Exhibit 4.3
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT,
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS.
e-centives, Inc.
COMMON STOCK PURCHASE WARRANT
---------------------------------------------
This warrant (this "WARRANT") certifies that, for good and
valuable consideration, e-centives, Inc. a Delaware corporation (the "COMPANY"),
grants to Inktomi Corporation, a Delaware corporation, or its permitted assigns
(the "WARRANTHOLDER"), the right to subscribe for and purchase from the Company,
at any time during the Exercise Period (as defined herein), such portion of up
to One Million Eight Hundred Sixty Thousand Five Hundred Seventy Seven
(1,860,577) Shares ("BASE AMOUNT") of Common Stock (as defined below) which have
become Vested Warrant Shares, as determined in accordance with Section 2.4 of
this Warrant, at the exercise price per share of $5.51 (the "EXERCISE PRICE"),
all subject to the terms, conditions and adjustments herein set forth. The
number of Warrant Shares and the Exercise Price are subject to adjustment as
provided in ARTICLES III and VI.
I. DEFINITIONS
1.1 DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"AFFILIATE" with respect to any Person, shall mean:
any other Person that directly or indirectly, controls, is controlled by, or is
under common control with, such Person.
"ASSET PURCHASE AGREEMENT" means the Asset Purchase
Agreement dated as of January 18, 2001 between the Company and the initial
Warrantholder.
"BASE AMOUNT" has the meaning set forth in the
preamble above.
"BOARD OF DIRECTORS" means the Board of Directors of
the Company.
"BUSINESS DAY" means any day other than a Saturday,
Sunday or a day on which national banks are authorized by law to close in the
State of Maryland.
"CAPITAL EVENT" means: (a) any sale, lease, exchange
or other transfer of all or substantially all of the property, assets or
business of the Company; (b) any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary; (c) any redemption of all of
outstanding Common Stock; and (d) any merger, consolidation or other business
combination to which the Company is a party and in which it is not the
continuing, public corporation.
"COMMON STOCK" means the common stock, par value
$0.01 per share, of the Company.
"EXCHANGE ACT" mean the Securities Exchange Act of
1934, as amended from time to time.
"FAIR MARKET VALUE" means, with respect to a share of
Common Stock on any date, (a) the average of the Closing Prices (as defined
below) over the five (5) consecutive trading days ending on the date that is two
(2) trading days prior to the date as of which the Fair Market Value is being
determined, or (b) if there shall not then be a public market for the Common
Stock, the fair market value per share of Common Stock as determined by the
Board of Directors in good faith exercising its fiduciary duties. For purposes
of this Agreement, a "Closing Price" means, for any day, the average of the high
and low closing prices of the Common Stock on such day (i) as reported on the
Nasdaq National Market ("NASDAQ") system, if the Common Stock is then listed on
Nasdaq, or (ii) if the Common Stock is not then so listed, but is then listed on
SWX New Market of the SWX Swiss Exchange, as reported by the SWX New Market of
the SWX Swiss Exchange, after applying the CHF-USD exchange rate, as determined
at 5 p.m., Swiss time, on such day, by swissfirst Bank, AG.
"GOVERNMENTAL AUTHORITY" means any foreign, federal,
state, local or other governmental authority or regulatory body having
jurisdiction over the Company, its Affiliates or the Warrantholder.
"OUTSTANDING" means, when used with reference to
Common Stock, on any date, all issued shares of Common Stock on such date,
except shares then owned or held by or for the account of the Company, and shall
include all shares issuable in respect of outstanding scrip or any certificates
representing fractional interests in shares of Common Stock.
"PERSON" means any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, governmental authority or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time.
"VESTED WARRANT SHARES" means the shares of Common
Stock issued or issuable upon exercise of this Warrant.
"WARRANT PERIOD" means the twelve (12) month time
period starting from the Closing Date (as defined in the Asset Purchase
Agreement) and ending on the one (1) year anniversary of the Closing Date.
II. EXERCISE OF WARRANT
2.1 EXERCISE PERIOD. The Warrantholder may exercise this
Warrant on any Business Day starting on the day after the end of the Warrant
Period and ending at 5:00 p.m., Eastern Standard Time, on January 18, 2006 (the
"EXERCISE PERIOD"), for all or any part of the then Vested Warrant Shares (but
not as to any shares other than the Vested Warrant Shares).
