EXHIBIT 10.13
NOTE AND WARRANT PURCHASE AGREEMENT, dated
as of March 3, 2000, among GREENFIELD
ONLINE, INC., a Delaware corporation (the
"Corporation"), and GREENFIELD HOLDINGS,
LLC, a Delaware limited liability company
(the "Purchaser").
WHEREAS, the Corporation desires to sell to the Purchaser and the
Purchaser desires to purchase from the Corporation (i) up to an aggregate of
$5,000,000 in principal amount of the Corporation's 10% subordinated promissory
notes and (ii) warrants to purchase shares of the Corporation's Class A Common
Stock, $0.01 par value per share (the "Class A Common Shares"), on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. ISSUANCE OF THE NOTES AND THE WARRANTS.
Upon the terms and subject to the conditions contained in this
Agreement, the Corporation has authorized the issuance to the Purchaser of, and
the Purchaser has committed to purchase from the Corporation, (a) up to
$5,000,000 (the "Total Commitment") in aggregate principal amount of its 10%
subordinated promissory notes (the "10% Notes") due on the date (the "Maturity
Date") which is the earlier to occur of (i) any Fundamental Change, Change of
Control or Liquidity Event and (ii) June 30, 2000, each such 10% Note to be
substantially in the form of EXHIBIT A attached hereto, and (b) warrants (the
"Warrants") to purchase up to 69,930 Class A Common Shares (the "Warrant
Shares"), each such Warrant to be substantially in the form of EXHIBIT B
attached hereto.
Section 2. RESERVATION OF CLASS A COMMON SHARES.
Upon the terms and subject to the conditions contained in this
Agreement, the Corporation shall reserve up to 69,930 Class A Common Shares for
issuance upon exercise of the Warrants.
Section 3. SALE AND PURCHASE OF NOTES AND WARRANTS.
At each Closing (as defined herein), the Corporation shall sell to the
Purchaser, and the Purchaser shall purchase from the Corporation, upon the terms
and subject to the conditions set forth herein 10% Notes in the aggregate
principal amount to be funded at such Closing as requested by the Corporation in
a written request for funding pursuant to Section 4(a). At the Initial Closing
(as defined herein), the Corporation shall sell to the Purchaser, and the
Purchaser shall purchase from the Corporation, a Warrant to purchase that number
of Warrant Shares as may be determined by dividing $500,000 by the Exercise
Price. Anything contained in the Financing Documents to the contrary
notwithstanding, in no event shall the Purchaser be obligated to purchase an
aggregate principal amount of 10% Notes in excess of the Total Commitment. The
Corporation and the Purchaser agree that 99.5% of the aggregate purchase price
to be paid by the Purchaser for the 10% Notes and the Warrants shall be
allocated to the sale and purchase of the 10% Notes. No party hereto shall take
a position inconsistent with this allocation unless otherwise required by law.
Section 4. THE CLOSINGS; THE INITIAL CLOSING.
(a) The sale of the 10% Notes and the Warrants to be purchased
hereunder shall take place at the offices of Wake, See, Dimes & Bryniczka, 00
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, at a closing occurring
simultaneously with the execution and delivery hereof (the "Initial Closing")
and on not more than one other date subsequent to the date hereof as may be
agreed upon by the Corporation and the Purchaser, but in any event not less than
10 business days following receipt by the Purchaser from the Corporation of a
written request for funding pursuant hereto (the "Second Closing", together with
the Initial Closing, are collectively referred to as the "Closings" and each a
"Closing"). At each Closing, the Purchaser shall purchase and the Corporation
shall sell an aggregate principal amount of 10% Notes equal to $2,500,000 of the
Total Commitment.
(b) At the Initial Closing, the Corporation shall deliver to the
Purchaser: (i) a 10% Note registered in the name of the Purchaser in the
aggregate principal amount equal to $2,500,000, (ii) a warrant certificate
representing the Warrant to be purchased by the Purchaser pursuant to Section 3,
(iii) an opinion of Wake, See, Dimes & Bryniczka, counsel to the Corporation,
dated as of the Initial Closing date with respect to the matters set forth in
EXHIBIT C and in form and substance satisfactory to the Purchaser and (iv) a
certificate signed by the chief financial officer or treasurer of the
Corporation to the effect that, both before and immediately after the
consummation of the Initial Closing and the other transactions contemplated to
take place on the Initial Closing date, (a) no Event of Default shall have
occurred and be continuing under the 10% Notes, and (b) the representations and
warranties of the Corporation made in or pursuant to the Financing Documents are
true in all respects (or in all material respects in the case of any such
representation or warranty that is not by its terms already qualified as to
materiality).
