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EXHIBIT 10.10
THIS WARRANT AND THE WARRANT SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW AND
MAY NOT BE OFFERED, SOLD OR TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO
REGISTERED OR AN EXEMPTION THEREFROM IS AVAILABLE.
THE WARRANT SHARES ARE ALSO SUBJECT TO THE PROVISIONS OF A CERTAIN WARRANT
PURCHASE AGREEMENT DATED AS OF THE DATE HEREOF, INCLUDING CERTAIN RESTRICTIONS
ON TRANSFER SET FORTH THEREIN. A COMPLETE AND CORRECT COPY OF SUCH AGREEMENT IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Date of Issuance: November 25, 1997
WARRANT
TO PURCHASE SERIES A COMMON STOCK OF
THE EDISON PROJECT INC
THIS CERTIFIES that for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, BANKBOSTON, N.A. or its
successors or assigns (herein called the "Holder"), is entitled to purchase from
THE EDISON PROJECT INC., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), at any time after the date hereof
until 5:00 p.m. (Eastern time) on November 25, 2007 (the "Expiration Time"),
129,504 shares of Series A Common Stock, par value $.01 per share ("Series A
Common Stock"), of the Company for an exercise price of $2.50 per share. This
Warrant and the Warrant Shares are being or will be issued pursuant to, and are
subject to the terms and provisions of, that certain Warrant Purchase Agreement
of even date herewith between the Company and the Holder (the "Agreement"). The
number of shares of Common Stock purchasable hereunder and the Exercise Price
shall be subject to adjustment as set forth below.
Section 1. Definitions. As used herein:
"Business Day" means any day on which national banks are open for
business, or the Warrant Shares are registered under the Securities Act, then
any day on which the principal national securities exchange or market on which
the Warrant Shares is listed or admitted to trading is open for business.
"Common Stock" means the (i) Series A Common Stock and (ii) any other
stock of any class or classes of the Company authorized after the date hereof,
the holders of which shall have the right, without limitation as to amount,
either to all or a share of the balance of current dividends and liquidating
dividends or other similar distributions
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declared by the Company on any shares of the Company's issued and outstanding
preferred stock after the payment of such dividends, liquidating dividends or
similar distributions to all applicable holders of preferred stock, provided,
that in no event shall "Common Stock" include any classes or series of preferred
stock of the Company.
"Convertible Securities" means securities or obligations that are
exercisable for, convertible into or exchangeable for shares of Common Stock.
The term includes options, warrants or other rights to subscribe for or purchase
Common Stock or to subscribe for or purchase other Convertible Securities.
"Exercise Form" means the Exercise Form attached hereto.
"Exercise Price" means the price per share at which shares of Common
Stock of the Company are purchasable hereunder, as such price may be adjusted
from time to time as provided herein.
"Expiration Time" has the meaning assigned to it in the opening
paragraph of this Warrant.
"Holder" means the holder or holders of the Warrants and/or the Warrant
Shares.
"GAAP" means generally accepted accounting principles, consistently
applied.
"Market Price" of a Warrant share means:
(a) if the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for trading
on the NASDAQ National Market System, the Market Price shall be the last
reported sale price of the Common Stock on such exchange or system on the last
Business Day prior to the date of the exercise of this Warrant giving rise to
the determination of the Market Price, or if no such sale is made on such day,
the average of the closing bid and asked prices of the Common Stock for such day
on such exchange or system; or
(b) if the Common Stock is not so listed or admitted to unlisted
trading privileges, the Market Price shall be the mean of the last reported bid
and asked prices reported by the National Quotation Bureau, Inc., on the last
Business Day prior to the date of the exercise of this Warrant giving rise to
the determination of the Market Price, or
(c) if the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the Market
Price shall be, as of the date of the exercise of this Warrant giving rise to
the determination of the Market Price, the fair salable value per share of
Common Stock reasonably determined in good faith by the Board of Directors of
the Company without giving effect to the discount for
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(i) a minority interest or (ii) any lack of liquidity of the Common Stock, but
after giving effect to the exercise of this Warrant. Whenever the Board of
Directors of the Company shall make a determination of the Market Value of
Warrant Shares under this paragraph (c), such determination may be challenged in
good faith by the Holder, and any dispute shall be resolved by an investment
banking firm of recognized national standing selected by the Company and
acceptable to the Holder, the expenses of such firm to be shared equally by the
Company and the Holder.