2.2 EXERCISE PROCEDURE. To exercise this Warrant, the
Warrantholder shall deliver to the Company at its address set forth in SECTION
10.5: (a) payment of the aggregate Exercise Price in the manner provided in
SECTION 2.3 (as computed by multiplying (A) the Exercise Price as of such date
by (B) the number of shares of Common Stock for which the Warrantholder is
exercising this Warrant at such time); (b) a completed and properly executed
Notice of Exercise in substantially the form attached hereto as ANNEX I; and (c)
this Warrant. Upon receipt of the aggregate Exercise Price and the required
deliverables pursuant to the preceding sentence, the Company shall, within five
(5) Business Days
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thereafter, subject to receipt of any required regulatory approvals (including
expiration of any required waiting period), deliver to the Warrantholder duly
executed certificate(s) representing the aggregate number of shares of Common
Stock issuable upon such exercise, together with cash in lieu of any fraction of
a Warrant Share as provided in SECTION 2.7. Such stock certificate(s) shall be
in such denominations and registered in the name(s) set forth in the Notice of
Exercise. If this Warrant shall have been exercised in part, the Company shall
deliver to the Warrantholder a new warrant evidencing the rights of the
Warrantholder to purchase the remaining Warrant Shares issuable (which shall in
all other respects be identical to this Warrant).
2.3 PAYMENT OF EXERCISE PRICE. The Exercise Price may be
payable hereunder by the delivery by certified check or by wire transfer of
immediately available funds to the account of the Company of an amount equal to
the Exercise Price. The Warrantholder may elect to exercise the Warrant in a
cashless exercise in lieu of payment of an amount equal to the Exercise Price,
pursuant to which the Warrantholder will receive that number of shares of Common
Stock equal to the quotient obtained by dividing (A-B)(C) by A where:
(A) = the Fair Market Value of one share of Common Stock on
the date that the Warrantholder delivers the Notice of
Exercise;
(B) = the Exercise Price for one share of Common Stock under
this Warrant (as adjusted to the date of such calculation);
and
(C) = the number of Warrant Shares issuable upon exercise of
this Warrant or, if only a portion of the Warrant is being
exercised, the number of Warrant Shares to be acquired as set
forth in the Notice of Exercise (at the date of such
calculation).
If the above calculation results in a negative number, then no Warrant Shares
shall be issued or issuable upon exercise of this Warrant.
2.4 VESTED WARRANT SHARES. The number of Vested Warrant Shares
shall be equal to the Base Amount multiplied by the Vesting Multiplier
determined as provided below in this SECTION 2.4. (For purposes of
determining the Vesting Multiplier under this SECTION 2.4, "REVENUE" shall be
determined in accordance with the procedures and methods set forth in Annex
II attached hereto.)
(i) if Revenue achieved during the Warrant Period is
$17,500,000 or greater but is less than $20,000,000, the Vesting Multiplier
shall equal 1/3 (33-1/3%).
(ii) if Revenue achieved during the Warrant Period is
$20,000,000 or greater but is less than $25,000,000, the Vesting Multiplier
shall equal 2/3 (66-2/3%).
(iii) if Revenue achieved during the Warrant Period
is $25,000,000 or greater, the Vesting Multiplier shall equal 1 (100%).
(iv) if Revenue achieved during the Warrant Period is
less than $17,500,000, the Vesting Multiplier shall equal 0 (0%).
Any determination of whether the criteria for shares becoming Vested Warrant
Shares, and which level of Revenue has been achieved, shall be made in
accordance with this Section 2.4, Annex II attached hereto and Section 2(i) of
the Asset Purchase Agreement.
2.5 EXERCISE UPON CERTAIN CONDITIONS. The Warrantholder may
immediately exercise this Warrant and the number of Vested Warrant Shares shall
be equal to the Base Amount (as adjusted pursuant to Section III below) if the
Company (i) sells or otherwise disposes of substantially all
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of the Acquired Assets (as defined in the Asset Purchase Agreement); or (ii)
effects a fundamental change in the operation of the Commerce Product Business
from the way the Commerce Product Business was conducted at Closing (as defined
in the Asset Purchase Agreement).
2.6 PAYMENT OF TAXES. The Company shall pay all stamp taxes
and other similar charges with respect to the issue or delivery of Common Stock
hereunder. The Company shall not be required to pay any transfer tax or other
similar charge imposed in connection with the issue of any stock certificate in
any name other than that of the Warrantholder, and in such case the Company
shall not be required to issue or deliver any stock certificate until such tax
or other charge has been paid or it has been established to the reasonable
satisfaction of the Company that no such tax or other charge is due.
