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EXHIBIT 4.2
THIS WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK (THE "UNDERLYING STOCK")
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. NEITHER THIS WARRANT NOR THE UNDERLYING STOCK, NOR ANY
PORTION THEREOF OR INTEREST THEREIN, MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THE SAME IS REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AS TO FORM AND SUBSTANCE, SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
WARRANT TO PURCHASE COMMON STOCK
OF
FUTURELINK CORP.,
a Delaware corporation
Void after May 31, 2006
This certifies that XXXXX X. XXXXXXX, or registered assigns ("Holder"),
in consideration of payment in the amount of $750 and other good and valuable
consideration, receipt of which is hereby acknowledged, is entitled, subject to
the terms set forth below, to purchase from XXXX X. XXXXXX, as Trustee of THE
XXXXXX TRUST, dated July 2, 1997 ("Grantor") 1,800,000 fully paid and
nonassessable shares of the Common Stock (the "Common Stock") of FUTURELINK
CORP., a Delaware corporation (the "Company"). The Exercise Price (as defined
below) is set forth and subject to adjustment as provided below. The term
"Warrants" as used herein shall include this warrant and any warrants delivered
in substitution or exchange herefor as provided herein.
1. Term.
This Warrant shall become exercisable on June 1, 2001, and shall expire May
31, 2006, subject to earlier termination as set forth in Section 7(e) hereof.
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2. Exercise Price.
The price to be paid for Common Stock upon exercise of this Warrant or any
part thereof (referred to herein as the "Exercise Price") shall be $5.50 per
share, subject to adjustment as set forth in Section 7 hereof.
3. Exercise.
Holder may exercise this Warrant in whole at any time or in part from time
to time, on any business day after June 1, 2001, but prior to the time this
Warrant terminates as provided herein, by delivery, of:
(a) this Warrant,
(b) the Subscription Form attached hereto as Exhibit A duly executed and
specifying the number of shares of Common Stock to be purchased hereunder, and
(c) payment of the amount (the "Purchase Price") obtained by multiplying (i)
the number of shares of Common Stock to be purchased by (ii) the Exercise Price.
The Purchase Price shall be paid in cash or by certified or official bank check
payable to the order of Grantor, in the amount of the Purchase Price.
In lieu of exercising this Warrant by payment of cash as set forth above,
Holder may elect to receive shares of Common Stock by surrender of this Warrant,
in which event Grantor shall transfer to Holder the number of shares of Common
Stock computed using the following formula:
X = Y (A - B)
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A
Where: "X" = the number of shares of Common Stock to be transferred to
Holder
"Y" = the number of shares of Common Stock purchasable under
this Warrant or, if only a portion of the Warrant is being
exercised, the number of shares for which the Warrant is
being exercised (at the date of such calculation)
"A" = the Market Price of one share of the Common Stock (at the
date of such calculation)
"B" = Exercise Price (as may be adjusted to the date of such
calculation)
"Market Price" = As to any security, the Price (as defined
below) of a security averaged over a period of 10 days
consisting of the day as of which the Market Price is being
determined and the nine consecutive
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business days prior to such day; provided, that if such security
is listed on any domestic securities exchange the term "business
days" as used in this sentence means business days on which such
exchange is open for trading. The "Price" of any security shall
be defined as the average of the closing prices of such
security's sales on all domestic securities exchanges on which
such security may at the time be listed; or, if there have been
no sales on any such exchange on a given day, the average of the
highest bid and lowest asked prices on all such exchanges at the
end of such day; or, if on a given day such security is not so
listed, the average of the representative bid and asked prices
quoted in the Nasdaq Stock Market as of 4:00 P.M., EST or EDST,
as applicable, on such day; or, if on a given day such security
is not quoted in the Nasdaq Stock Market, the average of the
highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization.
This Warrant may be exercised for less than the full number of shares of
Common Stock which are issuable upon exercise of this Warrant. Upon such partial
exercise, this Warrant shall be surrendered, and a new Warrant of the same tenor
and for purchase of the number of shares not purchased upon such exercise shall
be issued by Grantor to Holder.
