EXHIBIT 99.3
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS.
COMMON STOCK PURCHASE WARRANT
TO PURCHASE 917,297
SHARES OF COMMON STOCK OF
OPEN MARKET, INC.
THIS CERTIFIES that, for value received, HALIFAX FUND, L.P. and its
successors and assigns (the "HOLDER") is entitled, upon the terms and subject to
the conditions hereinafter set forth, at any time and from time to time on and
after the date hereof (the "COMMENCEMENT DATE"), and on and prior to 5:00 p.m.
Eastern Time on the fifth anniversary of the date of issuance hereof (the
"EXPIRATION DATE"), but not thereafter, to subscribe for and purchase from OPEN
MARKET, INC., a Delaware corporation (the "COMPANY"), 917,297 shares (the
"WARRANT SHARES") of common stock, $0.001 par value per share ("COMMON STOCK"),
of the Company. The purchase price of one share of Common Stock under this
Warrant shall be the Exercise Price, as defined below and as may be adjusted
from time to time pursuant to the terms hereof. The Exercise Price and the
number of shares for which this Warrant is exercisable shall be subject to
adjustment as provided herein. This Warrant is being issued in connection with
the Purchase Agreement dated on or about the date hereof (the "PURCHASE
AGREEMENT") entered into between the Company, the Holder and the other
Purchasers named therein (if any).
1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed thereto in the Purchase
Agreement. As used in this Warrant, the following terms shall have the following
respective meanings:
"CHANGE IN CONTROL TRANSACTION" will be deemed to exist if (i) there
occurs any consolidation, merger or other business combination of the Company
with or into any other corporation or other entity or person (whether or not the
Company is the surviving corporation), or any other corporate reorganization or
transaction or series of related transactions in which in any of such events the
voting stockholders of the Company prior to such event cease to own 50% or more
of the voting stock, or corresponding voting equity interests, of the surviving
corporation
after such event (including without limitation any "going private" transaction
under Rule 13e-3 promulgated pursuant to the Exchange Act), (ii) any tender
offer by the Company under Rule 13e-4 promulgated pursuant to the Exchange Act
for 20% or more of the Company's Common Stock, (iii) any person (as defined in
Section 13(d) of the Exchange Act), together with its affiliates and associates
(as such terms are defined in Rule 405 under the Act), beneficially owns or is
deemed to beneficially own (as described in Rule 13d-3 under the Exchange Act
without regard to the 60-day limit on the exercise period) in excess of 50% of
the Company's voting power, (iv) there is a replacement of more than one-half of
the members of the Company's Board of Directors which is not approved by those
individuals who are members of the Company's Board of Directors on the date
thereof, or (v) in one or a series of related transactions, there is a sale or
transfer of all or substantially all of the assets of the Company, determined on
a consolidated basis.
"CONVERTIBLE SECURITIES" means any convertible securities, warrants,
options or other rights to subscribe for or to purchase or exchange for, shares
of Common Stock.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXERCISE DATE" shall have the meaning set forth in Section 4(c).
"EXERCISE PRICE" means $1.9078 (140% of VWAP on the day preceding the
Closing Date).
"PRINCIPAL MARKET" shall mean the Approved Market or such other market
or exchange on which the Common Stock is then principally traded.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TRADING DAY" shall mean a day on which there is trading on the
Principal Market.
2. TITLE OF WARRANT. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose, in the name of
the record holder hereof from time to time. The Company may deem and treat the
registered holder of this Warrant as the absolute owner hereof for the purpose
of any exercise hereof or any distribution to the holder, and for all other
purposes, and the Company shall not be affected by notice to the contrary except
as provided herein.
Prior to the expiration hereof and subject to compliance with
applicable laws, this Warrant and all rights hereunder are transferable, in
whole or in part, provided that the amount assigned shall be for the right to
purchase at least 10,000 Warrant Shares, at the office or agency of the Company
by the holder hereof in person or by duly authorized attorney, upon surrender of
this Warrant together with the Assignment Form annexed hereto properly endorsed.
