Exhibit 4.3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH
RESPECT THERETO.
SERIES D PREFERRED STOCK PURCHASE WARRANT
Warrant No. PD-__ Number of Shares _________
GREENWICH TECHNOLOGY PARTNERS, INC.
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Void after February 1, 2004
1. Issuance. This Warrant is issued to ____________________, by Greenwich
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Technology Partners, Inc., a Delaware corporation (hereinafter with its
successors called the "Company").
2. Purchase Price; Number of Shares. Subject to the terms and conditions
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hereinafter set forth, the registered holder of this Warrant (the "Holder"),
commencing on the Vesting Date set forth in Section 21 hereof, shall be entitled
upon surrender of this Warrant with the subscription form annexed hereto duly
executed, at the office of the Company at 00 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX
00000, or such other office as the Company shall notify the Holder of in
writing, to purchase from the Company at a price per share (the "Purchase
Price") of $1.17, __________ fully paid and nonassessable shares of Series D
Preferred Stock, $.01 par value per share, of the Company (the "Series D
Preferred Stock") or such lesser amount as determined pursuant to Section 21
hereof. Until such time as this Warrant is exercised in full or expires, the
Purchase Price and the securities issuable upon exercise of this Warrant are
subject to adjustment as hereinafter provided. THIS WARRANT SHALL ONLY BECOME
EXERCISABLE WHEN THE VESTING DATE OCCURS AND TO THE EXTENT PROVIDED IN SECTION
21 HEREOF.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in cash
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or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so
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surrendered being credited against the Purchase Price in an amount equal to the
principal amount thereof plus accrued interest to the date of surrender, (iii)
through delivery by the Holder to the Company of other securities issued by the
Company, with such securities being credited against the Purchase Price in an
amount equal to the fair market value thereof, as determined in good faith by
the Board of Directors of the Company (the "Board"), or (iv) by any combination
of the foregoing. The Board shall promptly respond in writing to an inquiry by
the Holder as to the fair market value of any securities the Holder may wish to
deliver to the Company pursuant to clause (iii) above.
4. Net Issue Election. The Holder may elect to receive, without the
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payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Holder such number of fully paid and nonassessable shares of Series D
Preferred Stock as is computed using the following formula:
X = Y (A-B)
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A
where
X = the number of shares to be issued to the Holder pursuant to this
Section 4.
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Section 4.
A = the Fair Market Value (as defined below) of one share of Series D
Preferred Stock.
B = the Purchase Price in effect under this Warrant at the time the
net issue election is made pursuant to this Section 4.
"Fair Market Value" of one share of Series D Preferred Stock shall mean:
(a) if the Warrant is being exercised in connection with or subsequent
to a transaction specified in Section 10 hereof, the value of the consideration
(determined, in the case of noncash consideration, in good faith by the Board of
Directors of the Company) to be received pursuant to such transaction by the
holder of one share of Series D Preferred Stock;
(b) if the Warrant is being exercised in connection with the IPO (as
defined in Section 21(A)(i), the initial public offering price (before deducting
commissions, discounts or expenses) at which the Common Stock is sold in such
IPO;
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(c) if the Warrant is being exercised after the occurrence of the IPO:
(i) if the Company's Common Stock is traded on an exchange or is
quoted on the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") National Market System, the average of the closing or last
sale price reported for the five (5) business days immediately preceding the
date that the Net Issue Election Notice is delivered to the Company;
(ii) if the Company's Common Stock is not traded on an exchange
or on the NASDAQ National Market System, but is traded in the over-the-counter
market, the mean of the closing bid and asked prices reported for the five (5)
business days immediately preceding the date that the Net Issue Election Notice
is delivered to the Company; and
(d) in all other cases, the fair value as determined in good faith by
the Company's Board of Directors.
The Board shall promptly respond in writing to an inquiry by the Holder as
to the fair market value of one share of Series D Preferred Stock.
5. Partial Exercise. This Warrant may be exercised in part, and the
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Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. Issuance Date. The person or persons in whose name or names any
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certificate representing shares of Series D Preferred Stock is issued hereunder
shall be deemed to have become the holder of record of the shares represented
thereby as at the close of business on the date this Warrant is exercised with
respect to such shares, whether or not the transfer books of the Company shall
be closed.
7. Expiration Date; Automatic Exercise. Subject to earlier expiration
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pursuant to Section 21 hereof, this Warrant shall expire at the close of
business on February 1, 2004, and shall be void thereafter.