2.7 FRACTIONAL SHARES. The Company shall not be required to
issue any fractional shares of Common Stock upon exercise of this Warrant. In
lieu of any fractional share to which the Warrantholder would otherwise be
entitled upon exercise of this Warrant, the Company shall make a cash payment in
an amount equal to the product of (a) the Fair Market Value per share of Common
Stock on the date of exercise MULTIPLIED by (b) the fraction of a share.
III. ADJUSTMENTS
3.1 INTRODUCTION. The number of Warrant Shares and the
Exercise Price of this Warrant shall be subject to adjustment from time to time
as set forth in this ARTICLE III. The Company shall give the Warrantholder
notice of any event described below which requires an adjustment pursuant to
this ARTICLE III.
3.2 ADJUSTMENT OF EXERCISE PRICE AND WARRANT SHARES FOR STOCK
DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time during the Exercise
Period the Company shall: (a) declare a dividend payable in, or other
distribution to all holders of Outstanding shares of Common Stock of, Common
Stock; (b) subdivide or split its Outstanding shares of Common Stock into a
larger number of shares of Common Stock; or (c) combine or reclassify its
Outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then: (i) the number of shares of Common Stock for which this Warrant is
exercisable upon the occurrence of any such event (including the Base Amount and
Unvested Warrant Shares) shall be adjusted to equal the product of (A) the
number of such shares of Common Stock without giving effect to such event
MULTIPLIED by (B) a fraction, the numerator of which is the number of
Outstanding shares of Common Stock after giving effect to such event and the
denominator of which is the number of Outstanding shares of Common Stock without
giving effect to such event; and (ii) the Exercise Price shall be adjusted to
equal the product of (A) the Exercise Price without giving effect to such
adjustment MULTIPLIED by (B) a fraction, the numerator of which is the number of
Warrant Shares without giving effect to such event and the denominator of which
is the number of Warrant Shares after giving effect to such event.
3.3 ADJUSTMENT OF EXERCISE PRICE AND WARRANT SHARES UPON
CERTAIN DISTRIBUTIONS. If, at any time during the Exercise Period, the Company
shall distribute to all holders of shares of Common Stock cash, evidences of
indebtedness of the Company or another issuer, securities of the Company or
another issuer, or other assets or rights or warrants to subscribe for or
purchase securities of the Company, in each case excluding distributions that
result in adjustment pursuant to SECTION 3.2 (the "DISTRIBUTED ITEMS"), then the
Exercise Price shall be adjusted according to the following formula:
Exercise Price = Exercise Price x (Fair Market Value of a Warrant Share - FMV of Distributed Items)
-----------------------------------------------------------------------------------
Fair Market Value of a Warrant Share
For purposes of this SECTION 3.3, the term "FMV OF DISTRIBUTED
ITEMS" shall mean the fair market value of the Distributed Items to which the
holder of one share of Common Stock would be entitled to receive in such
distribution, as determined by the Board of Directors in good faith exercising
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its fiduciary duties. Upon the occurrence of an adjustment of the Exercise Price
pursuant to this SECTION 3.3, the number of Warrant Shares shall be adjusted
according to the following formula:
Warrant Shares = Warrant Shares x Exercise Price (without adjustment)
----------------------------------------------------
Exercise Price (giving effect to adjustment)
3.4 WHEN ADJUSTMENTS ARE TO BE MADE. Adjustments pursuant to
this ARTICLE III shall be made whenever and as often as any event necessitating
an adjustment shall occur, except that any such adjustment may be postponed
until the earlier of: (a) three (3) years following the date of such event; or
(b) the date of exercise of this Warrant, if such adjustment either by itself or
together with other such adjustments not previously made would add or subtract
less than one percent (1%) of the number of Warrant Shares for which this
Warrant is exercisable immediately prior to the making of such adjustment. Any
such postponed adjustment shall be carried forward and made on the earliest of:
(x) the date of exercise of this Warrant; (y) the date on which such postponed
adjustment, together with any other required but unmade adjustments, would
result in an adjustment of sufficient magnitude to be required to be made
pursuant to this SECTION 3.4; or (z) three (3) years following the date of the
event necessitating the adjustment. For the purpose of this SECTION 3.4, an
event necessitating an adjustment shall be deemed to have occurred at the close
of business on the date of its occurrence.