The term "HOLDER" shall refer to the Holder or any subsequent transferee of this
Warrant. If this Warrant is duly assigned in accordance with the terms hereof,
then the Company agrees, upon the request of the assignee, to amend or
supplement promptly any effective registration statement covering the Warrant
Shares so that the such assignee is added as a selling stockholder
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thereunder, subject to such assignee providing the information required for such
amendment or supplement and provided that no unreasonable change may be required
to the description of the intended methods of distribution as set forth in the
Registration Statement by virtue of such transfer.
3. AUTHORIZATION OF SHARES. The Company covenants that all
shares of Common Stock which may be issued upon the exercise of rights
represented by this Warrant will, upon exercise of the rights represented by
this Warrant and payment of the Exercise Price as set forth herein will be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue or otherwise
specified herein).
4. EXERCISE OF WARRANT.
(a) EXERCISE PROCEDURE. Exercise of the purchase
rights represented by this Warrant may be made at any time and from time to
time, in whole or in part, on or after the Commencement Date but before 5:00
p.m. Eastern Time on the Expiration Date, by (i) delivering the Notice of
Exercise annexed hereto duly completed and executed (which may be by facsimile)
to the Company at the principal office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the registered
holder hereof at the address of such holder appearing on the books of the
Company), and upon payment of the full Exercise Price of the shares thereby
purchased, whereupon the holder of this Warrant shall be entitled to receive a
certificate for the number of shares of Common Stock so purchased. Subject to
subsection (b) below, payment of the Exercise Price of the shares shall be by
certified check or cashier's check or by wire transfer (of same day funds) to an
account designated by the Company in an amount equal to the Exercise Price
multiplied by the number of shares being purchased.
(b) CASHLESS EXERCISE. Alternatively, and only in the
event there is no effective registration statement covering the resale of the
Warrant Shares, the Holder may exercise this Warrant, in whole or in part in a
"cashless" or "net-issue" exercise by delivering to the offices of the Company
or any transfer agent for the Common Stock a Notice of Exercise specifying the
number of Warrant Shares to be delivered to such Warrant holder ("DELIVERABLE
SHARES") and the number of Warrant Shares with respect to which this Warrant is
being exercised ("EXERCISED SHARES"). The number of Deliverable Shares shall be
calculated as follows:
# of Deliverable Shares = # of Exercised Shares x Fair Market Value of Common Stock less Exercise Price
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Fair Market Value of Common Stock
"FAIR MARKET VALUE" shall be deemed to be the last reported sale price
of Common Stock on the Trading Day immediately prior to exercise, or, if not
reported, the fair market value of such Common Stock as reasonably determined by
the Company and such Holder.
(c) ISSUANCE OF WARRANT SHARES AND UNEXERCISED
WARRANTS. In the event that this Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised and/or surrendered, and the Company, at its expense,
shall within five (5) Trading Days, issue and deliver to or upon the
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order of the Holder a new Warrant of like tenor in the name of the Holder or as
the Holder (upon payment by the Holder of any applicable transfer taxes) may
request, reflecting such adjusted number of Warrant Shares.
All exercises of this Warrant will be deemed to occur as of the date of
receipt by the Company of a validly executed Notice of Exercise (or such later
date as may be indicated on such Notice of Exercise) (such date being referred
to herein as the "EXERCISE DATE"), and certificates for shares of Common Stock
purchased hereunder shall be delivered to the Holder hereof within five (5)
Trading Days after the Exercise Date; provided, that if prior to such date the
Company has not received the Warrant or an affidavit of lost Warrant, then such
delivery may be extended until one Trading Day after receipt of such Warrant or
affidavit by the Company. The Holder may withdraw its Notice of Exercise under
Section 4(a) or 4(b) at any time thereafter, in whole or in part, if the Company
fails to timely deliver the applicable certificates to the Holder as provided in
this Warrant.
