Exhibit A
THIS SECURITY IS BEING SOLD IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OR IF AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
ATLAS TRUST COMPANY (JERSEY) LIMITED
AS TRUSTEE OF THE INTERNET INVESTMENTS INC.
EMPLOYEE BENEFITS AND SHARES TRUST
NON-TRANSFERABLE COMMON STOCK PURCHASE WARRANT
Thirty Seven Thousand Five Hundred Shares
DATED: 15 AUGUST 2000
Atlas Trust Company (Jersey) Limited a Jersey corporation (the
"Shareholder") as trustee of the Internet Investments Inc. Employee
Benefits and Shares Trust is the holder of certain shares of Common Stock,
no par value (the "Common Stock"), of xXxxx.xxx, Inc, a California
corporation ("UDAT").
The Shareholder does hereby certify and agree that, for good and valuable
consideration, XXXXX XXXXXXXX or his permitted successors and assigns
("Holder"), hereby is entitled to purchase from the Shareholder up to
Thirty Seven Thousand Five Hundred (37,500) duly authorised, validly
issued, fully paid and non-assessable shares of the Common Stock of UDAT
upon the terms and subject to the provisions of this Warrant.
1. PRICE AND EXERCISE OF WARRANT
1.1 TERM OF WARRANT
This Warrant shall be fully exercisable (in whole or in part) at any
time beginning one year after the date hereof and (subject to section
2 below) shall expire ten (10) years after the date hereof (the
"Warrant Period"). The expiration date for this Warrant is hereinafter
referred to as the "Expiration Date".
1.2 WARRANT EXERCISE PRICE
The exercise price of the shares of Common Stock issuable upon
exercise of this Warrant (the "Warrant Shares") shall be one dollar
($1.00) per Share ("Warrant Exercise Price").
1.3 EXERCISE OF WARRANT
1.3.1 This Warrant may be exercised, in whole or in part, at any
time during the Warrant Period (subject to section 2 below)
upon surrender to the Shareholder at its principal place of
business at PO Box 246 Xxxxx 0, 00 Xxxxx Xxxxxx, Xx. Xxxxxx,
Xxxxxx XX0 5PP Channel Islands, of the certificate or
certificates evidencing this Warrant to be exercised,
together with the form of election to exercise attached
hereto as Exhibit A duly completed and executed, and upon
payment to the Shareholder of the Warrant Exercise Price for
the number of Warrant Shares in respect of which this
Warrant is then being exercised.
1.3.2 Payment of the aggregate Warrant Exercise Price shall be
made in cash.
1.3.3 Upon surrender of this Warrant, and the duly completed and
executed form of election to exercise and payment of the
Warrant Exercise Price in cash, the Shareholder shall
deliver or cause to be delivered to the Holder a certificate
or certificates representing the number of Warrant Shares so
purchased upon the exercise of this Warrant which
certificates shall be properly endorsed for transfer or
accompanied by duly executed stock powers, in either case
executed in blank or in favour of the Holder.
1.4 CERTAIN COVENANTS
1.4.1 Except as provided in section 2 below, the Shareholder shall
not transfer or sell such number of shares of Common Stock
during the Warrant Period as shall from time to time be
sufficient for the exercise of this Warrant.
1.4.2 The Shareholder will take all such action as may be
necessary or appropriate in order that the Shareholder may
validly and legally sell the Common Stock upon the exercise
of this Warrant, subject to applicable securities laws and
the limitations set forth in the Warrant Agreement.