8. Reserved Shares; Valid Issuance. The Company covenants that it will at
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all times from and after the date hereof reserve and keep available such number
of its authorized shares of Series D Preferred Stock and Common Stock, $.01 par
value per share (the "Common Stock"), free from all preemptive or similar rights
therein, as will be sufficient to permit, respectively, the exercise of this
Warrant in full and the conversion into shares of Common Stock all shares of
Series D Preferred Stock receivable upon such exercise. The Company further
covenants that such shares as may be issued pursuant to such exercise and
conversion will, upon issuance, be duly and validly issued, fully paid and
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nonassessable and free from all taxes, liens and charges with respect to the
issuance thereof.
9. Stock Dividends. If after the Original Issue Date (as defined in
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Section 14 hereof) the Company shall subdivide the Series D Preferred Stock, by
split-up or otherwise, or combine the Series D Preferred Stock, or issue
additional shares of Series D Preferred Stock in payment of a stock dividend on
the Series D Preferred Stock, the number of shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination.
10. Mergers and Reclassifications. If after the Original Issue Date there
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shall be any reclassification, capital reorganization, automatic conversion
pursuant to Section 5(m) of Article 4 of the Company's Second Amended and
Restated Certificate of Incorporation, or other change of the Series D Preferred
Stock (other than as a result of a subdivision, combination or stock dividend
provided for in Section 9 hereof), or any consolidation of the Company with, or
merger of the Company into, another corporation or other business organization
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
outstanding Series D Preferred Stock), or any sale or conveyance to another
corporation or other business organization of all or substantially all of the
assets of the Company, then, as a condition of such reclassification, capital
reorganization, automatic conversion, change, consolidation, merger, sale or
conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Warrant in
full, the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, capital reorganization, automatic
conversion, change, consolidation, merger, sale or conveyance by a holder of the
number of shares of Series D Preferred Stock which might have been purchased by
the Holder immediately prior to such reclassification, capital reorganization,
automatic conversion, change, consolidation, merger, sale or conveyance (or, if
there are no holders of Series D Preferred Stock at such time, by a holder of
the number of shares of Common Stock which might have been acquired by the
Holder immediately prior to such reclassification, capital reorganization,
automatic conversion, change, consolidation, merger, sale or conveyance upon the
exercise of this Warrant in full and the conversion into shares of Common Stock
of all shares of Series D Preferred Stock receivable upon such exercise), and in
any such case appropriate provisions shall be made with respect to the rights
and interest of the Holder to the end that the provisions hereof (including
without limitation, provisions for the adjustment of the Purchase Price and the
number of shares issuable hereunder) shall thereafter be applicable in relation
to any shares of stock or other securities and property thereafter deliverable
upon exercise hereof.
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11. Fractional Shares. In no event shall any fractional share of Series D
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Preferred Stock be issued upon any exercise of this Warrant. If, upon exercise
of this Warrant as an entirety, the Holder would, except as provided in this
Section 11, be entitled to receive a fractional share of Series D Preferred
Stock, then the Company shall issue the next higher number of full shares of
Series D Preferred Stock, issuing a full share with respect to such fractional
share.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
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as herein provided, the Company shall promptly deliver to the Holder a
certificate setting forth the Purchase Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
13. Notices of Record Date, Etc. In the event of:
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(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the Company, or
sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
14. Other Warrants. This Warrant is one of a series of warrants
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(collectively, the "Warrants") originally issued by the Company on February 1,
1999 (the "Original Issue Date") pursuant to an Investment Agreement, dated
February 1, 1999, by and among the Company and the other parties thereto (the
"Investment Agreement").
15. Amendment. The terms of this Warrant may be amended, modified or
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waived only with the written consent of the Company and the holders of Warrants
representing at least a majority of the number of shares of Series D Preferred
Stock then issuable upon the exercise of the Warrants.
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16. Warrant Register; Transfers, Etc.
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A. The Company will maintain a register containing the names and
addresses of the registered holder of the Warrants. The Holder may change its
address as shown on the warrant register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
B. This Warrant may not be transferred or assigned by the Holder.
C. In case this Warrant shall be mutilated, lost, stolen or destroyed,
the Company shall issue a new warrant of like tenor and denomination and deliver
the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company.
D. The holder hereof has no rights as a shareholder with respect to
this Warrant until such time as the holder hereof has exercised this Warrant by
delivery of the notice of exercise and has paid in full the Purchase Price for
the number of shares of Series D Preferred Stock for which this Warrant is to be
so exercised.
17. No Impairment. The Company will not, by amendment of its Second
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Amended and Restated Certificate of Incorporation or through any
reclassification, capital reorganization, consolidation, merger, sale or
conveyance of assets, dissolution, liquidation, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the Holder.