In lieu of delivering physical certificates representing the Warrant
Shares issuable upon conversion of this Warrant, provided the Company's transfer
agent is participating in the Depository Trust Company ("DTC") Fast Automated
Securities Transfer ("FAST") program, upon request of the holder, the Company
shall use its commercially reasonable best efforts to cause its transfer agent
to electronically transmit the Warrant Shares issuable upon exercise to the
holder, by crediting the account of the holder's prime broker with DTC through
its Deposit Withdrawal Agent Commission ("DWAC") system. The time periods for
delivery described above shall apply to the electronic transmittals through the
DWAC system. The Company agrees to coordinate with DTC to accomplish this
objective.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional Warrant Shares
or scrip representing fractional Warrant Shares shall be issued upon the
exercise of this Warrant. Any fractional share or scrip shall be rounded up to
the nearest whole number.
6. CHARGES, TAXES AND EXPENSES. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be made without
charge to the holder hereof for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company (other than income, franchise or similar
taxes) and such certificates shall be issued in the name of the holder of this
Warrant or in such name or names as may be directed by the holder of this
Warrant; PROVIDED, HOWEVER, that in the event certificates for shares of Common
Stock are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof; and PROVIDED
FURTHER, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issuance of any
Warrant certificates or any certificates for the Warrant Shares in a name other
than the name of the holder.
7. CLOSING OF BOOKS. The Company will at no time close its
shareholder books or records in any manner which interferes with the timely
exercise of this Warrant.
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8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. Subject to
Sections 11 and 12 of this Warrant and the provisions of any other written
agreement between the Company and the Holder, prior to the exercise of this
Warrant as provided herein, the Holder shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares or any other securities of
the Company that may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the
Holder, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, or change of stock to no par
value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights. However, at the time
of the exercise of this Warrant pursuant to Section 4 hereof, the Warrant Shares
so purchased hereunder shall be deemed to be issued to such Holder as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been exercised.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT;
DENOMINATION. In the event that any holder notifies the Company that its
Warrant(s) have been lost, stolen or destroyed, then replacement Warrant(s)
identical in all respects to the original Warrant(s) (except for any
registration number and any adjustments to Exercise Price or the number of
Warrant Shares issuable hereunder pursuant hereto, if different than that shown
on the original Warrant(s)) shall be delivered to the holder by the Company
within five (5) Trading Days, provided that such holder executes and delivers to
the Company an agreement reasonably satisfactory to the Company to indemnify the
Company from any loss incurred by it in connection with such Warrants. This
Warrant is exchangeable for an equal aggregate number of Warrants of different
denominations, as requested by the holder surrendering the same. No service
charge will be made for such registration, replacement, transfer or exchange.
10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday, then
such action may be taken or such right may be exercised on the next succeeding
day not a legal holiday.
11. EFFECT OF CERTAIN EVENTS. If at any time while this
Warrant or any portion hereof is outstanding and unexpired there shall be a
Change in Control Transaction, then the Holder shall have the right thereafter
to purchase, by exercise of this Warrant and payment of the aggregate Exercise
Price in effect immediately prior to such Change in Control Transaction, the
kind and amount of consideration including cash, stock, other securities, assets
or any other property, which it would have owned or have been entitled to
receive upon or after the happening of such transaction had this Warrant been
exercised immediately prior thereto, subject to further adjustment as provided
in Section 12. The Company shall not consummate a Change in Control Transaction
unless the entity resulting from such transaction (if not the Company), or such
transferee entity, as the case may be, shall expressly assume, by supplemental
agreement reasonably satisfactory in form and substance to the Holder, the due
and punctual performance and observance of each and every covenant and condition
of this Warrant to be performed and observed by the Company.
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12. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES.
(a) STOCK DIVIDENDS, SPLITS, COMBINATIONS AND
RECLASSIFICATIONS. If, to the extent not covered by Section 11 above, the
Company or any Subsidiary, at any time while this Warrant or any portion thereof
is issued, outstanding and unexpired: (A) shall declare or pay a stock dividend
or otherwise make a distribution or distributions on any equity securities
(including securities convertible into or exchangeable or exercisable for such
equity securities) in shares of Common Stock; (B) subdivide outstanding Common
Stock into a larger number of shares; (C) combine outstanding Common Stock into
a smaller number of shares; or (D) issue any shares of its capital stock in a
reclassification of the Common Stock (including without limitation in connection
with any merger or consolidation), then the Exercise Price hereunder shall be
adjusted by multiplying the Exercise Price by a fraction of which the numerator
shall be the number of shares of Common Stock (excluding treasury shares, if
any) outstanding before such event and of which the denominator shall be the
number of shares of Common Stock (excluding treasury shares, if any) outstanding
after such event. Any adjustment made pursuant to this Section 12(a) shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision or
combination.