2. LIMITATIONS ON RIGHTS AND OBLIGATIONS OF THE WARRANT HOLDER
This Warrant shall not entitle the Holder to any voting rights or
dividends or any other rights of a shareholder in UDAT with respect to
the Warrant Shares. In addition, this Warrant shall not restrict any
of the rights of the Shareholder with respect to the Warrant Shares or
any of the other shares of capital stock or securities convertible or
exchangeable into shares of capital stock of UDAT owned or held by the
Shareholder, including, without limitation, the right to sell or
transfer such securities or use such securities as collateral or
security for any obligation or duty of Shareholder. If at any time
during the Warrant Period the Shareholder proposes to sell securities
of UDAT in an amount such that after the consummation of such sale the
Shareholder would not beneficially own the maximum number of shares
that may be purchased upon exercise of this Warrant (as adjusted), the
Shareholder shall give the Holder not less than thirty (30) days prior
written notice of such transaction such notice to be delivered by a
nationally recognised overnight courier service. The Holder may elect
to exercise all or any part of this Warrant during the twenty five
(25) days after delivery of such notice. On the twentysixth (26th) day
after delivery of such notice, this Warrant, if not fully exercised,
shall terminate.
3. SECURITIES ACT COMPLIANCE; REPRESENTATIONS; AND RESTRICTIONS ON
TRANSFER
3.1 ACCREDITED INVESTOR
The Holder is an "accredited investor" as that term is defined in Rule
501(a) of Regulation D of the Securities Act.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT
As of the date hereof and the date of each exercise of the Warrant
hereunder, the Holder represents and warrants that the Warrants are
being acquired and the Warrant Shares will be acquired for its own
account for investment and not with a view to, or for resale in
connection with, any distribution of such securities; and that no
other person will have any direct or indirect beneficial interest in
or right to any of such stock; and the Holder further represents and
warrants that it does not have and at the time of the sale and
purchase of the Warrant Shares will not have any agreement or
arrangements with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any of such
Warrant Shares.
3.3 DISCLOSURE OF INFORMATION
As of the date hereof and the date of each exercise of the Warrant
hereunder:
3.3.1 The Holder acknowledges it has received all the information
it considers necessary or appropriate for deciding whether
to be issued and to exercise this Warrant hereunder. The
Holder has consulted with and relied upon its own legal and
tax advisors. The Holder acknowledges that the Shareholder
has provided no legal or tax advice with respect to the
issuance or exercise of this Warrant or the Warrant Shares.
3.3.2 The Holder further represents and warrants that it has had
an opportunity to ask questions and receive answers from
UDAT regarding the business, properties, prospects and
financial condition of UDAT; and that the Holder will enter
into comparable representations and warranties at the time
any Warrant Shares are issued under this Warrant.
3.4 INVESTMENT EXPERIENCE
As of the date hereof and the date of each exercise of the Warrant
hereunder, the Holder acknowledges that it can bear the economic risk
of its investment, and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and
risks of the investment in the Warrants and the Warrant Shares. The
Holder also represents it has not been organised for the purpose of
acquiring the Warrants or the Warrant Shares. The Holder recognises
that an investment in the Warrant Shares is subject to material risk.
3.5 RESTRICTED SECURITIES
The Holder understands that the Warrant and the Warrant Shares when
purchased will be considered "restricted securities" under the United
States federal securities laws since such stock will be acquired in a
transaction not involving a public offering and that under such laws
applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited
circumstances. In this connection, the Holder represents that it is
familiar with SEC Rule 144, as presently in effect, and understands
the resale limitations imposed hereby and by the Securities Act. The
Holder acknowledges that the Shareholder may be deemed to be an
"affiliate" for the purposes of Rule 144. In addition, the Holder
acknowledges and agrees that neither the Warrant nor the Warrant
Shares have been registered or qualified under the laws of any state
and that issuance of the Warrant or the Warrant Shares may be
conditioned on compliance with such laws. Except as set forth in
section 5 below, neither the Shareholder nor UDAT has any obligation
to register or qualify the Warrant or the Warrant Shares with the SEC
or any state securities agency at any time.