A Warrant shall be deemed to have been exercised immediately prior to the
close of business on the date of its surrender for exercise as provided above,
and the person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of such shares of
record as of the close of business on such date. As soon as practicable on or
after such date, Grantor shall cause to be issued and delivered to the person or
persons entitled to receive the same a certificate or certificates for the
number of full shares of Common Stock issuable upon such exercise.
4. Fractional Shares.
No fractional shares shall be purchased upon the exercise of the Warrant.
The number of shares of Common Stock to be purchased shall be rounded to the
nearest whole share.
5. Securities Law Requirements.
No part of the Warrant shall be exercised if counsel to the Company
determines that any applicable registration requirement under the Securities Act
of 1933, as amended, or any other applicable requirement of federal or state law
has not been met. The Warrant is granted to Holder on the condition that all
purchases of Common Stock will be for investment purposes, and not with a view
to resale or distribution. Any shares of Common Stock issued under this Warrant
shall be specifically subject to such restrictive provisions as the Company may
from time to time deem necessary in order to fully comply with all applicable
securities laws.
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Stock certificates evidencing shares of Common Stock acquired under the
Warrant pursuant to an unregistered transaction shall bear the following
restrictive legend and such other restrictive legends as are required or deemed
advisable under the provisions of any applicable law:
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
6. Loss or Mutilation.
Upon receipt by Grantor of satisfactory evidence (in the exercise of
reasonable discretion) of the ownership of this Warrant by Holder and of the
loss, theft, destruction or mutilation of any Warrant and, in the case of loss,
theft, or destruction, of satisfactory indemnity (in the exercise of reasonable
discretion), and, in the case of mutilation, upon surrender and cancellation
thereof, Grantor will execute and deliver in lieu thereof a new Warrant of like
tenor.
7. Adjustments; Early Termination.
The Exercise Price and the number of shares purchasable hereunder will be
subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the Company shall at
any time after the date hereof but prior to the expiration of this Warrant
subdivide its outstanding securities as to which purchase rights under this
Warrant exist, by split-up or otherwise, or combine its outstanding securities
as to which purchase rights under this Warrant exist, the number of shares of
Common Stock as to which this Warrant is exercisable as of the date of such
subdivision, split-up or combination shall forthwith be proportionately
increased in the case of a subdivision, or proportionately decreased in the case
of a combination. Appropriate adjustments shall also be made to the purchase
price payable per share, but the aggregate purchase price payable for the total
number of shares of Common Stock purchasable under this Warrant as of such date
shall remain the same.
(b) Stock Dividend. If at any time after the date hereof the Company
declares a dividend or other distribution on Common Stock payable in Common
Stock or other securities or rights convertible into Common Stock ("Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or the Common Stock Equivalents (including the
additional shares of Common Stock issuable upon exercise or conversion thereof),
then the number of shares of Common Stock for which this Warrant may be
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exercised shall be increased as of the record date (or the date of such dividend
distribution if no record date is set) for determining which holders of Common
Stock shall be entitled to receive such dividend, in proportion to the increase
in the number of outstanding shares (and shares of Common Stock issuable upon
conversion of all such securities convertible into Common Stock) of Common Stock
as a result of such dividend, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all the shares of Common Stock
issuable hereunder immediately after the record date (or on the date of such
distribution, if applicable), for such dividend shall equal the aggregate amount
so payable immediately before such record date (or on the date of such
distribution, if applicable).
(c) Other Distributions. If at any time after the date hereof the Company
distributes to holders of its Common Stock, other than as part of its
dissolution or liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
cash, Common Stock or securities convertible into Common Stock), then the
Grantor may, at its option, either (i) decrease the per share Exercise Price of
this Warrant by an appropriate amount based upon the value distributed on each
share of Common Stock as determined in good faith by the Grantor or (ii) provide
that on exercise of this Warrant, the Holder hereof shall thereafter be entitled
to receive, in addition to the shares of Common Stock otherwise receivable on
exercise hereof, the number of shares or other securities or property which
would have been received had this Warrant at the time been exercised.
