EXHIBIT 10.15
WARRANT
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF
THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
No. C-1 Warrant to Purchase Shares
of common stock
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXXXXX.XXX, INC.
In consideration of the sum of Ten dollars ($10.00) previously paid to
XXXXXXXXXXX.XXX, INC., a Nevada corporation (the "Company"), receipt and
sufficiency of which are hereby acknowledged, this certifies that, for value
received, Office Depot, Inc. or its registered assigns ("Holder") is entitled,
subject to the terms and conditions set forth below, to purchase from the
Company, in whole or in part that number of fully paid and nonassessable shares
of the common stock, par value $0.01 per share, of the Company (the "Warrant
Shares") as set forth in Section 2 below and at a purchase price per share (the
"Exercise Price") as set forth in Section 2 below. The term "Warrant" as used
herein shall mean this Warrant, and any warrants delivered in substitution or
exchange therefor as provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth
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herein, this Warrant shall be exercisable, in whole or in part, during the term
commencing on the earlier of the date of the first sale of the Company's common
stock to the public under Form S-1 (registration statement no. 333-80165) (the
"IPO") or November 1,1999 (the "Initial Exercise Date"), and ending at 5:00
p.m., Pacific standard time, on the fourth anniversary of the Initial Exercise
Date"), and shall be void thereafter (the "Exercise Period").
2. Number of Shares, Exercise Price.
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(a) This Warrant shall be exercisable for five hundred thousand
(500,000) shares of common stock of the Company at an exercise price per share
equal to (i) the price per share at which the Company's common stock is sold to
the public in the IPO or (if the IPO does not occur prior to November 1, 1999),
then at $12.00 per share (the "Exercise Price").
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3. Exercise of Warrant.
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(a) This Warrant may be exercised by the Holder by (i) the surrender of
this Warrant to the Company, with the Notice of Exercise annexed hereto duly
completed and executed on behalf of the Holder, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company) during the Exercise Period and (ii) the delivery of payment to the
Company, for the account of the Company, by cash, wire transfer of immediately
available funds to a bank account specified by the Company, or by certified or
bank cashier's check, of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form in lawful money of the United States of America.
The Company agrees that such Warrant Shares shall be deemed to be issued to the
Holder as the record holder of such Warrant Shares as of the close of business
on the date on which this Warrant shall have been surrendered and payment made
for the Warrant Shares as aforesaid. A stock certificate or certificates for the
Warrant Shares specified in the Exercise Form shall be delivered to the Holder
as promptly as practicable, and in any event within 10 days, thereafter. If this
Warrant shall have been exercised only in part, the Company shall, at the time
of delivery of the stock certificate or certificates, deliver to the Holder a
new Warrant evidencing the rights to purchase the remaining Warrant Shares,
which new Warrant shall in all other respects be identical with this Warrant. No
adjustments shall be made on Warrant Shares issuable on the exercise of this
Warrant for any cash dividends paid or payable to holders of record of common
stock prior to the date as of which the Holder shall be deemed to be the record
holder of such Warrant Shares. However, the number of Warrant Shares shall be
adjusted to reflect any stock dividend, stock split or other conversion of the
number of shares of the Company into a different number of shares, however
denominated.
(b) This 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
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
4. No Fractional Shares or Scrip. No fractional shares or scrip
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representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On receipt of evidence reasonably
----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, 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.
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6. Rights of Stockholders. The Holder of this Warrant shall not be
----------------------
entitled to vote or receive dividends or be deemed the holder of common stock
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 or otherwise until the Warrant shall have been
exercised as provided herein.
7. Transfer of Warrant.
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(a) Warrant Register. The Company will maintain a register (the
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"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given to
the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes, notwithstanding any notice to the contrary.
(b) Warrant Agent. The Company may, by written notice to the Holder,
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appoint an agent for the purpose of maintaining the Warrant Register referred to
in Section 7(a) above, issuing the common stock, exchanging this Warrant,
replacing this Warrant, or any or all of the foregoing. Thereafter, any such
registration, issuance, exchange, or replacement, as the case may be, shall be
made at the office of such agent.