(b) DISTRIBUTIONS. If the Company or any Subsidiary, at
any time while this Warrant is outstanding, shall distribute to all holders of
Common Stock evidences of its indebtedness or assets or cash or rights or
warrants to subscribe for or purchase any security of the Company or any of its
subsidiaries, then the Exercise Price in effect at the opening of business on
the day following the date fixed for the determination of holders of Common
Stock entitled to receive such distribution shall be adjusted by multiplying
such Exercise Price by a fraction, the numerator of which shall be the Fair
Market Price (as defined below) per share of the Common Stock less the then fair
market value as reasonably determined by the Board of Directors of the portion
of the evidences of indebtedness or assets or rights or warrants so distributed
(and for which an adjustment to the Exercise Price has not previously been made
pursuant to the terms of this Section 12) applicable to one share of Common
Stock, and the denominator of which shall be such Fair Market Price per share of
the Common Stock. Such adjustment shall become effective immediately after the
opening of business on the day following the date fixed for the determination of
holders of Common Stock entitled to receive such distribution. "FAIR MARKET
PRICE" shall mean the closing market price per share of Common Stock on the
Principal Market on the Trading Day next preceding such fixed determination date
or such other date on which the Fair Market Price is being determined. The
Company shall deliver to each holder of Warrants a notice setting forth the
Exercise Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and the computation thereof. In the event that
the Exercise Price shall change by more than 5%, the holders of Warrants shall
have the right to have the fair market value determined by an independent
nationally reputable investment banker mutually selected by the Company and the
Holder, at the Company's expense.
(c) COMMON STOCK ISSUANCES. In the event that the Company
or any Subsidiary issues or sells any Common Stock or securities which are
convertible into or exchangeable for its Common Stock (other than the Shares
issued under the Purchase
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Agreement), or any warrants or other rights to subscribe for or to purchase or
any options for the purchase of its Common Stock (other than shares or options
issued or which may be issued pursuant to (i) the Company's employee or director
option plans or shares issued upon exercise of options, warrants or rights
outstanding on the date of this Warrant and listed in the Company's SEC
filings); (ii) the Company's employee stock purchase plan; (iii) the Company's
Series E 6% Cumulative Convertible Preferred Stock; and (iv) the Company's
equity line with The Gleneagles Fund Company (counting Convertible Securities as
if such securities were converted, exercised or exchanged) based on the Fair
Market Price at the time of issuance of such securities) at an effective
purchase price per share which is less than the Exercise Price, then in each
such case, the Exercise Price in effect immediately prior to such issue or sale
or record date, as applicable, shall be reduced effective concurrently with such
issue or sale to an amount determined by multiplying the Exercise Price then in
effect by a fraction, (x) the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding immediately prior to such issue or
sale, plus (2) the number of shares of Common Stock which the aggregate
consideration received by the Company for such additional shares would purchase
at such Exercise Price, and (y) the denominator of which shall be the number of
shares of Common Stock of the Company outstanding immediately after such issue
or sale.
For the purposes of the foregoing adjustment, in the case of the
issuance of any convertible securities, warrants, options or other rights to
subscribe for or to purchase or exchange for, shares of Common Stock
("CONVERTIBLE SECURITIES"), the maximum number of shares of Common Stock
issuable upon exercise, exchange or conversion of such Convertible Securities
shall be deemed to be outstanding, provided that no further adjustment shall be
made upon the actual issuance of Common Stock upon exercise, exchange or
conversion of such Convertible Securities. With respect to Convertible
Securities, the effective purchase price per share shall be equal to the lowest
price at which shares of Common Stock may be issued on conversion, exercise or
exchange of the Convertible Securities at the time the adjustment is being
calculated. If such lowest price may change after issuance of the Convertible
Securities (for example, by reason of adjustments or resets resulting from
changes in the market price for the Common Stock, or for any other reason) then
this adjustment shall be recomputed to reflect such new "lowest price."