(d) Reclassification, Etc. If at any time after the date hereof there shall
be a change or reclassification of the securities as to which purchase rights
under this Warrant exist into the same or a different number of securities of
any other class or classes, then the Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares or other
securities or property resulting from such change or reclassification, which
would have been received by Holder for the shares of stock subject to this
Warrant had this Warrant at such time been exercised.
(e) Early Termination. Notwithstanding any provision hereof to the contrary,
this Warrant shall lapse and have no further force or effect, at any time
following June 1, 2001, upon the consummation of any transaction, other than a
tax free reorganization (as defined in Section 368 of the Internal Revenue
Code), pursuant to which securities having more than 50% of the Company's total
combined voting power are transferred to a person or persons holding those
securities immediately prior to such transaction, provided, however, that if any
such transaction shall have occurred prior to June 1, 2001, this Warrant shall
lapse on June 30, 2001.
8. No Rights as Stockholders.
The Holder of this Warrant shall not have any of the rights of a stockholder
with respect to the shares subject to the Warrant until such Holder shall have
exercised the Warrant and paid the exercise price.
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9. Investment Representation.
Holder hereby represents to Grantor and the Company that Holder is acquiring
the Warrant and any underlying shares for Holder's own account for investment
purposes only and not for the purpose of resale or distribution. Holder has no
contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge to such person, or anyone else, all or any part of the
Warrant or the underlying shares, and Holder has no present plan to enter into
any such contact, undertaking, agreement or arrangement. Holder further agrees
to execute and deliver any further investment certificates as counsel to the
Company deems necessary or advisable to comply with state or federal securities
laws.
10. Market "Stand Off" Agreement.
The undersigned hereby agrees that during the period of no more than one
hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Act, it shall not, to the extent
requested by the Company, sell or otherwise transfer or dispose of (other than
to donees who agree to be similarly bound) any Common Stock of the Company held
by it at any time during such period except Common Stock included in such
registration. In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Securities held by the
undersigned until the end of such period.
11. Restriction On Transfer.
The Holder of this Warrant, by acceptance hereof, agrees that, absent an
effective registration statement under the Securities Act of 1933, as amended,
covering the disposition of the Warrant or Common Stock issued or issuable upon
exercise hereof, such Holder will not sell or transfer any or all of such
Warrant or Common Stock, as the case may be, without first providing the Company
with an opinion of counsel (which may be counsel for the Company) reasonably
acceptable to the Company to the effect that such sale or transfer will be
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended, and such Holder consents to the Company
making a notation on its records giving instructions to any transfer agent of
the Warrant or such Common Stock to implement such restriction on
transferability.
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12. Applicable Law.
This Warrant is delivered in California and shall be construed and enforced
in accordance with and governed by the laws of such State, as applied to
contracts entered into and to be performed within the State.
Dated: May 26, 2000 THE XXXXXX TRUST
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Trustee
XXXXX X. XXXXXXX
/s/ XXXXX X. XXXXXXX
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EXHIBIT A
SUBSCRIPTION FORM
To
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The undersigned registered owner of this Warrant irrevocably exercises
this Warrant to purchase ___________* shares of Common Stock of FUTURELINK CORP.
(subject to adjustment), and herewith makes payment of $____________ therefor,
on the terms and conditions specified in this Warrant, and requests that the
certificates for such shares be issued in the name of, and be delivered to
________________________________________________ the following address:
________________________________________________`___________________________.
In connection with the exercise of this Warrant, the undersigned hereby
represents and warrants that the undersigned is purchasing the shares under the
Warrant for the undersigned's own account, for investment purposes only and not
with a view to or for sale or resale in connection with any distribution.
Dated:
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(Signature of Registered Owner must
conform in all respects to name of
Holder as specified in the within
Warrant)
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(Name of Registered Owner)
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(Street Address)
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(City) (State) (Zip)
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* Insert here all or such portion of the number of shares specified at the
beginning of the within Warrant with respect to which Holder desires to
exercise his purchase right, without adjustment for any other or additional
stock or other securities, property or cash that may be delivered on such
exercise.
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