(c) Transferability and Nonnegotiability of Warrant. This Warrant may
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not be transferred or assigned in whole or in part without compliance with all
applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company). Notwithstanding the foregoing, no investment representation letter
or opinion of counsel shall be required for any transfer of this Warrant (or any
portion thereof) or any shares of common stock issued upon exercise hereof (i)
in compliance with Rule 144 or Rule 144A of the Act, or (ii) by gift, will or
intestate succession by the Holder to his or her spouse or lineal descendants or
ancestors or any trust for any of the foregoing; provided that in each of the
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 7(c). In addition, if the holder of the Warrant (or any portion
thereof) or any common stock issued upon exercise hereof delivers to the Company
an unqualified opinion of counsel that no subsequent transfer of such Warrant or
common stock shall require registration under the Act, the Company shall, upon
such contemplated transfer, promptly deliver new documents/certificates for such
Warrant or common stock that do not bear the legend set forth in Section
7(e)(ii) below. Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
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(d) Exchange of Warrant Upon a Transfer. On surrender of this Warrant
-----------------------------------
for exchange, properly endorsed on the Assignment Form and subject to the
provisions of this Warrant with respect to compliance with the Act and with the
limitations on assignments and transfers and contained in this Section 7, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
(e) Compliance with Securities Laws.
---------------------------------
(i) The initial Holder of this Warrant represents and warrants to
the Company that it is an institutional accredited investor under the
Act and that it has received and reviewed the Form S-1 for the Company's
IPO. The initial Holder represents and warrants to the Company that it
has all of the information necessary for it to evaluate an investment in
the Company's securities. The initial Holder consents to the disclosure
of the terms of this Warrant in the Form S-1 and the filing of this
Warrant as an exhibit to the Form S-1.
(ii) The Holder of this Warrant, by acceptance hereof, acknowledges
that this Warrant and the shares of common stock to be issued upon
exercise hereof are being acquired solely for the Holder's own account
and not as a nominee for any other party, and for investment, and that
the Holder will not offer, sell or otherwise dispose of this Warrant or
any shares of common stock to be issued upon exercise hereof except under
circumstances that will not result in a violation of the Act or any
applicable state securities laws. Upon the exercise of this Warrant, the
Holder shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of common stock so purchased
are being acquired solely for the Holder's own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale.
(iii) This Warrant and all shares of common stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form (in addition to any legend required by
state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES
ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR
TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT ITS
PRINCIPAL EXECUTIVE OFFICES."
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(iv) The Company agrees to remove promptly, upon the request of the
holder of this Warrant and Securities issuable upon exercise of the
Warrant, the legend set forth in Section 7(e)(ii) above from the
documents/certificates for such securities upon full compliance with this
Agreement and Rules 144 and 145.
8. Reservation of Stock. The Company covenants that during the term
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this Warrant is exercisable, the Company will reserve from its authorized and
unissued common stock a sufficient number of shares to provide for the issuance
of common stock upon the exercise of this Warrant (including any adjustment in
the number of Warrant Shares pursuant to Section 3(a) above). The Company
further covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein). The Company agrees 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 shares of common stock upon the exercise of this Warrant.