(d) REORGANIZATION, MERGER OR GOING PRIVATE. In case of any
reorganization or any reclassification of the capital stock of the Company or
any consolidation or merger of the Company with or into any other corporation or
corporations or a sale or transfer of all or substantially all of the assets of
the Company to any other person or a "going private" transaction under Rule
13e-3 promulgated pursuant to the Exchange Act, in each case other than a Change
in Control Transaction, then, as part of such reorganization, consolidation,
merger, or transfer if the holders of shares of Common Stock receive any
publicly traded securities as part or all of the consideration for such
reorganization, consolidation, merger or sale, then it shall be a condition
precedent of any such event or transaction that provision shall be made in a
manner reasonably satisfactory to the Holder such that this Warrant shall
thereafter be exercisable for such new securities at and exercise price and
pricing formula which places the Holder in an economically equivalent position
as it would have been if not for such event. In addition to the foregoing, if
the holders of shares of Common Stock receive any non-publicly traded securities
or other property or cash as part or all of the consideration for such
reorganization, consolidation,
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merger or sale, in each case other than a Change in Control Transaction, then
such distribution shall be treated to the extent thereof as a distribution under
Section 12(b) above and such Section shall also apply to such distribution.
(e) INVERSE PROPORTIONAL ADJUSTMENTS TO EXERCISE PRICE AND
WARRANT SHARES. In the event of any adjustment in the number of Warrant Shares
issuable hereunder upon exercise, the Exercise Price shall be inversely
proportionately increased or decreased as the case may be, such that aggregate
purchase price for Warrant Shares upon full exercise of this Warrant shall
remain the same. Similarly, in the event of any adjustment in the Exercise
Price, the number of Warrant Shares issuable hereunder upon exercise shall be
inversely proportionately increased or decreased as the case may be, such that
aggregate purchase price for Warrant Shares upon full exercise of this Warrant
shall remain the same.
13. NOTICES. If:
(i) the Company shall declare a dividend (or any
other distribution) on its Common Stock; or
(ii) the Company shall declare a cash dividend on or
a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to all
holders of the Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of
any rights; or
(iv) the approval of any stockholders of the Company
shall be required in connection with any reclassification of
the Common Stock of the Company, any consolidation or merger
to which the Company is a party, any sale or transfer of all
or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; or
(v) the Company shall authorize the voluntary
dissolution, liquidation or winding up of the affairs of the
Company;
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant register of the Company, at least 20
calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or
warrants are to be determined and/or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is
expected to become effective or close, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities, cash or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up.
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14. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at its
option, at any time during the term of this Warrant, reduce but not increase the
then current Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
15. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, the Company shall promptly mail
by registered or certified mail, return receipt requested, to the holder of this
Warrant a notice setting forth the number of Warrant Shares (and other
securities or property) purchasable upon the exercise of this Warrant and the
Exercise Price of such Warrant Shares after such adjustment, setting forth a
brief statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made.
16. AUTHORIZED SHARES. The Company covenants that during the
period this Warrant is outstanding and exercisable, it will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of the Warrant Shares upon the exercise of any and all purchase
rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of
the Principal Market or any other domestic securities exchange or market upon
which the Common Stock may be listed.
17. EXERCISE LIMITATION.
(a) Notwithstanding anything to the contrary contained herein,
the number of shares of Common Stock that may be acquired by the Holder
at any time upon exercise pursuant to the terms hereof shall not exceed
a number that, when added to the total number of shares of Common Stock
deemed beneficially owned by such Holder at such time (other than by
virtue of the ownership of securities or rights to acquire securities
(including the Warrant and Preferred Shares) that have limitations on
the Holder's right to convert, exercise or purchase similar to the
limitation set forth herein), together with all shares of Common Stock
deemed beneficially owned (other than by virtue of the ownership of
securities or rights to acquire securities that have limitations on the
right to convert, exercise or purchase similar to the limitation set
forth herein) by the Holder's "affiliates" (as defined in Rule 144 of
the Securities Act) ("AGGREGATION PARTIES") that would be aggregated
for purposes of determining whether a group under Section 13(d) of the
Exchange Act, exists, would exceed 9.9% of the total issued and
outstanding shares of the Common Stock (the "RESTRICTED OWNERSHIP
PERCENTAGE"). The Holder shall have the right (x) at any time and from
time to time to reduce its Restricted Ownership Percentage immediately
upon notice to the Company and (y) (subject to waiver) at any time and
from time to time, to increase its Restricted Ownership Percentage
immediately in the event of the announcement as pending or planned, of
a Change in Control Transaction.