IV. NOTICES TO THE WARRANTHOLDER
4.1 NOTICE OF CAPITAL EVENT. If, at any time during the
Exercise Period, there shall be proposed a Capital Event, then the Company shall
promptly deliver to the Warrantholder a certificate executed by an officer of
the Company: (a) setting forth, in reasonable detail, the circumstances
surrounding the Capital Event; (b) the time, if any such time is to be fixed, as
of which the holders of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such Capital
Event; and (c) describing the number and kind of other shares of stock or other
securities or property for which the warrant of the Successor (as defined in
SECTION 6.1) issued to the Warrantholder in exchange for this Warrant upon such
Capital Event pursuant to SECTION 6.1 will be exercisable.
4.2 NOTICE OF ADJUSTMENTS. Whenever an event necessitating an
adjustment to this Warrant pursuant to ARTICLE III occurs (regardless of whether
such adjustment may be postponed pursuant to SECTION 3.4), the Company shall
promptly deliver to the Warrantholder a certificate executed by an officer of
the Company: (a) setting forth, in reasonable detail, the event necessitating
such adjustment and the method by which such adjustment was calculated; and (b)
specifying the number of Warrant Shares and the Exercise Price, in each case
giving effect to the adjustment.
4.3 MAINTENANCE OF OFFICERS' CERTIFICATES. The Company shall
keep at its office located at the address set forth in SECTION 11.5 copies of
all officers' certificates provided to the Warrantholder pursuant to SECTIONS
4.1 and 4.2 and cause the same to be available for inspection at said office
during normal business hours by the Warrantholder or any prospective purchaser
of this Warrant designated by the Warrantholder.
V. RESTRICTIONS ON TRANSFER
5.1 RESTRICTIONS ON TRANSFER. The Warrantholder, by its
acceptance of this Warrant, agrees to be bound by the provisions of this ARTICLE
V and acknowledges and confirms that this Warrant and any Warrant Shares issued
upon exercise of all or part of this Warrant have not been registered under the
Securities Act or any applicable state securities laws, and may not be sold or
transferred except in compliance with and subject to the Securities Act and such
state securities laws. Unless and until this Warrant and such Warrant Shares
have been registered under the Securities Act and such state securities laws,
the Company may require, as a condition to effecting any sale or transfer of
this Warrant or such
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Warrant Shares on the books of the Company, an opinion of counsel reasonably
satisfactory to the Company to the effect that an exemption from registration
under the Securities Act and such state securities laws is available for the
proposed transfer or assignment; PROVIDED, HOWEVER, that if the Warrant Shares
have been held by the Warrantholder for at least one (1) year and are proposed
to be sold in compliance with Rule 144 under the Securities Act, no such opinion
of counsel shall be required. Any purported sale or transfer of this Warrant
and/or such Warrant Shares shall be null and void unless made in compliance with
the conditions set forth in this ARTICLE V. Except as provided in SECTION 5.3,
(a) this Warrant and any warrant of the Company issued in exchange or
replacement for this Warrant shall be stamped or otherwise imprinted with a
legend in substantially the form set forth on the cover of this Warrant; and (b)
each stock certificate for Warrant Shares issued upon the exercise of this
Warrant and each stock certificate issued upon the transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend substantially to
the same effect.
5.2 TERMINATION OF RESTRICTIONS. The restrictions imposed by
SECTION 5.1 upon the transferability of this Warrant and the Warrant Shares
shall terminate: (a) when and so long as this Warrant or such Warrant Shares
shall have been effectively registered under the Securities Act and transferred
in compliance therewith; or (b) when the Company shall have received an opinion
of counsel reasonably satisfactory to it that this Warrant or such Warrant
Shares may be transferred without registration thereof under the Securities Act;
PROVIDED, HOWEVER, that if the Warrant or the Warrant Shares have been held by
the Warrantholder for at least one (1) year and are proposed to be sold in
compliance with Rule 144 under the Securities Act, no such opinion of counsel
shall be required. Whenever the legend requirements imposed by SECTION 5.1 shall
terminate as to this Warrant or any Warrant Shares, the holder of this Warrant
or such Warrant Shares shall be entitled to receive from the Company, at the
Company's expense, a new warrant or a new stock certificate representing such
Warrant Shares, as the case may be, not bearing the restrictive legend described
in SECTION 5.1.