"Partnership" means The Edison Project L.P.
"Principal Office" has the meaning given to such term in Section 2(a).
"Purchase Price" means, for any exercise of this Warrant, the product
of the Exercise Price multiplied by the number of shares of Common Stock to be
purchased upon such exercise of this Warrant.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the United States
Securities and Exchange Commission promulgated thereunder, all as the same shall
be in effect at the time.
"Warrants" means, collectively, this Warrant issued to BankBoston, N.A.
with respect to 129,504 shares of Series A Common Stock and any additional
Warrants as hereafter issued to BankBoston, N.A with respect to Series A Common
Stock.
"Warrant Shares" means shares of Series A Common Stock issued or
issuable upon exercise of this Warrant.
Section 2. Exercise of Warrant.
(a) This Warrant may be exercised in whole or in part on any Business
Day on or before the Expiration Time by presentation and surrender hereof to the
Company at its principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at such other address as the Company may hereafter notify the
Holder in writing (the "Principal Office"), with the Exercise Form annexed
hereto as Exhibit A duly executed and accompanied by proper payment of the
Purchase Price in lawful money of the United States of America in the form of a
check, subject to collection, or by wire transfer of immediately available
funds, for the number of shares of Common Stock specified in the Exercise Form.
If this Warrant shall be exercised in part only, the Company shall, upon
surrender of this Warrant, execute and deliver a new Warrant evidencing the
right of the Holder to purchase the balance of the shares of Common Stock
purchasable hereunder. Upon receipt by the Company of this Warrant and such
Exercise Form, together with proper payment of the Purchase Price, at such
office, the Holder shall be deemed to be the holder of record of the shares of
Common Stock, notwithstanding that
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the stock transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then have been
actually delivered to the Holder. The Company shall pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of the shares of Common Stock, provided, that the Company shall not be
required to pay any tax that may be payable in respect of any transfer involved
in the issuance and delivery of any certificates for shares of Common Stock
registered in a name other than that of the Holder.
(b) In addition to the rights of the Holder under subsection (a) of
this Section 2, the Holder shall have the right, upon its written request, to
exercise this Warrant in whole or in part by instructing the Company to reduce
the number of shares of Common Stock thereafter eligible to be purchased
hereunder in accordance with the following formula in lieu of paying the
Purchase Price in accordance with subsection (a) of this Section 2:
P
N = -----------------------------
M
where:
N = number of shares of Series A Common Stock to be
subtracted from remaining number of Warrant Shares
that may be acquired upon exercise of this Warrant
P = aggregate Purchase Price payable for all of the
Warrant Shares upon exercise of this Warrant
M = Market Price per Warrant Share on the date of
exercise of this Warrant
(c) The right to exercise this Warrant shall not be suspended during
any period that the stock transfer books of the Company for its Series A Common
Stock may be closed.
Section 3. Exchange; Transfer.
(a) This Warrant is exchangeable, upon its surrender by the Holder to
the Company at its Principal Office, for new Warrants of like tenor registered
in the Holder's name and representing in the aggregate the right to purchase the
same number of shares purchasable hereunder, each of such new Warrants to
represent the right to purchase such number of shares as shall be designated by
the Holder at the time of such surrender.
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(b) Subject to subsection (c), this Warrant is transferable, in whole
or in part, at the Principal Office by the Holder hereof, in person or by its
duly authorized attorney, upon presentation of this Warrant, properly endorsed,
for transfer. In the event of a partial transfer, new Warrants of like tenor
shall be issued to each party for the portion to which it is then entitled.
(c) This Warrant and the Warrant Shares may be transferred only in
compliance with the Agreement and applicable federal and state securities laws,
and the Company shall have the right to require evidence of such compliance
reasonably satisfactory to it as a condition of registering or otherwise giving
effect to any transfer of this Warrant or any of the Warrant Shares.
Notwithstanding the foregoing, in no event will the Holder make a disposition of
any of its rights to acquire the Warrant Shares unless and until the Holder
shall have provided the Company with (i) written notice of the proposed
disposition, and (ii) if requested by the Company, an opinion of counsel (which
counsel may be inside counsel to the Holder) reasonably satisfactory to the
Company and the Company's counsel to the effect that (A) appropriate action
necessary for compliance with the Securities Act has been taken or (B) an
exemption from the registration requirements of the Securities Act and any state
law is available.