18. Governing Law. The provisions and terms of this Warrant shall be
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governed by and construed in accordance with the internal laws of the State of
Delaware.
19. Successors and Assigns. This Warrant shall be binding upon the
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Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
20. Business Days. If the last or appointed day for the taking of any
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action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Connecticut, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
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21. Vesting Date.
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A. The term "Vesting Date" shall mean the date immediately preceding
the effective date of the earliest to occur of: (i) a firmly underwritten public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock for the
account of the Company (the "IPO"); (ii) any consolidation or merger of the
Company with or into any other corporation or other entity or person, or any
other corporate reorganization, in which the Company shall not be the continuing
or surviving entity of such consolidation, merger or reorganization and the
holders of the Company's outstanding capital stock immediately preceding such
event own less than fifty percent (50%) of the outstanding capital stock of the
surviving corporation or any transaction or series of related transactions by
the Company in which in excess of fifty percent (50%) of the Company's voting
power is transferred; (iii) a sale, lease or other disposition of all or
substantially all of the assets of the Company; and (iv) January 1, 2001.
B. (i) Subject to the vesting restrictions and partial termination
events set forth in clause (ii) below, this Warrant shall vest and become fully
exercisable as of the Vesting Date and remain exercisable up to and until
expiration as provided in Section 7 hereof.
(ii) If, as of the Vesting Date, VantagePoint Communications
Partners, LP, and VantagePoint Venture Partners 1996, LP, or any transferee
therefrom, receive, have received or are contractually obligated to receive, in
the aggregate, cash or securities as consideration for the sale or exchange of
their Series D Preferred Stock (or the shares of Common Stock issued to such
shareholders upon conversion of their Series D Preferred Stock) purchased by
VantagePoint Communications Partners, LP and VantagePoint Venture Partners 1996,
LP pursuant to the Investment Agreement, with a value equal to at least
$20,000,000 (with such value to be determined in accordance with the applicable
agreement governing such sale or exchange) or, if as of the Vesting Date, if
such Vesting Date occurs concurrently with the IPO, the price per share of
Common Stock of the Company as sold to the public in the IPO is equal to at
least $4.68 (as adjusted for combinations, stock dividends, subdivisions or
split-ups) then: (a) if the Vesting Date occurs on or before June 30, 2000, the
holder shall only be permitted to exercise this Warrant pursuant to its terms
for fifty percent (50%) of the total number of shares of Series D Preferred
Stock subject hereto on and after the Vesting Date and the remaining fifty
percent (50%) of shares of Series D Preferred Stock subject hereto shall
immediately terminate and be of no further force or effect and the Company shall
have no obligation to issue shares of Series D Preferred Stock or any other
capital stock of the Company at any time with respect to such remaining fifty
percent (50%); and (b) if the Vesting Date occurs subsequent to June 30, 2000
and on or before December 31, 2000, the holder shall only be permitted to
exercise this Warrant pursuant to its terms for sixty percent (60%) of the total
number of shares of Series D Preferred Stock subject hereto on or after the
Vesting Date and the remaining forty percent (40%) of shares of Series D
Preferred Stock subject hereto shall immediately terminate and be of no further
force or
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effect and the Company shall have no obligation to issue shares of
Series D Preferred Stock or any other capital stock of the Company at any time
with respect to such remaining forty percent (40%).
22. Registration Rights. The shares of Common Stock issuable upon
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conversion of the shares of Series D Preferred Stock issuable upon exercise of
this Warrant shall be entitled to registration rights pursuant to the
Registration Rights Agreement dated February 1, 1999 by and among the Company
and the other parties named therein.
Dated: February 1, 1999 GREENWICH TECHNOLOGY
PARTNERS, INC.
By:________________________________
Attest: Title:_____________________________
___________________________
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SUBSCRIPTION
To:____________________ Date:_________________________
The undersigned hereby subscribes for __________ shares of Series D
Preferred Stock covered by this Warrant. The certificate(s) for such shares
shall be issued in the name of the undersigned or as otherwise indicated below:
________________________________________
Signature
________________________________________
Name for Registration
________________________________________
Mailing Address
NET ISSUE ELECTION NOTICE
To:____________________ Date:_________________________
The undersigned hereby elects under Section 4 to surrender the right
to purchase _______ shares of Series D Preferred Stock pursuant to this Warrant.
The certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
________________________________________
Signature
________________________________________
Name for Registration
________________________________________
Mailing Address