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(b) The Holder covenants at all times on each day (each such
day being referred to as a "COVENANT DAY") as follows: During the balance of
such Covenant Day and the succeeding sixty-one (61) days (the balance of such
Covenant Day and the succeeding 61 days being referred to as the "COVENANT
PERIOD") such Holder will not acquire shares of Common Stock pursuant to any
right (including exercise of Warrants) existing at the commencement of the
Covenant Period to the extent the number of shares so acquired by such Holder
and its Aggregation Parties (ignoring all dispositions) would exceed:
(i) the Restricted Ownership Percentage of the total
number of shares of Common Stock outstanding at the
commencement of the Covenant Period, MINUS
(ii) the number of shares of Common Stock actually
owned by such Holder and its Aggregation Parties at the
commencement of the Covenant Period.
A new and independent covenant will be deemed to be given by
the Holder as of each moment of each Covenant Day. No covenant will terminate,
diminish or modify any other covenant. The Holder agrees to comply with each
such covenant. This Section 17 controls in the case of any conflict with any
other provision of the Purchase Agreement or any agreement entered into in
connection therewith.
The limitations contained in paragraphs (a) and (b) above of
this Section 17 maybe enforced by the Company as follows: the Company's
obligation to issue Common Stock which would exceed the limits referred to in
paragraphs (a) and (b) of this Section 17 shall be suspended to the extent
necessary until such time, if any, as shares of Common Stock may be issued in
compliance with such restrictions.
(c) The issuance of shares of Common Stock hereunder is
subject to the provisions of Section 3.12 of the Purchase Agreement.
18. MISCELLANEOUS.
(a) ISSUE DATE; CHOICE OF LAW; VENUE; JURISDICTION; NO JURY
TRIAL. THE PROVISIONS OF THIS WARRANT SHALL BE CONSTRUED AND SHALL BE
GIVEN EFFECT IN ALL RESPECTS AS IF IT HAD BEEN ISSUED AND DELIVERED BY
THE COMPANY ON THE DATE HEREOF. THIS WARRANT SHALL BE BINDING UPON ANY
SUCCESSORS OR ASSIGNS OF THE COMPANY. THIS WARRANT WILL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, EXCEPT FOR MATTERS ARISING UNDER THE SECURITIES ACT,
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS SITTING IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK IN
CONNECTION WITH ANY DISPUTE ARISING UNDER THIS WARRANT AND HEREBY
WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION,
INCLUDING ANY OBJECTION BASED ON FORUM NON
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CONVENIENS, TO THE BRINGING OF ANY SUCH PROCEEDING IN EITHER OF SUCH
JURISDICTIONS. EACH PARTY XXXXXX AGREES THAT IF THE OTHER PARTY TO THIS
WARRANT OBTAINS A JUDGMENT AGAINST IT IN SUCH A PROCEEDING, THE PARTY
WHICH OBTAINED SUCH JUDGMENT MAY ENFORCE SAME BY SUMMARY JUDGMENT IN
THE COURTS OF ANY COUNTRY HAVING JURISDICTION OVER THE PARTY AGAINST
WHOM SUCH JUDGMENT WAS OBTAINED, AND EACH PARTY HEREBY WAIVES ANY
DEFENSES AVAILABLE TO IT UNDER LOCAL LAW AND AGREES TO THE ENFORCEMENT
OF SUCH A JUDGMENT. EACH PARTY TO THIS WARRANT IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY
AT ITS ADDRESS IN ACCORDANCE WITH SECTION 19(C). NOTHING HEREIN SHALL
AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. EACH PARTY WAIVES ITS RIGHT TO A TRIAL BY JURY.