9. Registration Rights: Company Registration.
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(a) If the Company shall determine to register any of its securities
either for its own account, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Rule 145
transaction, or a registration on any registration form that does not permit
secondary sales, the Company will:
(i) promptly give to Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except as
set forth in Section 9(b) below, and in any underwriting involved
therein, all or any part (in minimum increments of 100,000 Shares) of the
Warrant Shares specified in a written request or requests, made by Holder
and received by the Company within twenty (20) days after the written
notice from the Company described in clause (i) above is mailed or
delivered by the Company. Such written request may specify all or a part
of Holder's Warrant Shares.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise Holder as a part of the written notice given pursuant to
Section 9(a)(i). In such event, the right of Holder to registration pursuant to
this Section 9 shall be conditioned upon Xxxxxx's participation in such
underwriting and the inclusion of Xxxxxx's Warrant Shares in the underwriting to
the extent provided herein. A Holder proposing to distribute its securities
through such underwriting shall (together with the Company and the other holders
of securities of the Company with registration rights to participate therein
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
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Notwithstanding any other provision of this Section 9, if the
representative of the underwriters advises the Company, in good faith, in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the representative may (subject to the limitations set forth
below) exclude all Warrant Shares from, or limit the number of Warrant Shares to
be included in, the registration and underwriting. If the registration is the
first Company-initiated registered offering of the Company's securities to the
general public, the Company may limit, to the extent so advised by the
underwriters, the amount of securities (including Warrant Shares) to be included
in the registration by the Company's stockholders (including the Holder), and
such securities shall be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder, or the Company may exclude, to the extent so
advised by the underwriters, such underwritten securities entirely from such
registration. If such registration is the second or any subsequent Company-
initiated registered offering of the Company's securities to the general public,
the Company may limit, to the extent so advised by the underwriters, the amount
of securities to be included in the registration by the Company's stockholders
(including the Holder); provided, however, that the aggregate value of Warrant
Shares to be included in such registration may not be so reduced to less than
twenty-five percent (25%) of the total value of all securities included in such
registration, to be apportioned pro rata among the holders of registrable
securities according to the total amount of securities entitled to be included
therein owned by each holder of registrable securities. If any person does not
agree to the terms of any such underwriting, he shall be excluded therefrom by
written notice from the Company or the underwriter. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
If shares are so withdrawn from the registration or if the number of
shares of Warrant Shares to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn.
10. Registration on Form S-3.
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(a) After its IPO, the Company shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or forms. After the
Company has qualified for the use of Form S-3, in addition to the rights
contained in the foregoing provisions of Section 9, Holder shall have the right
to request one or more registrations on Form S-3 (such requests shall be in
writing and shall state the number of shares of Warrant Shares to be disposed of
and the intended methods of disposition of such shares by Holder), provided,
however, that the Company shall not be obligated to effect any such registration
if (i) Holder proposes to sell Warrant Shares on Form S-3 at an aggregate price
to the public of less than $500,000, or (ii) in the event the Company shall
furnish the certification described in paragraph 10(d)(ii) (but subject to the
limitations set forth therein), or (iii) the Company has, within the six (6)
month period preceding the date of such request already effected one
registration on Form S-3 for the Holders pursuant to this Section 10.
(b) If a request complying with the requirements of Section 10(a)
hereof is delivered to the Company, the provisions of Sections 9(a)(i) and (ii)
and Section 10(c) hereof shall apply to
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such registration. If the registration is for an underwritten offering, the
provisions of Sections 9(b) hereof shall apply to such registration.
(c) The Company shall not be obligated to effect, or to take any action
to effect, any such registration pursuant to this Section 10:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification, or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(ii) During the period starting with the date sixty (60) days prior
to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date
of, a Company-initiated registration; provided that (i) the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(d) Subject to the foregoing clauses (i) and (ii), the Company shall
file a registration statement covering the Warrant Shares so requested to be
registered as soon as practicable after receipt of the request of Holder;
provided, however, that if (i) in the good faith judgment of the Board of
Directors of the Company, such registration would be seriously detrimental to
the Company and the Board of Directors of the Company concludes, as a result,
that it is essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish to Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company for
such registration statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for the period during
which such disclosure would be seriously detrimental, provided that (except as
provided in clause (C) above) the Company may not defer the filing for a period
of more than one hundred eighty (180) days after receipt of the request of
Holder, and, provided further, that the Company shall not defer its obligation
in this manner more than once in any twelve (12) month period.