(c) In the event of a Second Closing, the Corporation shall deliver
to the Purchaser: (i) a 10% Note registered in the name of the Purchaser in the
aggregate principal amount equal to $2,500,000, (ii) an opinion of Wake, See,
Dimes & Bryniczka, counsel to the Corporation, dated as of the Second Closing
date with respect to the matters set forth in EXHIBIT C and in form and
substance satisfactory to the Purchaser and (iii) a certificate signed by the
chief financial officer or treasurer of the Corporation to the effect that, both
before and immediately after the consummation of the Second Closing and the
other transactions contemplated to take place on the Second Closing date, (a) no
Event of Default shall have occurred and be continuing under the 10% Notes, and
(b) the representations and warranties of the Corporation made in or pursuant to
the Financing Documents are true in all respects (or in all material respects in
the case of any such representation or warranty that is not by its terms already
qualified as to materiality).
(d) It being understood that this Agreement does not constitute a
revolving loan commitment, any amounts repaid or prepaid on 10% Notes purchased
hereunder may not be reborrowed.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation hereby represents and warrants to the Purchaser as
follows:
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5.1. ORGANIZATION.
Each of the Corporation and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as listed on SCHEDULE 5.1, and has all requisite
corporate or other power and authority to own, lease and operate its properties
and other assets and to carry on its business as presently conducted and as a
foreign Person in those jurisdictions listed on SCHEDULE 5.1, which constitute
all the jurisdictions in which the character of the property owned or leased by
the Corporation or such subsidiary or the nature of the activities conducted by
the Corporation or such subsidiary makes such qualification necessary. Attached
hereto as EXHIBIT D is a correct and complete copy of the Certificate of
Incorporation of the Corporation (the "Charter") and attached hereto as EXHIBIT
E is a correct and complete copy of the By-Laws of the Corporation (the
"By-Laws"), in each case as currently in effect.
5.2. CAPITALIZATION.
(a) The authorized capital stock of the Corporation as of the date
of the Initial Closing shall consist of:
(i) 4,000,000 duly authorized shares of Class A Common Stock,
of which:
(A) 1,900,750 shares of Class A Common Stock shall be
validly issued and outstanding, fully paid and nonassessable, with
no personal liability attaching to the ownership thereof; and
(B) 2,210,179 shares of Class A Common Stock shall be
duly reserved for issuance upon the exercise of the Warrants and
outstanding options and other warrants listed on SCHEDULE 5.2
(whether or not presently exercisable);
(ii) 15,000,000 duly authorized shares of Class B Common
Stock, of which 10,927,575 shares shall have been validly issued and
outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof.
All of such outstanding shares in each case are owned of record and beneficially
by the Persons identified on SCHEDULE I attached hereto, without Encumbrance, in
the amounts set forth thereon.
(b) SCHEDULE 5.2 hereto contains a list, as of the date hereof and
assuming the consummation at each Closing of all the transactions contemplated
by the Financing Documents (as defined in Section 5.3), of all outstanding
warrants, options, agreements, convertible securities or other commitments
pursuant to which the Corporation or any stockholder thereof is or may become
obligated to issue, sell or otherwise transfer any capital stock or other
securities of the Corporation, which list (i) names all parties entitled to
receive such shares of capital stock or other securities, (ii) indicates whether
or not such shares of capital stock or other securities are entitled to any
anti-dilution or similar adjustments upon the issuance of additional securities
of the Corporation or otherwise and (iii) sets forth the capital stock or other
securities required to be issued thereunder. Except as contemplated hereby,
there are, and immediately upon consummation at each Closing of the transactions
contemplated hereby, there will be, no preemptive or similar rights to purchase
or otherwise acquire the capital stock of the Corporation
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pursuant to any provision of law, the Charter, the By-Laws or any agreement to
which the Corporation or any shareholder thereof is a party other than as set
forth in the Stockholders' Agreement dated as of May 17, 1999 by and among the
parties thereto (the "Stockholders' Agreement"). Except as set forth on SCHEDULE
5.2, there is, and immediately upon the consummation at each Closing of the
transactions contemplated hereby, there will be, no agreement, restriction or
encumbrance (such as a right of first refusal, right of first offer, proxy,
voting trust, voting agreement, etc.) with respect to the sale or voting of any
capital stock of the Corporation (whether outstanding or issuable upon
conversion or exercise of outstanding securities) other than as set forth in the
Stockholders' Agreement.