3.6 RESTRICTIONS ON TRANSFER: ASSIGNMENT OF WARRANT
This Warrant is non-assignable and non-transferable. The Holder will
observe and comply with the Securities Act and the rules and
regulations promulgated thereunder, as now in effect and as from time
to time amended, in connection with any offer, sale, pledge, transfer
or other disposition of the Warrant Shares. In furtherance of the
foregoing, and in addition to any restrictions contained in this
Warrant, the Holder will not offer to sell, exchange, transfer, pledge
or otherwise dispose of any of the Warrant Shares unless at such time
at least one of the following is satisfied:
3.6.1. a registration statement under the Securities Act covering
the Warrant Shares proposed to be sold, transferred or
otherwise disposed of, describing the manner and terms of
the proposed sale, transfer or other disposition, and
containing a current prospectus, shall have been filed with
the SEC and made effective under the Securities Act;
3.6.2. such transactions shall be permitted pursuant to the
provisions of Rule 144;
3.6.3. counsel representing the Holder shall have advised XXXX and
the Shareholder in a written opinion letter reasonably
satisfactory to each of them, and upon which each of them
may rely, that no registration under the Securities Act will
be required in connection with the proposed sale, transfer
or other disposition; or
3.6.4. an authorised representative of the SEC shall have rendered
written advice to the Holder (sought by the Holder or
counsel to the Holder, with a copy thereof and of all other
related communications delivered to UDAT and the
Shareholder) to the effect that the SEC will take no action,
or that the staff of the SEC would not recommend that the
SEC take action, with respect to the proposed sale, transfer
or disposition if consummated.
Notwithstanding anything in this Warrant to the contrary, the Holder
agrees that it shall not (i) lend, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Warrant
Shares, or (ii) enter into any swap or any other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of the Warrant Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise, for one hundred and eighty (180) days after transfer of the
Warrant Shares to the Holder.
4. OTHER LIMITATIONS; RESTRICTIVE LEGENDS
This Warrant and the Warrant Shares have not been registered under any
securities laws. In connection therewith this Warrant hereby does bear
and any stock certificates issued pursuant to the exercise of this
Warrant or any substitute therefor shall bear one or more of the
followings legends or their substantial equivalent:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT;"
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND CERTAIN RIGHTS, LIMITATIONS,
RESTRICTIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN A
COMMON STOCK PURCHASE WARRANT, DATED AS OF 15 AUGUST 2000, BY AND
BETWEEN ATLAS TRUST COMPANY (JERSEY) LIMITED ("ATLAS") AS TRUSTEE OF
THE INTERNET INVESTMENTS INC. EMPLOYEE BENEFITS AND SHARES TRUST AND
THE REGISTERED HOLDER OF THIS CERTIFICATE (OR SUCH HOLDER'S
PREDECESSOR-IN-INTEREST). COPIES OF SUCH WARRANTS ARE ON FILE AND MAY
BE INSPECTED BY THE REGISTERED HOLDER OF THIS CERTIFICATE AT THE
PRINCIPAL EXECUTIVE OFFICE OF ATLAS;"
any legend required by the laws of the State of California or other
applicable jurisdiction, including but not limited to any legend
required by the California Department of Corporations or the
applicable provisions of the California Corporations Code; and such
additional legends as determined by either of the Shareholder or UDAT
in its reasonable discretion.
5. REGISTRATION RIGHTS
5.1. The Shareholder shall hold the benefit of the rights conferred upon
the Shareholder pursuant to clause 1 of the registration rights
agreement made between, inter alia, UDAT and the Shareholder on 23 May
2000 (the "Registration Rights Agreement") on behalf of the Holder to
the extent that such rights relate to the Warrant Shares (the
"Registration Rights").
5.2. Promptly following exercise of this Warrant, the Shareholder shall
take such action and steps as are reasonably necessary to assign the
Registration Rights pursuant to clause 1.11 of the Registration Rights
Agreement provided that the Holder co-operates fully in assisting the
Shareholder to comply with the terms of the said clause 1.11; provided
that the Shareholder makes no representation or warranty that such
rights may be transferred to the Holder. The Holder acknowledges that
it has received, reviewed and is familiar with the terms of the
Registration Rights Agreement.
6. ADJUSTMENT OF WARRANT SHARES
If at any time, there is any increase or decrease in the number of
issued shares of Common Stock of UDAT resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification
of the Common Stock of UDAT, any other increase or decrease in the
number of issued shares of Common Stock of UDAT effected without
receipt of consideration by UDAT, or similar event affecting the
Warrant Shares, then the number of Warrant Shares hereunder and the
exercise price of this Warrant shall be proportionately adjusted. No
issuance by UDAT of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason hereof shall be made with respect to, the number
or price of Warrant Shares hereunder.