Section 4. Certain Covenants of the Company. The Company covenants and
agrees as follows:
(a) All shares of Series A Common Stock issued upon the exercise of
this Warrant will, upon issuance, be duly and validly issued, fully paid and
non-assessable and free from all taxes, liens and charges;
(b) The Company shall from time to time take all such action as may be
required to assure that the par value, if any, per share of the Series A Common
Stock is at all times not greater than the Exercise Price.
(c) During the period within which this Warrant may be exercised, the
Company will at all times have authorized and reserved for the purpose of
issuance upon exercise of this Warrant a sufficient number of shares of Series A
Common Stock to provide for the exercise hereof in full.
Section 5. Loss, Theft, Destruction or Mutilation. Upon receipt by the
Company of evidence reasonably satisfactory to it of the ownership of and the
loss, theft, destruction or mutilation of this Warrant and (in the case of loss,
theft or destruction) of reasonable indemnity (which in the case of an
institutional Holder shall be an unsecured indemnity agreement) and (in case of
mutilation) upon surrender and cancellation hereof, the Company will execute and
deliver, in lieu hereof, a new warrant of like tenor representing the same
rights as the lost, stolen, destroyed or mutilated Warrant.
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Section 6. Dilution Adjustments. The number of shares of Series A
Common Stock purchasable upon the exercise of each Warrant and the Exercise
Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:
(a) Adjustment for Change in Capital Stock. If at any time after the
date hereof, the Company takes any of the following actions:
(1) pays a dividend or makes a distribution on its Series A
Common Stock in shares of its Series A Common Stock;
(2) subdivides its outstanding shares of Series A Common Stock
into a greater number of shares;
(3) combines its outstanding shares of Series A Common Stock
into a smaller number of shares;
(4) makes a distribution on its Series A Common Stock in
shares of its capital stock other than Series A Common Stock; or
(5) issues by reclassification of its Series A Common Stock
any shares of its capital stock;
then the number of shares of Series A Common Stock purchasable hereunder and the
Exercise Price, as in effect immediately prior to such action, shall be adjusted
so that the Holder may receive upon exercise of this Warrant and payment of the
same aggregate consideration the number of shares of capital stock of the
Company which the Holder would have owned immediately following such action if
the Holder had exercised this Warrant immediately prior to such action. Such
adjustment shall become effective immediately after the record date in the case
of a dividend or distribution and immediately prior to the effective date in the
case of a subdivision, combination or reclassification.
The adjustment contemplated by this Section 6(a) shall be made
successively whenever any such dividend, distribution, payment or loan is made
and shall become effective immediately after the record date for the
determination of shareholders entitled to receive the dividend or distribution
(or, if there is no record date, on the date of the dividend, distribution,
payment or loan). Each adjustment of the Exercise Price shall be made to the
nearest tenth of a cent.
(b) Adjustment for Common Stock Issuances. If at any time after the
Closing Date the Company issues shares of Common Stock (other than in respect of
reasonable issuances of options, warrants or similar rights granted to employees
or management of the Company including, without limitation, the options and
warrants
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set forth on Exhibit C to the Agreement) for a consideration per share less than
the Exercise Price, the Exercise Price shall be reduced (but shall not be less
than $0.01) in accordance with the following formula:
P
---
O + E
E' = E x ----------------------------
O'
where: E' = the adjusted Exercise Price.
E = the Exercise Price in effect immediately
prior to the adjustment.
O = the number of shares of Common Stock
outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration
received by the Company for the
issuance of such additional shares.
O' = the number of shares of Common Stock
outstanding immediately after the issuance
of such additional shares.
The adjustment contemplated by this Section 6(b) shall be made
successively whenever any such issuance occurs, and shall become effective
immediately after such issuance. Each adjustment of the Exercise Price shall be
made to the nearest tenth of a cent.