(c) All of the outstanding shares of capital stock of the
Corporation have been issued in accordance with applicable foreign, state and
federal laws and regulations governing the sale and purchase of securities.
5.3. AUTHORIZATION OF AGREEMENT, ETC.
The execution, delivery and performance by the Corporation of this
Agreement, the 10% Notes, the Warrants and each other document or instrument
contemplated hereby (collectively, the "Financing Documents") have been duly
authorized by all requisite action (corporate or otherwise) by the Corporation;
and this Agreement and each other Financing Document has been duly executed and
delivered by the Corporation. Each of the Financing Documents is or, in the case
of the 10% Notes and the Warrants, will be, the valid and binding obligation of
the Corporation, enforceable against the Corporation in accordance with its
terms.
5.4. NO CONFLICTS.
The execution, delivery and performance by the Corporation of this
Agreement or the other Financing Documents, the issuance, sale and delivery of
the 10% Notes and the Warrants (and the issuance of any Class A Common Shares
issuable upon the exercise of the Warrants), and compliance with the provisions
hereof by the Corporation, will not (a) violate any provision of law, statute,
rule or regulation (whether foreign or domestic) applicable to the Corporation
or any ruling, writ, injunction, order, judgment or decree of any court,
arbitrator, administrative agency or other governmental body (whether foreign or
domestic) applicable to the Corporation or any of its properties or assets or
(b) conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute (with notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under,
or result in the creation of, any Encumbrance upon any of the properties or
assets of the Corporation under, the Charter or By-Laws of the Corporation or
any material contract to which it is a party.
5.5. APPROVALS.
Except for (a) the filing of any notice subsequent to any Closing which
may be required under applicable foreign, federal or state securities law
(which, if required, will be filed on a timely basis as may be so required) and
(b) obtaining the approval of existing holders of the Corporation's outstanding
capital stock, no permit, authorization, consent or approval of or by, or any
notification of or filing with, any person (governmental or private) is required
in connection with the execution, delivery or performance of the Financing
Documents by the Corporation.
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5.6. AUTHORIZATION OF THE CLASS A COMMON SHARES, ETC.
The issuance, sale and delivery by the Corporation of the 10% Notes,
the Warrants and the Warrant Shares have been duly authorized by all requisite
corporate action of the Corporation, and, when issued as contemplated by the
Warrants, the Warrant Shares will be validly issued and outstanding, fully paid
and nonassessable and not subject to preemptive or any other similar rights of
the stockholders of the Corporation or others.
5.7. BROKERS AND FINDERS.
The Corporation has not employed any broker or finder in connection
with the transactions contemplated by this Agreement.
Section 6. INVESTMENT REPRESENTATIONS OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Corporation as
follows:
(a) The Purchaser is acquiring the Notes and Warrants to be
purchased by the Purchaser hereunder and, in the event that the Purchaser should
acquire any Class A Common Shares, will be acquiring such Class A Common Shares,
for its own account, for investment and not with a view to the distribution
thereof in violation of the Securities Act or applicable foreign or state
securities laws.
(b) The Purchaser understands that (i) the 10% Notes and the
Warrants have not been, and that the Class A Common Shares will not be,
registered under the Securities Act or applicable foreign or state securities
laws, by reason of their issuance by the Corporation in a transaction exempt
from the registration requirements of the Securities Act and applicable foreign
and state securities laws and (ii) the Notes and Warrants and the Class A Common
Shares must be held by the Purchaser indefinitely unless a subsequent
disposition thereof is registered under the Securities Act and applicable
foreign and state securities Laws or is exempt from registration thereof. The
Purchaser is an "accredited investor" (as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act).
(c) The Purchaser has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
Section 7. CERTAIN DEFINITIONS.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq., as amended from time to time.
"Change of Control" shall be deemed to have occurred at such time as a
"person" or "group" (within the meaning of Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly,
of more than 20% of the total voting power of all classes of stock then
outstanding of the Corporation normally entitled to vote in the election of
directors.
