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EXHIBIT 4.11
NEITHER THESE SECURITIES NOR THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION THEREFROM. ANY
SUCH TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES LAWS.
SYMPOSIUM CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK
250,000 Shares
FOR VALUE RECEIVED, SYMPOSIUM CORPORATION, a Delaware
corporation (the "COMPANY"), hereby certifies that INTERNATIONAL MARKETING
ASSOCIATION, INC. or its registered assigns (the "HOLDER") is entitled to
purchase from the Company, subject to the provisions of this Warrant (the
"WARRANT"), including without limitation the provisions regarding vesting set
forth in Section 1(a) below, at any time on or after December 1, 2000 (the
"INITIAL EXERCISE DATE"), and prior to 5:00 P.M., New York City time, on the
fifth anniversary of the Initial Exercise Date (the "TERMINATION DATE") Two
Hundred Fifty Thousand (250,000) fully paid and non-assessable shares of the
Common Stock, $.001 par value, of the Company (the "COMMON STOCK"), at an
initial exercise price of $1.75 per share of Common Stock (the "INITIAL PER
SHARE EXERCISE PRICE"). The number of shares of Common Stock to be received upon
exercise of this Warrant and the price to be paid for each share of Common Stock
are subject to possible adjustment from time to time as hereinafter set forth.
The shares of Common Stock or other securities or property deliverable upon such
exercise as adjusted from time to time are hereinafter sometimes referred to as
the "WARRANT SHARES." The exercise price of a share of Common Stock in effect at
any time and as adjusted from time to time is hereinafter sometimes referred to
as the "PER SHARE EXERCISE PRICE." The Per Share Exercise Price is subject to
adjustment as hereinafter provided.
1. EXERCISE OF WARRANT.
(a) This Warrant may be exercised in whole or in part, at any
time by its Holder commencing on the Initial Exercise Date and prior to the
Termination Date by presentation and surrender of this Warrant, together with
the duly executed subscription form or "Cashless Exercise" subscription form, as
applicable, and representations and warranties attached at the end hereof, at
the address set forth in Subsection 8(a) hereof, together with payment, by
certified or official bank check or wire transfer payable to the order of the
Company, of the product of (x) the Per Share Exercise Price multiplied by (y)
the number of
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Warrant Shares subject to (1) this Warrant or (2) the proportionate part thereof
if exercised in part (such product, the "AGGREGATE EXERCISE PRICE") or by
Cashless Exercise (as defined below) in accordance with Section 1(b); provided,
however, that: (A) anything herein to the contrary notwithstanding, this Warrant
may be exercised only with respect to Warrant Shares that have vested in
accordance with the Vesting Schedule (the "VESTING SCHEDULE") annexed hereto and
incorporated by reference herein; and (B) the maximum number of Warrant Shares
that the Holder may purchase upon any exercise hereof shall be the amount by
which (x) the total number of vested Warrant Shares as of the date of such
exercise, (which number shall include Warrant Shares, if any, purchased upon any
previous partial exercise of this Warrant or, if such purchase was pursuant to
the Cashless Exercise provisions of Section 1(b) hereof, then such number shall
include the Maximum Number of Warrant Shares for which this Warrant was
exercised in connection with such previous Cashless Exercise ) (the "PREVIOUSLY
PURCHASED WARRANT SHARES")) exceeds (y) the total number of Previously Purchased
Warrant Shares. Once vested, Warrant Shares may be purchased upon exercise of
this Warrant at any time, or from time to time, prior to the Termination Date.
All numbers of shares referred to in the Vesting Schedule shall be subject to
adjustment as set forth below.
(b) Subject to the proviso to the first sentence of Section
1(a) hereof, the Holder of this Warrant may, at its election exercised in its
sole discretion, exercise this Warrant in whole or in part and, in lieu of
making the cash payment otherwise contemplated to be made to the Company upon
such exercise in payment of the Aggregate Exercise Price, elect instead to
receive upon such exercise the "NET NUMBER" of shares of Common Stock determined
according to the following formula (a "CASHLESS EXERCISE"):
Net Number = (A x B) - (A x C)
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B
For purposes of the foregoing formula:
A = the total number of shares with respect to which
this Warrant is then being exercised (the "MAXIMUM
NUMBER").
B = the Closing Sale Price of one share of the Common
Stock on the trading day immediately preceding the
date of the Exercise Notice.
C = the Per Share Exercise Price then in effect for
the applicable Warrant Shares at the time of such
exercise.
"CLOSING SALE PRICE" means, for any security as of any date,
the last closing trade price for such security on the principal market as
reported by Bloomberg Financial Markets.