11. Expenses of Registration. All Registration Expenses (as defined
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herein) incurred in connection with any registration, qualification or
compliance pursuant to Sections 9 and 10 hereof and reasonable fees of one
counsel for Holder shall be borne by the Company. All Selling Expenses (as
defined herein) relating to securities so registered shall be borne by the
holders of such securities pro rata on the basis of the number of shares of
securities so registered on their behalf. "Registration Expenses" shall mean
all expenses incurred in effecting any registration pursuant to this Warrant,
including, without limitation, all registration, qualification, and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, fees and disbursements of one special counsel for the selling
stockholders, blue sky fees and expenses, accounting fees and expenses of any
regular or special audits incident to or required by any such registration, but
shall not include Selling Expenses and fees and disbursements of additional
counsel for the stockholders. Registration Expenses do not include the
compensation of regular employees of the Company, which shall be paid in any
event by the Company.
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"Selling Expenses" shall mean all underwriting discounts and selling commissions
applicable to the sale of Warrant Shares and fees and disbursements of counsel
for any Holder (other than the fees and disbursements of counsel included in
Registration Expenses).
12. Amendments. This Warrant and any term hereof may be changed,
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waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
13. Market-Standoff Provisions. If requested by the Company and an
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underwriter of the common stock of the Company, Holder shall not sell or
otherwise transfer or dispose of any Warrant Shares held by Holder (other than
those included in the registration) during the one hundred eighty (180) day
period following the effective date of the IPO. Holder shall sign at the same
time it signs this Warrant the letter requested by Prudential Securities as lead
manager in the IPO containing the 180 day lock up restrictions.
14. Miscellaneous.
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(a) This Warrant shall be governed by the laws of the State of Nevada
as applied to agreements entered into in the State of Nevada by and among
residents of the State of Nevada.
(b) In the event of a dispute with regard to the interpretation of this
Warrant, the prevailing party may collect the cost of attorney's fees,
litigation expenses or such other expenses as may be incurred in the enforcement
of the prevailing party's rights hereunder.
(c) The rights to cause the Company to register securities granted to a
Holder by the Company under Section 10 may be transferred or assigned by Xxxxxx
only to a transferee or assignee of not less than 100,000, provided that the
Company is given written notice at the time of or within a reasonable time after
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and, provided further, that the
transferee or assignee of such rights assumes the obligations of such Holder
under this Warrant.
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(d) This Warrant shall be exercisable as provided for herein, except
that in the event that the expiration date of this Warrant shall fall on a
Saturday, Sunday or United States federally recognized Holiday, this expiration
date for this Warrant shall be extended to 5:00 p.m. Pacific standard time on
the business day following such Saturday, Sunday or recognized Holiday.
IN WITNESS WHEREOF, XXXXXXXXXXX.XXX, INC. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: July 22, 1999.
HOLDER
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/s/ XXXXX X. XXXXXX
________________________________________
(Signature)
Xxxxx X. Xxxxxx
________________________________________
(Print Name)
XXXXXXXXXXX.XXX, INC., a Nevada
corporation
By /s/ XXXXXXXXXXX X. XXXXXX
_____________________________________
Xxxxxxxxxxx X. Xxxxxx
President/COO/Sect'y
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NOTICE OF EXERCISE
To: XXXXXXXXXXX.XXX, INC.
(1) The undersigned hereby elects to purchase shares of common stock of
XXXXXXXXXXX.XXX, INC., pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, or for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any applicable state securities laws.
(3) 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)
________________________________________
(Name)
(4) 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)
_________________ ________________________________________
(Date) (Name)
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of common stock set forth below:
Name of Assignee Address No. of Shares
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and does hereby irrevocably constitute and appoint Attorney to make such
transfer on the books of XXXXXXXXXXX.XXX, INC., maintained for the purpose, with
full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof or conversion thereof are being acquired for investment and that
the Assignee will not offer, sell or otherwise dispose of this Warrant or any
shares of stock to be issued upon exercise hereof or conversion thereof except
under circumstances which will not result in a violation of the Securities Act
of 1933, as amended, or any applicable state securities laws. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the Assignee
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the shares of stock so purchased are being acquired for
investment and not with a view toward distribution or resale.
Dated: ______________, __
________________________________________
Signature of Holder
SB-11