(c) Adjustment for Convertible Securities Issuance. If at any time
after the date hereof the Company issues any Convertible Securities (other than
in respect of reasonable issuances of options, warrants or similar rights
granted to employees or management of the Company including, without limitation,
the options and warrants set forth on Exhibit C to the Agreement) for an
aggregate consideration that, when added to the aggregate consideration payable
for the number of shares of Common Stock initially deliverable upon conversion,
exchange or exercise of such Convertible
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Securities, is less than the product of such number of shares of Common Stock
and the Exercise Price, the Exercise Price shall be reduced (but shall not be
less than $0.01) in accordance with the following formula:
P
---
O + E
E' = E x --------------------
O + D
where: E' = the adjusted Exercise Price.
E = the Exercise Price in effect
immediately prior to the adjustment.
O = the number of shares of Common
Stock outstanding immediately prior
to the issuance of such Convertible
Securities.
P = the sum of the aggregate
consideration received by the
Company for the issuance of such
Convertible Securities plus the
additional consideration, if any,
payable to the Company upon
conversion, exchange or exercise of
such Convertible Securities at the
initial conversion, exchange or
exercise rate.
D = the maximum number of shares of
deliverable upon conversion,
exchange or exercise of such
Convertible Securities at the
initial conversion, exchange or
exercise rate.
The adjustment contemplated by this Section 6(c) shall be made
successively whenever any such issuance occurs, and shall become effective
immediately after such issuance. Each adjustment of the Exercise Price shall be
made to the nearest tenth of a cent. If all of the Common Stock deliverable upon
conversion, exchange or exercise of such Convertible Securities has not been
issued when such Convertible Securities are no longer outstanding, then the
Exercise Price shall promptly be readjusted to the Exercise Price which would
then be in effect had the adjustment upon the issuance of such securities been
made on the basis or the actual number of shares of Common Stock issued upon
conversion, exchange or exercise of such Convertible Securities.
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(d) Adjustment for Dividends or Distributions. If at any time after the
date hereof, the Company pays any dividend or makes any distribution of any
kind, in cash, property or otherwise (other than in respect of reasonable
issuances of options, warrants or similar rights granted to employees or
management of the Company including, without limitation, the options and
warrants set forth on Exhibit C to the Agreement) to any holder of its Common
Stock, then the Exercise Price following the record date for such dividend or
distribution or, if there is no record date, following the date such dividend,
distribution, payment or loan is made, shall be reduced (but shall not be less
than $0.01) in accordance with the following formula:
(E-F)
-----
E' = E x E
where: E' = the adjusted Exercise Price.
E = the Exercise Price in effect
immediately prior to the adjustment.
F = (1) the sum of (A) the aggregate
fair market value (as conclusively
determined by the board of directors
of the Company in good faith based
on such factors as it believes to be
reasonable, provided, that in the
event such determination is not
reasonably acceptable to a majority
in interest of the Holder(s), the
Company's board of directors and a
representative designated by a
majority in interest of the
Holder(s) shall negotiate the
aggregate fair market value in good
faith; provided, further, that in
the event the Company's board, on
the one hand, and the majority in
interest of the Holder(s), on the
other hand, are unable to mutually
agree on fair market value, then
aggregate fair market value shall be
determined by an independent
investment banking firm satisfactory
to the Holder, engaged by the
Company, the expenses of such firm
to be paid by the Company) on the
record date (or, if there is no
record date, on the date of the
dividend, distribution payment or
loan) of the assets (other than
cash) distributed or paid and (B)
the amount of cash distributed or
paid, divided by (2) the number of
shares of Common Stock outstanding
on the record date for the dividend
or distribution or, if there is no
record date, on the date of the
dividend, distribution, payment or
loan.
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The adjustment shall be made successively whenever any such dividend,
distribution, payment or loan is made and shall become effective immediately
after the record date for the determination of shareholders entitled to receive
the dividend or distribution (or, if there is no record date, on the date of the
dividend, distribution, payment or loan). Each adjustment of the Exercise Price
shall be made to the nearest tenth of a cent.
(e) Adjustment in Number of Warrant Shares. Upon each adjustment in the
Exercise Price pursuant to any provision of this Section, the number of shares
of Series A Common Stock purchasable hereunder shall be adjusted, to the nearest
one hundredth of a whole share, to the product obtained by multiplying such
number of shares purchasable immediately prior to such adjustment in the
Exercise Price by a fraction, the numerator of which shall be the Exercise Price
immediately prior to such adjustment and the denominator or which shall be the
Exercise Price in effect immediately thereafter.