(c) If this Warrant is exercised in part only, the Company
shall, upon presentation of this Warrant upon such exercise (together with the
duly executed subscription form and representations and warranties attached at
the end hereof), execute and deliver (along with the certificate for the Warrant
Shares purchased) a new Warrant evidencing the rights of the Holder hereof to
purchase the balance of the Warrant Shares purchasable hereunder (which in the
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event of a "Cashless Exercise " pursuant to Section 1(b), shall equal the
difference obtained by subtracting the aggregate number of Warrant Shares
issuable upon exercise hereof and the Maximum Number of Warrant Shares) upon the
same terms and conditions as herein set forth. Upon proper exercise of this
Warrant, the Company promptly shall deliver certificates for the Warrant Shares
to the Holder duly legended as authorized by the subscription form. No
fractional shares or scrip representing fractional shares shall be issued upon
exercise of this Warrant; provided that the Company shall pay to the holder of
the Warrant cash in lieu of such fractional shares.
2. RESERVATION OF WARRANT SHARES; FULLY PAID SHARES; TAXES.
The Company hereby represents that it has, and until expiration of this Warrant
agrees that it shall, reserve for issuance or delivery upon exercise of this
Warrant, such number of shares of the Common Stock as shall be required for
issuance and/or delivery upon exercise of this Warrant in full, and agrees that
all Warrant Shares so issued and/or delivered will be validly issued, fully paid
and non-assessable, and further agrees to pay all taxes and charges (other than
income taxes) that may be imposed upon such issuance and/or delivery. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which this Warrant is
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of such tax or
has established, to the satisfaction of the Company, that such tax has been paid
or need not be paid.
3. PROTECTION AGAINST DILUTION.
(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its Common Stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number of shares
or (iii) combine its outstanding shares of Common Stock into a smaller number of
shares (each of (i) through (iii) an "Action"), then the Per Share Exercise
Price shall be adjusted to be equal to the product of (i) a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately prior to such Action and the denominator of which is the number of
shares of Common Stock outstanding immediately following such Action, multiplied
by (ii) the Per Share Exercise Price immediately prior to such Action. An
adjustment made pursuant to this Subsection 3(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(b) Whenever the Per Share Exercise Price is adjusted pursuant
to subsection 3(a), the number of Warrant Shares issuable upon payment of the
Aggregate Exercise Price shall be adjusted to be equal to the product of the
number of Warrant Shares issuable upon payment of the Aggregate Exercise Price
immediately prior to such adjustment multiplied by a fraction, the numerator of
which shall be the Aggregate Exercise Price payable immediately prior to such
adjustment and the denominator which shall be the Aggregate Exercise Price
payable immediately after such adjustment.
(c) In the event of any capital reorganization or
reclassification, or any consolidation or merger to which the Company is a party
other than a merger or consolidation in
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which the Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an entirety or
substantially as an entirety, or in the case of any statutory exchange of
securities with another corporation (including any exchange effected in
connection with a merger of a third corporation into the Company), the Holder of
this Warrant shall have the right thereafter to receive on the exercise of this
Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant been exercised immediately prior to the
effective date of such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the Holder of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of this Warrant. The above
provisions of this Subsection 3(c) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant
shall be responsible for all of the agreements and obligations of the Company
hereunder. A sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.
(d) No adjustment in the Per Share Exercise Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
which by reason of this Subsection 3(d) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 3 shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be. Anything in this Section 3 to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Per Share Exercise Price, in addition to those required by
this Section 3, as it in its discretion shall deem to be advisable in order that
any stock dividend, subdivision of shares or distribution of rights to purchase
stock or securities convertible or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
(e) Whenever the Per Share Exercise Price is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this Section 3, the Chief Financial Officer, or
equivalent officer, of the Company shall prepare a certificate setting forth the
Per Share Exercise Price and the number of Warrant Shares after such adjustment
or the effect of such modification, a brief statement of the facts requiring
such adjustment or modification and the manner of computing the same and cause
copies of such certificate to be mailed to the Holder.
(f) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
written notice to the Holder of any Warrant promptly after such adjustment)
shall
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determine the allocation of the adjusted Per Share Exercise Price between or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
(g) Notwithstanding anything else contained herein to the
contrary, the Per Share Exercise Price shall not be decreased to be equal to an
amount less than the authorized par value of the Company as in effect at the
time of the exercise of this Warrant under Section 1 hereof.