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"Encumbrance" shall mean any liens, charges, encumbrances, equities,
claims, options, proxies, pledges, security interests, or other similar rights
of any nature.
"Exercise Price" shall mean $7.15, as adjusted pursuant to the
Warrants.
"Fundamental Change" shall mean any acquisition, merger, consolidation,
reorganization, or recapitalization, or reclassification of the Corporation's
capital stock, or liquidation, winding up, or dissolution of the Corporation, or
conveyance, sale, assignment, lease, transfer, or other disposition of, in one
transaction or a series of transactions, all or any substantial part of the
Corporation's business, property, or assets, or the acquisition by purchase or
otherwise of all or substantially all of the properties, assets, stock, or other
evidence of beneficial ownership of the Corporation; provided, however, that any
conversion of existing securities by the holders of Class B Common Stock,
including mandatory conversion pursuant to the terms of the Charter pursuant to
an offering by the Corporation of its securities to the general public pursuant
to a registration statement filed under the Securities Act, shall not be deemed
to be a Fundamental Change.
"Liquidity Event" shall mean any transaction (or series of related
transactions) in which the Corporation receives more than $10,000,000 in gross
proceeds from the sale of its capital stock or other securities that are
directly or indirectly convertible or exchangeable into or exercisable for
shares of the Corporation's capital stock.
Section 8. STOCKHOLDERS' AGREEMENT.
The Warrants and the Warrant Shares shall be subject to the provisions
of the Stockholders' Agreement, including, but not limited to, the registration
rights set forth therein, as if the same were Investor Shares.
Section 9. PARTIES IN INTEREST.
This Agreement shall bind and inure to the benefit of the Corporation,
the Purchasers and their respective successors and assigns.
Section 10. ENTIRE AGREEMENT.
This Agreement and the other writings and agreements referred to herein
or delivered pursuant hereto contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
Section 11. NOTICES.
All notices, demands and requests of any kind to be delivered to any
party in connection with this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered or if sent by nationally-
recognized overnight courier or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) if to the Corporation, to:
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Greenfield Online, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.;
with a copy to:
Wake, See, Dimes & Bryniczka
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) if to the Purchaser, to:
Greenfield Holdings, LLC
c/o InSight Capital Partners
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(c) with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Nissan, Esq.;
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance with the
provisions of this Section 11. Any such notice or communication shall be deemed
to have been received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of nationally-recognized overnight courier, on the
next business day after the date when sent and (iii) in the case of mailing, on
the third business day following that on which the piece of mail containing such
communication is posted.
Section 12. AMENDMENTS.
This Agreement may not be modified or amended, or any of the provisions
hereof waived, except by written agreement of the Corporation and the Purchaser.
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Section 13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
Section 14. HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without giving effect to principles of
conflicts of laws).
Section 16. EXPENSES.
The Corporation agrees to pay, and hold the Purchaser and all holders
of 10% Notes and Warrants or Warrant Shares harmless against liability for the
payment of: (i) the reasonable out-of-pocket expenses (including attorneys' fees
and expenses) of the Purchaser arising in connection with its due diligence and
the negotiation and execution of the Financing Documents and the consummation of
the transactions contemplated by the Financing Documents which shall be payable
at each Closing and with respect to any amendments or waivers (whether or not
the same become effective) under or in respect of the Financing Documents, or
the other agreements contemplated thereby, including the Charter, (ii) stamp and
other taxes which may be payable in respect of the execution and delivery of the
Financing Documents or the issuance, delivery or acquisition of the 10% Notes,
the Warrants or any Warrant Shares and (iii) the reasonable fees and expenses
incurred with respect to the enforcement of the rights granted under the
Financing Documents, the agreements contemplated thereby and the Charter.
* * * * *
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Note
and Warrant Purchase Agreement as of the date first written above.
GREENFIELD ONLINE, INC.
By:
------------------------
Name:
Title:
GREENFIELD HOLDINGS, LLC
By:
------------------------
Name:
Title:
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AMENDMENT NO. 1, dated as of March
10, 2000 (this "Amendment No. 1"), to the
Note and Warrant Purchase Agreement dated as
of March 3, 2000 (the "Purchase Agreement"),
among GREENFIELD ONLINE, INC., a Delaware
corporation (the "Borrower"), and GREENFIELD
HOLDINGS, LLC, a Delaware limited liability
company (the "Purchaser").