5.3 LOCK-UP RESTRICTIONS. The Warrant and the Warrant Shares
are subject to restrictions on transfer set forth in the lock-up agreement to be
entered into pursuant to Section 7(a)(vii) and Exhibit D of the Asset Purchase
Agreement.
5.4 COMPLIANCE WITH SECURITIES LAWS. The Warrantholder, by
acceptance hereof, represents to the Company that this Warrant and any Warrant
Shares purchased upon exercise of this Warrant are being acquired solely for the
Warrantholder's own account and not as a nominee for any other party, and for
investment, and that the Warrantholder will not offer, sell or otherwise dispose
of this Warrant or any such Warrant Shares except under circumstances that will
not result in a violation of the Securities Act or any applicable state
securities laws. Upon exercise of all or part of this Warrant, the Warrantholder
shall, if requested by the Company, confirm in writing, in a form reasonably
satisfactory to the Company, the foregoing representations and other
representations the Warrantholder's status as an accredited and sophisticated
investor (as defined in applicable rules and regulations under the Securities
Act) as may be reasonably requested by the Company.
5.5 TRANSFER PROCEDURE. Subject to compliance with the other
provisions of this ARTICLE V, transfer of this Warrant, in whole or in part,
shall occur upon surrender of this Warrant at the principal office of the
Company at the address set forth in SECTION 10.5, together with a duly executed
written assignment of this Warrant and funds sufficient to pay any transfer
taxes payable upon the making of such transfer and, if required, an opinion of
counsel concerning the compliance of such transfer with the Securities Act and
applicable state securities laws. Upon receipt of such items, the Company shall
execute and deliver a new warrant or warrants in the name of the assignee or
assignees and in the denomination(s) specified in such instrument of assignment,
and shall issue to the assignor a new warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be cancelled. The
assignor shall bear all expenses reasonably incurred by the Company in
connection with such assignment.
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5.6 MAINTENANCE OF TRANSFER BOOKS. The Company agrees to
maintain, at the principal office of the Company at the address set forth in
SECTION 10.5, books or records for the registration and the registration of
transfer of this Warrant or any warrant of the Company issued in exchange for
this Warrant.
VI. CAPITAL EVENT
6.1 ISSUANCE OF NEW WARRANT IN SUCCESSOR UPON CAPITAL EVENT.
Upon the consummation of any Capital Event, the successor or acquiring Person
(the "SUCCESSOR") to or in such Capital Event shall issue to the Warrantholder a
new warrant of the Successor which shall include all material terms of this
Warrant, including without limitation the provisions of Section 2.4 regarding
vesting and exercise, except that such warrant shall provide for the purchase
(upon satisfaction of the relevant vesting criteria under Section 2.4), at the
Exercise Price per share, instead of the number of shares of Common Stock
issuable hereunder, of the kind and amount of shares of common stock or other
securities or cash or other property of the Successor that would be received by
a holder of such number of shares of Common Stock in such Capital Event.
6.2 SUCCESSIVE CAPITAL EVENTS. The provisions of this ARTICLE
VI shall apply to successive Capital Events.
VII. NECESSARY ACTIONS
The Company will: (a) use its commercially reasonable efforts
to obtain all such authorizations, approvals, exemptions or consents from any
Governmental Authority having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under this Warrant (including, without
limitation, making all necessary filings with such Governmental Authorities);
(b) take all necessary steps (including, without limitation, making appropriate
amendments to its certificate of incorporation) to ensure that the Company has
authorized a sufficient number of authorized but unissued shares of its common
stock to provide for the issuance of the Warrant Shares; (c) reserve from such
authorized but unissued shares of common stock a sufficient number of shares to
provide for the issuance of the Warrant Shares upon the exercise of this
Warrant; and (d) take all actions as may be necessary or appropriate to ensure
that the Company may validly and legally issue fully paid and non-assessable
shares of Common Stock upon the exercise of this Warrant that are not subject to
any preemptive rights and are free from all taxes, liens, security interests,
charges, and other encumbrances with respect to the issuance thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issuance.
VIII. SUPPLYING INFORMATION
8.1 COOPERATION. The Company shall cooperate with the
Warrantholder and each holder of Warrant Shares in supplying such information as
may be reasonably necessary for such holders to complete and file any
information reporting forms presently or hereafter required by the Securities
Exchange Commission and any state securities agency as a condition to the
availability of an exemption under the Securities Act and any applicable state
securities law for the sale of this Warrant or any Warrant Shares.