4. LIMITED TRANSFERABILITY. This Warrant may not be sold,
transferred, assigned or hypothecated by the Holder except in compliance with
the provisions of the Act and the applicable state securities "blue sky" laws,
and is so transferable only upon the books of the Company which it shall cause
to be maintained for such purpose. The Company may treat the registered Holder
of this Warrant as he or it appears on the Company's books at any time as the
Holder for all purposes. The Company shall permit any Holder of a Warrant or his
duly authorized attorney, upon written request during ordinary business hours,
to inspect and copy or make extracts from its books showing the registered
holders of Warrants. All Warrants issued upon the transfer or assignment of this
Warrant will be dated the same date as this Warrant, and all rights of the
holder thereof shall be identical to those of the Holder.
5. LOSS, ETC., OF WARRANT. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, of indemnity reasonably satisfactory to the Company and, if
requested by the Company, of a bond reasonably satisfactory to the Company, if
lost, stolen or destroyed, and upon surrender and cancellation of this Warrant,
if mutilated, the Company shall execute and deliver to the Holder a new Warrant
of like date, tenor and denomination.
6. INVESTMENT INTENT.
(a) The Holder represents, by accepting this Warrant, that it
understands that this Warrant and any securities obtainable upon exercise of
this Warrant have not been registered for sale under Federal or state securities
laws and are being offered and sold to the Holder pursuant to one or more
exemptions from the registration requirements of such securities laws. The
Holder is an "accredited investor" within the meaning of Regulation D under the
Securities Act of 1933, as amended (the "Act"). In the absence of an effective
registration of such securities or an exemption therefrom, any certificates for
such securities shall bear the legend set forth on the first page hereof. The
Holder understands that it must bear the economic risk of his investment in this
Warrant and any securities obtainable upon exercise of this Warrant for an
indefinite period of time, as this Warrant and such securities have not been
registered under Federal or state securities laws and therefore cannot be sold
unless subsequently registered under such laws, unless as exemption from such
registration is available.
(b) The Holder, by its acceptance of this Warrant, represents
to the Company that he is acquiring this Warrant and will acquire any securities
obtainable upon exercise of this Warrant for its own account for investment and
not with a view to, or for sale in connection with, any distribution thereof in
violation of the Act. The Holder agrees that this Warrant and any such
securities will not be sold or otherwise transferred unless (i) a registration
statement with
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respect to such transfer is effective under the Act and any applicable state
securities laws or (ii) such sale or transfer is made pursuant to one or more
exemptions from the Act.
7. STATUS OF HOLDER. This Warrant does not confer upon the
Holder any right to vote or to consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a stockholder, prior to the exercise hereof.
8. NOTICES. No notice or other communication under this
Warrant shall be effective unless, but any notice or other communication shall
be effective and shall be deemed to have been given if, the same is in writing
and is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx
Xxxx 00000 or such other address as the Company has designated in
writing to the Holder; or
(b) the Holder at 000 Xxxxxxxxx Xxxxx, #000, Xxxxxxxx Xxxxx,
Xxxxxxxx 00000
or such other address as the Holder has designated in writing to the
Company.
9. HEADINGS. The headings of this Warrant have been inserted
as a matter of convenience and shall not affect the construction hereof.
10. APPLICABLE LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflicts of law thereof.
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IN WITNESS WHEREOF, Xxxxxx Xxxxxxx acting for and on behalf of
the Company, has executed this Warrant and caused such Warrant to be attested by
its Secretary or Assistant Secretary as of December 1, 2000.
SYMPOSIUM CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxxxx Xxxxxxx
--------------------------------
Secretary or Assistant Secretary
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SUBSCRIPTION
The undersigned, ____________________________, pursuant to the
provisions of the foregoing Warrant, hereby elects to exercise the within
Warrant to the extent of purchasing _____________________ shares of Common Stock
of Symposium Corporation thereunder and hereby makes payment of $_______________
by certified or official bank check in payment of the exercise price therefor.
Dated:_______________ Signature:_____________________________
Address:_______________________________
CASHLESS EXERCISE
The undersigned, ____________________________, pursuant to subsection 1(b) of
the foregoing Warrant, hereby elects to exchange the foregoing Warrant for a
Maximum Number of ________________ shares of Common Stock. The actual number of
shares the undersigned shall receive shall be reduced pursuant to the subsection
1(b) of the Warrant.
Date:_______________ Signature:_____________________________
Address:______________________________
REPRESENTATIONS AND WARRANTIES
The undersigned Holder hereby represents and warrants to the
Company as follows:
a. The Holder is acquiring the Warrant Shares for its own
account, for investment purposes only and not with a view towards or in
connection with public sale or distribution thereof. The Warrant Shares may not
be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act and in compliance with the
applicable securities laws of any state or other jurisdiction, or pursuant to an
opinion of counsel satisfactory to the Company that such registration is not
required and such compliance has been obtained. The Company may affix an
appropriate legend to any certificate(s) representing the Warrant Shares to
reflect the foregoing.
b. The Holder understands that the Warrant Shares are being
offered and sold by the Company in reliance on an exemption from the
registration requirements of the Securities Act and equivalent state securities
and "blue sky" laws, and that the Company is relying upon the accuracy of, and
the compliance by the Holder with its representations and warranties set forth
in this letter, in determining the availability of such exemption and the
eligibility of the Holder to acquire the Warrant Shares.