(b) MODIFICATION AND WAIVER. This Warrant and any provisions
hereof may be changed, waived, discharged or terminated only with the written
approval of the holder hereof. Any amendment effected in accordance with this
paragraph shall be binding upon the Holder, each future holder of this Warrant
and the Company. No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
(c) NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the Holder or future holders hereof or the
Company shall be personally delivered or facsimiled or shall be sent by
reputable overnight courier or certified or registered mail, postage prepaid, to
the Holder or each such holder at its address as shown on the books of the
Company or to the Company at the address set forth in the Purchase Agreement.
All notices under this Warrant shall be deemed to have been given (i) in the
case of personal delivery or facsimile, on the date of such delivery, (ii) in
the case of mailing, on the fifth business day following the date of such
mailing, and (iii) in the case of overnight courier, upon receipt. A party may
from time to time change the address to which notices to it are to be delivered
or mailed hereunder by notice in accordance with the provisions of this Section
18(c).
(d) SEVERABILITY. Whenever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this Warrant
in such jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Warrant shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
(e) NO IMPAIRMENT. The Company shall not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, 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 shall at all times in
11
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 Warrant holder against impairment. Without limiting the generality of the
foregoing, the Company (a) shall not increase the par value of any Warrant
Shares above the amount payable therefor on such exercise, and (b) shall take
all such action as may be reasonably necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares on the exercise of this Warrant.
(f) SPECIFIC PERFORMANCE. The Company acknowledges and agrees
that irreparable damage would occur in the event that the Company failed to
perform any of the provisions of this Warrant in accordance with its specific
terms. It is accordingly agreed that the Holder shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Warrant and to enforce specifically the terms and provisions hereof, this being
in addition to any other remedy to which the Holder may be entitled by law or
equity.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: March 20, 2001
OPEN MARKET, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
ATTEST:
Sign: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------
Print Name: Xxxxxxxxx Xxxxxxxx
13
NOTICE OF EXERCISE
(To be executed by the Holder to exercise the right
to purchase shares of Common Stock under the foregoing Warrant)
To: OPEN MARKET, INC.
RE: COMMON STOCK PURCHASE WARRANT issued on March ___, 2001 to
__________________ to purchase shares of Common Stock (the "Warrant")
(1) CHECK ONE:
_____ (a) The undersigned hereby elects to purchase ________ shares of Common
Stock of OPEN MARKET, INC. pursuant to Section 4(a) of the Warrant, and
will tender payment of the purchase price in full, together with all
applicable transfer taxes payable pursuant to the Warrant, if any. OR
_____ (b) The undersigned hereby exercises the Warrant with respect ________
shares of Common Stock of OPEN MARKET, INC. on a cashless, "net basis"
pursuant to Section 4(b) of the Warrant, and hereby instructs the
Company to deliver _______ shares of Common Stock to the holder of the
Warrant based on a Fair Market Value of $____.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------
Name
--------------------------------
Address
--------------------------------
(3) Please issue a new Warrant for the unexercised portion of the attached
Warrant in the name of the undersigned or in such other name as is
specified below:
-------------------------------
Name
--------------------------------
Address
--------------------------------
(4) The undersigned represents as of the date hereof that, after giving
effect to the exercise of this Warrant pursuant to this Notice of
Exercise, the undersigned will remain in compliance with Section 17(b) of
the Warrant and not exceed the "Restricted Ownership Percentage"
contained in Section 17(a) of the Warrant.
Dated:_____________________ Print Name of Holder:
____________________________________
(Sign) By:__________________________
Print Name:
Print Title:
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply the required information.
Do not use this form to exercise the Warrant.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of OPEN MARKET, INC. to
which the within Warrant relates and appoints ________________ attorney to
transfer said right on the books of OPEN MARKET, INC. with full power of
substitution in the premises.
Dated:
-------------------
-------------------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of the Warrant)
--------------------------------------------------
Address of Transferee
--------------------------------------------------
--------------------------------------------------
In the presence of:
------------------------