RECITALS
The Borrower has requested that the Maturity Date (as defined in the
Purchase Agreement) of the 10% Notes issued pursuant to the Purchase Agreement
be extended to June 30, 2001. The Purchaser is willing to agree to such
extension, but only on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined herein, capitalized
terms shall be accorded the definitions assigned to them in the Purchase
Agreement.
Section 2. Amendments to the Purchase Agreement.
2.1. Section 1 of the Purchase Agreement is hereby amended by
deleting the reference to "June 30, 2000" in subclause (ii) of clause (a)
thereof and replacing it with "June 30, 2001".
2.2. The Purchase Agreement is hereby amended by adding a new
Section 4A thereto to read in its entirety as follows:
"Section 4A. Contingent Right To Additional Warrants.
Notwithstanding anything to the contrary contained in the
Financing Documents, if the Corporation has not repaid all of
the principal and interest due on the 10% Notes on or prior to
each date set forth below, then, not later than the fifth
business day following such date, the Corporation shall issue
to the Purchaser additional warrants (the "Contingent
Warrants") to purchase the number of Class A Common Shares (as
such number of Class A Common Shares may be adjusted for stock
splits, stock dividends, split ups, combinations,
reclassifications of Class A Common Shares, capital
reorganizations, mergers or consolidations and other similar
events) set forth opposite the corresponding date below (each
such date, as applicable, shall be referred to as the
"Contingent Warrant Effective Date"):
September 30, 2000 34,965
December 31, 2000 34,965
March 31, 2001 34,965
June 30, 2001 34,965
The exercise price at any time for each Class A Common Share
subject to a particular Contingent Warrant shall be the fair
market value of a Class A Common Share, as determined in good
faith by the Corporation's Board of Directors, as of the
applicable Contingent Warrant Effective Date. The exercise
period for each Contingent Warrant shall be at any time or
from time to time after the applicable Contingent Warrant
Effective Date until and including the fifth anniversary
thereof. The Contingent Warrants shall contain such other
terms and conditions substantially as set forth in the form of
Warrant attached hereto as Exhibit B."
Section 3. Expenses. The Corporation hereby confirms its obligations
under Section 16 of the Purchase Agreement with respect to the payment of
expenses, fees and other amounts thereunder in connection with this Amendment
No. 1, the Contingent Warrants and the Class A Common Shares issued pursuant to
exercise of the Contingent Warrants.
Section 4. References to the Purchase Agreement. From and after the
date hereof, all references in the Purchase Agreement and each of the other
Financing Documents to the Purchase Agreement shall be deemed to be references
to the Purchase Agreement after giving effect to this Amendment No. 1.
Section 5. No Other Amendments. Except as expressly set forth herein,
the Purchase Agreement remains in full force and effect in accordance with its
terms and nothing contained herein shall be deemed (i) to be a waiver,
amendment, modification or other change of any term, condition or provision of
the Purchase Agreement or any other Financing Document (or a consent to any such
waiver, amendment, modification or other change), (ii) to be a consent to any
transaction, (iii) to prejudice any right or rights which the Purchaser may have
under the Purchase Agreement and/or any of the other Financing Documents, or
(iv) to entitle the Corporation to a waiver, amendment, modification or other
change of any term, condition or provision of the Purchase Agreement or any
other Financing Document (or a consent to any such waiver, amendment,
modification or other change), or to a consent, in the future in similar or
different circumstances.
Section 6. Further Assurances. The parties hereto agree to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time reasonably
request in connection with the administration and enforcement of this Amendment
No. 1 or in order better to assure and confirm unto the Purchaser its rights and
remedies hereunder and to permit the exercise thereof in compliance with
applicable law.
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Section 7. Notices. All notices, demands and requests of any kind to be
delivered to any party hereto in connection with this Amendment No. 1 shall be
delivered in accordance with the notice provisions contained in the Purchase
Agreement.
Section 8. Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
into consideration in interpreting, this Amendment No. 1.
Section 9. Counterparts. This Amendment No. 1 may be executed in any
number of separate counterparts, each of which shall be an original and all of
which taken together shall constitute one and the same instrument.
Section 10. Applicable Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed and delivered as of the day and year first above written.
GREENFIELD ONLINE, INC.
By:
------------------------
Xxxxxxxx X. Xxxxxx
Secretary
GREENFIELD HOLDINGS, LLC
By:
------------------------
Xxxxxxx Xxxxxx
President