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c. The Holder acknowledges that it has had access to the
reports and other documents filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
and that it has been given an opportunity to ask questions of, and to receive
answers from, the Company's management personnel concerning the Company's
business and the Warrant Shares. The Holder has been provided access to all
materials relating to the business, financial position and results of operations
of the Company, and all other materials requested by the Holder by enable it to
make an informed investment decision with respect to the acquisition of the
Warrant Shares. The Holder has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Company's securities.
d. The Holder is, and upon exercise of the Warrant will be,
(i) an "accredited investor" within the meaning of Rule 501 of Regulation D
under the Securities Act, (ii) experienced in making investments of the kind
represented by the Warrant Shares, and (iii) capable, by reason of its business
and financial experience, of evaluating the relative merits and risks of an
investment in the Warrant Shares.
e. The Holder understands that an investment in the Warrants
involves a high degree of risk, and has the financial ability to bear the
economic risk of this investment in the Warrants, including a complete loss of
such investment. The Holder has adequate means for providing for its current
financial requirements and has no need for liquidity with respect to this
investment.
Date:_______________ Signature:____________________
Address:______________________
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ASSIGNMENT
FOR VALUE RECEIVED _______________________________________
hereby sells, assigns and transfers unto _____________________________________
the foregoing Warrant and all rights evidenced thereby, and does irrevocably
constitute and appoint _____________________________, attorney, to transfer said
Warrant on the books of Symposium Corporation.
Dated:_______________ Signature:_____________________________
Address:______________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby assigns
and transfers unto _________________________ the right to purchase __________
shares of the Common Stock, par value $.001, of Symposium Corporation covered by
the foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of Symposium Corporation.
Dated:_______________ Signature:___________________________
Address:_____________________________
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VESTING SCHEDULE
The Warrant Shares, all of which shall have an Initial Per
Share Exercise Price of $1.75 per share, shall vest as follows; provided,
however, that if International Marketing Association, Inc. ("IMA"), Xxxxx
XxXxxxx or any entity controlled either directly or indirectly by IMA or Xxxxx
XxXxxxx sells an order to any party other than Media Outsourcing, Inc., then no
Warrant Shares shall vest for the three-month period in which such sale is made,
and no further Warrant Shares shall vest after the date of such sale.
1. In the event that during the three-month period commencing
on December 1, 2000, IMA (a) achieves an average monthly order volume of
$1,500,000, net of cancellations (such average monthly order volume, as so
calculated, "Order Volume"), and (b) maintains a minimum paid-to-maturity rate
("Rate") of sixty percent (60%), Twenty Thousand Eight Hundred Thirty Three
(20,833) Warrant Shares shall vest on April 1, 2001.
2. In the event that during the three-month period commencing
on March 1, 2001, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on July 1, 2001.
3. In the event that during the three-month period commencing
on June 1, 2001, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Four (20,834) Warrant Shares shall vest on October 1, 2001.
4. In the event that during the three-month period commencing
on September 1, 2001, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on January 1, 2002.
5. In the event that during the three-month period commencing
on December 1, 2001, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on April 1, 2002.
6. In the event that during the three-month period commencing
on March 1, 2002, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Four (20,834) Warrant Shares shall vest on July 1, 2002.
7. In the event that during the three-month period commencing
on June 1, 2002, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on October 1, 2002.
8. In the event that during the three-month period commencing
on September 1, 2002, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of
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sixty percent (60%), Twenty Thousand Eight Hundred Thirty Three (20,833) Warrant
Shares shall vest on January 1, 2003.
9. In the event that during the three-month period commencing
on December 1, 2002, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Four (20,834) Warrant Shares shall vest on April 1, 2003.
10. In the event that during the three-month period commencing
on March 1, 2003, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on July 1, 2003.
11. In the event that during the three-month period commencing
on June 1, 2003, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Three (20,833) Warrant Shares shall vest on October 1, 2003.
12 In the event that during the three-month period commencing
on September 1, 2003, IMA (a) achieves an Order Volume of $1,500,000 and (b)
maintains a minimum Rate of sixty percent (60%), Twenty Thousand Eight Hundred
Thirty Four (20,834) Warrant Shares shall vest on January 1, 2004.
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