(f) Notice of Certain Actions. In the event that the Company shall take
any of the following actions:
(1) the Company shall authorize the issuance (other than in respect of
any issuances of options, warrants or similar rights granted to employees or
management of the Company provided, that such issuances shall not represent, in
the aggregate, more than five percent (5%) of the outstanding capital stock of
the Company) to holders of its Common Stock of rights, warrants, options or
Convertible Securities to subscribe for or purchase shares of its Common Stock
or of any other subscription rights, warrants, options or Convertible
Securities; or
(2) the Company shall authorize the payment of dividends on or with
respect to any shares of its Common Stock or the distribution to holders of its
Common Stock or any evidences of its indebtedness or assets; or
(3) the Company shall authorize any capital reorganization or
reclassification of the Common Stock or authorize or enter into any contract
providing for any consolidation or merger to which the Company is a party for
which approval of any stockholders of the Company is required; or
(4) the Company shall authorize or enter into any contract providing
for the conveyance or transfer of all or substantially all of the Company's
properties and assets; or
(5) the Company is the subject of a voluntary or involuntary
bankruptcy, insolvency, dissolution, liquidation or winding-up procedure; or
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(6) the Company proposes to take any action that would require any
adjustment of the Exercise Price pursuant to this Section;
then the Company shall cause to be mailed by first-class mail to the Holder, at
least ten (10) days prior to the applicable record or effective date, a notice
stating (A) the date as of which the holders of Common Stock of record to be
entitled to receive any such rights, warrants, options or convertible securities
or distributions referred to in clauses (1) and (2) above are to be determined,
or (B) the date on which any such reorganization, reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up, source or other event referred to in clauses (3), (4) and (5) above
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record will be entitled to exchange their shares of
Common Stock for securities or other property, if any, deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding-up.
Whenever the Exercise Price or the number of shares of Common Stock
purchasable under the terms of this Warrant shall be adjusted pursuant to this
Section, the Company shall promptly prepare a certificate signed by its
President or a Vice President and by its Treasurer or Assistant Treasurer or its
Secretary or Assistant Secretary, setting forth in reasonable detail the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on which the
Company's board of directors made any determination hereunder), and the Market
Price (if applicable) and number of shares of Common Stock purchasable after
giving effect to such adjustment, and shall promptly cause copies of such
certificate to be mailed (by first-class, postage prepaid) to the registered
Holder of this Warrant.
(g) Other Action Affecting Common Stock. If, after the date hereof, the
Company shall take any action affecting the outstanding number of shares of
Common Stock, other than an action described in the other subsections of this
Section, which would have a materially adverse effect upon the rights of the
Holder, the Exercise Price and the number of Warrant Shares shall be adjusted in
such manner and at such time as may be equitable in the circumstances.
Section 7. Reclassification, Reorganization, Consolidation or Merger.
In the event of any reclassification, capital reorganization or other similar
change of outstanding shares of Common Stock of the Company (other than a
subdivision or combination of the outstanding Common Stock and other than a
change in the par value of the Common Stock) or in the event of any
consolidation or merger of the Company with or into another corporation (other
than a merger in which the Company is the continuing corporation and that does
not result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock) or in the event of any sale, lease, transfer
or conveyance to another
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corporation of the property and assets of the Company as an entirety or
substantially as an entirety, the Company shall, as a condition precedent to
such transaction, use best efforts to cause effective provisions to be made so
that the Holder shall have the right thereafter, by exercising this Warrant, to
purchase the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, capital
reorganization and other change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock that might have been received
upon exercise of this Warrant immediately prior to such reclassification,
capital reorganization, change, consolidation, merger, sale or conveyance. Any
such provision shall include provisions for adjustments in respect of such
shares of stock and other securities and property that shall be as nearly
equivalent as may be reasonably practicable to the adjustments provided for in
this Warrant. The foregoing provisions of this Section shall similarly apply to
successive reclassification, capital reorganizations and similar changes of
shares of Common Stock and to successive consolidations, mergers, sales or
conveyances. In the event that in connection with any such capital
reorganization, classification, consolidation, merger, sale or conveyance,
additional shares of Common Stock shall be issued in exchange, conversion,
substitution or payment, in whole or in part, for, or of, a security of the
Company other than Common Stock, any such issuance shall be treated as an
issuance of Common Stock covered by the provisions of Section 6.