8.2 INFORMATION. During the Exercise Period, the Company shall
provide to the Warrantholder copies of all reports, filings and financial
statements the Company provides to its stockholders generally, at the same time
as such materials are provided to the stockholders.
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IX. LOSS OR MUTILATION
On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (a) in the
case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company; or (b) in the case
of mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new warrant of
like tenor and amount.
X. MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Warrant, together with the
relevant provisions of the Asset Purchase Agreement referred to herein or which
expressly govern the interpretation or exercise of rights and obligations under
this Warrant, constitutes the entire agreement between the Company and the
Warrantholder with respect to the Warrant.
10.2 NONWAIVER. No course of dealing or any delay or failure
to exercise any right hereunder on the part of the Warrantholder shall operate
as a waiver of such right or otherwise prejudice the Warrantholder's rights,
powers or remedies.
10.3 BINDING EFFECT; NO THIRD-PARTY BENEFICIARIES. This
Warrant shall inure to the benefit of and shall be binding upon the Company and
the Warrantholder and their respective successors and permitted assigns. Nothing
in this Warrant, expressed or implied, is intended to or shall confer on any
person other than the Company and the Warrantholder, or their respective
successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
10.4 SECTION AND OTHER HEADINGS. The section and other
headings contained in this Warrant are for reference purposes only and shall not
be deemed to be a part of this Warrant or to affect the meaning or
interpretation of this Warrant.
10.5 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, facsimile
transmission, courier service, overnight mail or personal delivery:
WITH A COPY (WHICH SHALL NOT CONSTITUTE
IF TO THE COMPANY: NOTICE) TO:
----------------- ----------
e-centives, Inc. Xxxxx & Xxxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx 000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxx, X.X. 00000
Attn: General Counsel Attn: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
IF TO THE WARRANTHOLDER: WITH A COPY (WHICH SHALL NOT CONSTITUTE
------------------------ NOTICE) TO:
----------
Inktomi Corporation Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxxx Xxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000 Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel Attn: Xxxxxx X. Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
sent by facsimile transmission. Any party may by notice given in accordance with
this SECTION 10.5 designate another address or Person for receipt of notices
hereunder.
10.6 SEVERABILITY. Whenever possible, each provision of this
Warrant will 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 will not affect
any other provision of this Warrant or the validity, legality or enforceability
of this Warrant in any other jurisdiction. In such event, this Warrant will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
10.7 GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS WARRANT AND THE ISSUANCE OF SECURITIES
HEREUNDER WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF CALIFORNIA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF CALIFORNIA; PROVIDED HOWEVER, THAT MATTERS
OF CORPORATE LAW (INCLUDING WITHOUT LIMITATION MATTERS RELATING TO THE ISSUANCE
OF SHARES) SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
DELAWARE
GENERAL CORPORATION LAW.
10.8 RIGHTS OR LIABILITIES AS STOCKHOLDER. The Warrantholder
shall be deemed to have become a holder of record of the shares of Common Stock
issuable under SECTION 2.2 as of the date on which all required deliverables
pursuant to SECTION 2.2 have been received by the Company. Until such time the
Warrantholder shall not have any voting rights or other rights or liabilities of
a stockholder of the Company with respect to the Common Stock issuable
hereunder.
10.9 AMENDMENT. No amendment or waiver of any provision of
this Warrant shall be effective without the prior written consent of the Company
and the Warrantholder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
E-CENTIVES, INC.
By: /s/ XXXXXX XXXXXX
-------------------------
Name: Xxxxxx Xxxxxx
-------------------------
Title: Chairman and Chief Executive
Officer
-------------------------
Dated: March 28, 2001
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ANNEX I
NOTICE OF EXERCISE
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the
right represented by this Warrant to purchase _________ shares of Common Stock,
and herewith tenders to the Company as payment for such shares either (a) the
amount of $__________ or (b) ________ shares of Common Stock, in accordance with
the terms of this Warrant. The undersigned requests that a certificate for such
shares be registered in the name of the undersigned and that such certificates
be delivered to the undersigned's address below.
The undersigned represents that it is an accredited and
sophisticated investor (as defined in applicable rules and regulations under the
Securities Act of 1933, as amended), and that it is acquiring such shares of
Common Stock for its own account for investment and not with a view to or for
sale in connection with any distribution thereof.