7. NOTICES
7.1. Pending exercise of the Warrant the Shareholder shall promptly provide
copies of any notices delivered to the Shareholder with respect to the
Warrant Shares to the Holder.
7.2. Except as otherwise provided in this Warrant, any notices or other
communications to be given hereunder by either party to the other may
be effected in writing by personal delivery, delivery by a nationally
recognised overnight courier service, or by mail, registered or
certified, postage prepaid with return receipt requested. Notices
delivered personally or by courier will be deemed communicated as of
actual receipt. Mailed notices will be deemed communicated as of three
(3) days after mailing. The addresses for such communication pending
further notice hereunder shall be:
If to the Shareholder:
Atlas Trust Company (Jersey) Limited
PO Box 000
Xxxxx 0
00 Xxxxx Xxxxxx
Xx Xxxxxx
Xxxxxx
XX0 0XX
Channel Islands
With a copy to:
Eversheds
l1 St Xxxxx Court
Friar Gate
Derby
DE1 1BT
If to the Holder:
K Schacker
0000 Xxxxxxxx Xxxxx
Xxxxxxx
Xxx Xxxx
00000 XXX
Each party hereto may from time to time change its address for notices
under this Section by giving at least ten (10) days' notice of such
changes address to the other party hereto.
8. TAXES
The Holder understands that it may suffer adverse tax consequences as
a result of the purchase or disposition of the Warrant Shares. The
Holder represents that it has consulted with any tax consultants that
it deems advisable in connection with the purchase or disposition of
the Warrant Shares and that the Holder is not relying on the
Shareholder or its representatives for any tax advice. In addition to
their obligations hereunder the Holder shall be responsible for all
income, sales, use and transfer taxes, including but not limited to
any value added, stock transfer, gross receipts, stamp duty and real,
personal or intangible property transfer taxes, due by reason of the
consummation of the issuance or exercise of this Warrant or issuance
of the Warrant Shares, including but not limited to any interest or
penalties in respect thereof.
9. SUCCESSORS AND ASSIGNS
Except as otherwise provided herein, the terms of this Warrant shall
enure to the benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Warrant, express or
implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this
Warrant, except as expressly provided in this Warrant.
10. AMENDMENTS AND WAIVERS
This Warrant and any provision hereof may be modified, waived,
discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such modification, waiver,
discharge or termination is sought.
11. APPLICABLE LAW; INTERPRETATION
This Warrant shall he governed by and construed and enforced in
accordance with the laws of England and Wales without reference to
conflict of laws of principles. Whenever the context requires,
references to the singular shall include the plural and the plural the
singular and any gender shall include any other gender. No provision
of this Warrant shall be interpreted for or against any party because
such party or its representative drafted such provision. Section
headings are merely for convenience and are not part of this Warrant.
IN WITNESS WHEREOF, the Shareholder has caused this Warrant to be duly
executed on the day and year first above written
THE COMMON SEAL of )
ATLAS TRUST COMPANY )
(JERSEY) LIMITED was hereunto )
affixed in the presence of. )
/s/ XXX XXXXXXX XXXXXXXX Director
/s/ XXX XXXXXX XXXX Director/Secretary
EXHIBIT A
To: Atlas Trust Company (Jersey) Limited
ELECTION TO EXERCISE
The undersigned hereby exercises its right to subscribe for and purchase
from Atlas Trust Company (Jersey) Limited ("Atlas") [ ] fully paid,
validly issued and nonassessable shares of Common Stock of xXxxx.xxx, Inc,
a California corporation, held by Atlas and covered by the Warrant and
tenders payment herewith in the amount of the Warrant Exercise Price in
accordance with the terms thereof, and requests that certificates for such
shares be issued in the name of, and delivered to:
Date: [Holder]
By
Name
Title