Section 8. Miscellaneous.
(a) Specific Performance. The Company acknowledges that there may be no
adequate remedy at law if it fails to perform any of its obligations hereunder
and that the Holder may be irreparably harmed by any such failure, and
accordingly agrees that the Holder, in addition to any other remedy to which the
Holder may be entitled at law or in equity, shall be entitled to compel specific
performance of the Company's obligations under this Warrant in accordance with
the terms hereof in any court of the United States or of any state having
jurisdiction.
(b) Amendments and Waivers. No amendment or waiver of any provision of
this Warrant shall be effective unless and until it shall be set forth in
writing and signed by the Company and the Holder.
(c) Notice. All notices, requests, consents and other communications
hereunder shall be in writing and shall be personally delivered or sent by
facsimile machine (with a confirmation copy sent by one of the other methods
authorized in this Section), commercial (including Federal Express) or U.S.
Postal Service overnight delivery service or, deposited with the U.S. Postal
Service mailed first class, registered or certified mail, postage prepaid, to
the address of the recipient thereof set forth below:
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(i) to the Holder:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Assistant Vice President
Facsimile No.: (000) 000-0000
(ii) to the Company:
The Edison Project Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
and to:
(iii) Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
with copies to:
The Edison Project L.P.
000 XxxxxxxXxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
and to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Notices shall be deemed given upon the earlier to occur of (i) receipt by the
party to whom such notice is directed; (ii) if sent by facsimile machine, on the
day (other than
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a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) such notice is sent if sent (as evidenced by the facsimile confirmed
receipt) prior to 5:00 p.m. Eastern Time and, if sent after 5:00 p.m. Eastern
Time, on the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such notice is directed) after which such notice is sent;
(iii) on the first business day (other than a Saturday, Sunday or legal holiday
in the jurisdiction to which such notice is directed) following the day the same
is deposited with the commercial carrier if sent by commercial overnight
delivery service; or (iv) the fifth day (other than a Saturday, Sunday or legal
holiday in the jurisdiction to which such notice is directed) following deposit
thereof with the U.S. Postal Service as aforesaid. The Company and the Holder by
notice duly given in accordance herewith, may specify a different address for
the giving of any notice hereunder.
Section 9. No Rights as Shareholder. Prior to the exercise of this
Warrant, the Holder shall not be entitled to any rights of a shareholder of the
Company, including, without limitation, the right to vote, the right to receive
dividends and the right to receive other distributions.
Section 10. Fractional Shares. No fractional shares of Common Stock
will be issued in connection with any exercise of this Warrant, but in lieu of
such fractional shares, the Company shall make a cash payment therefor equal in
amount to the product of the applicable fraction multiplied by the Exercise
Price per share paid by the holder for its Warrant Shares upon such exercise.
Section 11. Registration. The Holder hereof shall be entitled to the
registration rights set forth in Section 4 of the Agreement.
Section 12. Headings. The descriptive headings of the several sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
Section 13. Governing Law. This Warrant shall be deemed to be a
contract made under seal and shall be construed in accordance with and governed
by the laws of the State of Delaware (without giving effect to any conflicts of
laws provisions contained therein).
SECTION 14. WAIVER OF JURY TRIAL. THE COMPANY AGREES THAT NEITHER IT
NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS
AGREEMENT, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE COMPANY AND THE
HOLDER, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
SECTION HAVE BEEN FULLY
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DISCUSSED BY THE COMPANY AND THE HOLDER, AND THESE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. THE COMPANY AND THE HOLDER HAVE NOT AGREED WITH OR REPRESENTED
TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
SECTION 15. CONSENT TO JURISDICTION. THE COMPANY HEREBY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AS WELL AS TO THE
JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN OR OTHER REVIEW
SOUGHT FROM THE AFORESAID COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF ANY OF THE COMPANY'S OBLIGATIONS UNDER OR WITH RESPECT
TO THIS WARRANT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY
WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal on November 25, 1997.
ATTEST: THE EDISON PROJECT INC.
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, President
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