Dated: __________________________
Signature ________________________________
________________________________
(Print Name)
________________________________
(Xxxxxx Xxxxxxx)
________________________________
(City) (State) (Zip Code)
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ANNEX II
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DETERMINATION OF REVENUE
This Annex II contains the criteria used to determine the Vesting
Multiplier for purposes of Section 2.4 of the Warrant issued by e-centives,
Inc., a
Delaware corporation (the "COMPANY"), in favor of Inktomi Corporation, a
Delaware corporation (the "WARRANTHOLDER"), to which this Annex II is attached.
Any capitalized term not defined in this Annex II shall have the meaning
assigned to the term in the Warrant. For the Vesting Multiplier to be greater
than 0, both the relevant Revenues Test and the Product Performance Test set
forth below must be met during the Warrant Period. Notwithstanding anything
herein to the contrary, the Company agrees to operate the Business in good faith
and will take no action to circumvent the Earnout.
I. REVENUES TEST
A. The term "BUSINESS" as used in this Annex II means the business and
assets of the Commerce Product Business unit acquired pursuant to the Asset
Purchase Agreement. Except as specifically provided in this Annex II, the
Business shall not include any other business or assets of any other business
entity owned or acquired by Company during the Warrant Period, unless otherwise
agreed in writing by the Company and the Warrantholder.
B. For purposes of this Annex II, revenue ("REVENUE") of the Business
for the Warrant Period shall be determined in the following manner. All
determinations of Revenue shall be made in accordance with GAAP, applied in a
manner consistent with the financial statements of the Company, and shall be net
of any returns or bad debt expense.
1. The Company shall determine the revenues from the licensing
or sale of any of the products or functionality included in the Business
acquired from the Warrantholder (the "ACQUIRED PRODUCTS/FUNCTIONALITY"), and
offered by the Company on a stand-alone basis. All of these amounts shall be
included in "Revenue."
2. In the case of Acquired Products/Functionality offered by
the Company as incorporated into or in conjunction with other products or
services of the Company such that the revenues solely attributable to the
Acquired Products/Functionality cannot readily be determined by the Company
("COMBINED PRODUCTS/FUNCTIONALITY"), the Company shall make a reasonable
allocation of the revenues realized from the licensing or sale of Combined
Products/Functionality between the Acquired Products/Functionality and other
products or services of the Company based upon the respective functions
performed by each, the number of lines of software code and/or other appropriate
method applicable to a particular product or functionality, in each case acting
in good faith and consistently with other similar allocations made by the
Company hereunder or for other purposes. "Revenue" shall include the portion of
the net revenues from the licensing or sale of Combined Products/Functionality
so allocated to the Acquired Products/Functionality.
3. In the case of each contract entered into within the
Warrant Period, where the Company has a legal right to receive revenue from the
licensing or sale of Acquired Products/Functionality or Combined
Products/Functionality after the Warrant Period, but where such right is not
considered revenue for the Warrant Period under applicable GAAP revenue
recognition principles ("UNREALIZED CONTRACTS"), the Company shall determine the
applicable revenues (under paragraph 1 or 2 above, as applicable) which it is
legally entitled to receive under such Unrealized Contracts without further
action on the part of the customer
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(such as the exercise of any options to purchase products beyond those legally
committed to in the contract). The Company shall then (i) apply a reasonable
discount to such revenues to reflect the fact that they will be received after
the end of the applicable period, which discount shall be based on the Company's
cost of funds at such time (or, if not determinable, the cost of funds for
similarly situated companies as reasonably determined by the Company's financial
adviser), (ii) reduce such revenues by a probability factor that reflects any
applicable uncertainties regarding the Company's ability to perform the
Unrealized Contract and become entitled to the revenues and (iii) reduce such
revenues by a probability factor that reflects any applicable uncertainties or
externalities regarding the ability of a customer who is a party to such
Unrealized Contract to perform the Unrealized Contract and entitle the Company
to realize revenues, it being understood that all of the foregoing reductions
shall be multiplicative in application, and not additive. The resulting amount
(the "CONTRACT VALUE") for each Unrealized Contract shall be included in
"Revenue."
4. A computation of the Revenues for the applicable period
will be prepared by the Company in the form of a report in accordance with the
foregoing principles and delivered to the Warrantholder within forty-five (45)
days after completion of the Warrant Period.
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