principles.
-6-
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name effective as of the 22nd day of April 1999.
WORLD COMMERCE ONLINE, INC.
By: /s/ XXXXXX XXXX
----------------------------------------
Xxxxxx Xxxx
President and Chief Executive Officer
-7-
8
SUBSCRIPTION NOTICE
World Commerce Online, Inc.
The undersigned, the holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented by said Warrant for, and to purchase
thereunder, _______ shares of the Common Stock covered by said Warrant and (a)
herewith (1) makes payment in full therefor of $___________ by certified or
official bank check payable to the order of the Company, or (2) surrenders to
the Company that number of warrants required for full payment of the shares to
be purchased; and (b) requests (1) that certificates for such shares (and any
securities or other property issuable upon such exercise) be issued in the name
of and delivered to _______________________________, whose address is
________________________________ and (2) if such shares shall not include all of
the shares issuable as provided in said Warrant, that a new Warrant of like
tenor and date for the balance of the shares issuable thereunder be delivered to
the undersigned.
-------------------------------
Signature Guaranteed:
Dated:
-------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________ the rights represented by the foregoing Warrant of World
Commerce Online, Inc. and appoints ______________________________ attorney to
transfer said rights on the books of said corporation, with full power of
substitution in the premises.
-------------------------------
Signature Guaranteed:
Dated:
-------------------------
