EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
LINKSHARE CORPORATION
WARRANT TO PURCHASE COMMON STOCK
Issue date: _______________, 2000
1. General. THIS CERTIFIES THAT, _________ (the "Holder") is entitled to
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subscribe for and purchase up to ______ shares of fully paid and nonassessable
common stock of LinkShare Corporation, a Delaware corporation (the "Company"),
at a price of $1.00 per share (the "Exercise Price") subject to the provisions
and upon the terms and conditions hereinafter set forth. This warrant (this
"Warrant") is being issued to the Holder in connection with a promissory note
issued by the Company to the Holder on February 7, 2000.
2. Exercise Period. This Warrant may be exercised by the Holder at any time
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and from time to time beginning the issue date above for a term of five (5)
years.
3. Method of Exercise; Payment
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a. Cash Exercise. The Holder may exercise this Warrant in whole or in part, by
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surrendering this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and by the
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payment to the Company, by certified, cashier's or other check acceptable to the
Company, of an amount equal to the aggregate purchase price of the shares of
common stock being purchased.
b. Net Issue Exercise. In lieu of exercising this Warrant with cash, the
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Holder may elect to receive shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrendering this Warrant at the principal
office of the Company together with notice of such election, in which event the
Company shall issue to the Holder a 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 share of common stock to be issued to the
Holder;
Y = the number of share of common stock purchasable under this
Warrant or, if only a portion of this Warrant is being
exercised, the portion of this Warrant being canceled (at the
date of such calculation);
A = the Fair Market Value (as defined below) of a share of common
(at the date of such calculation); and
B = the Exercise Price (on the date of such calculation).
c. Fair Market Value. The "Fair Market Value" of a share of common stock shall
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be as follows:
i. if the Company's common stock is traded on an exchange or is quoted on the
Nasdaq National Market, the closing price of the business day immediately
preceding the exercise date; or
ii. otherwise, as determined in good faith by the Company's board of directors.
d. Stock Certificates. In the event the Holder exercises any of the rights
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represented by this Warrant to purchase the Company's common stock, the Company
shall deliver to the Holder certificates representing such shares within a
reasonable time and, unless the Holder has fully exercised this Warrant or the
Warrant has expired, a new warrant representing the remaining shares underlying
this Warrant.
4. Reservation of Shares. The Company covenants and agrees that all shares of
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common stock which may be issued upon the exercise of this Warrant will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable, free
from all preemptive rights of any shareholder and free from all taxes, liens and
charges created by the Company with respect to the issue thereof. During the
period within which the Holder may exercise this Warrant, the Company will at
all times have authorized, and reserved for the purpose of issuance upon
exercise of this Warrant, a sufficient number of shares of common stock to
provide for the exercise of the rights represented by this Warrant.
5. Adjustment of Exercise Price and Number of Shares. The number and kind of
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securities purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment
from time to time upon the occurrence of certain events as follows:
a. Reclassification or Merger. In case of any reclassification, change or
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conversion of securities of the class issuable upon exercise of this Warrant
(other than a change in par value or as a result of a subdivision or
combination), or in case of any merger of the Company with or into another
company (other than (i) a merger effected solely for the purpose of changing the
Company's jurisdiction of incorporation or (ii) a merger with another company in
which the Company is the acquiring and surviving corporation and which does not
result in any reclassification or change of outstanding securities issuable upon
exercise of this Warrant), or in case of any sale of all or substantially all of
the assets of the Company, the Company, or such successor or purchasing company,
as the case may be, shall duly execute and deliver to the Holder a new warrant,
so that the Holder shall have the right to receive, at a total purchase price
not to exceed that payable upon the exercise of the unexercised portion of this
Warrant, and in lieu of the common stock theretofore issuable upon exercise of
this Warrant, the kind and amount of shares of stock, other securities, money
and property receivable upon such reclassification, change or merger by a holder
of the number of shares of common stock under this Warrant. Such new warrant
shall provide for adjustments as nearly equivalent as may be practicable to the
adjustments provided for in this section. The provisions of this subparagraph
(a) shall similarly apply to successive reclassifications, changes, mergers,
consolidations and transfers.
b. Combination or Subdivision of Shares. If the Company at any time while this
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Warrant remains outstanding and unexpired shall combine its outstanding shares
of common stock, the number of shares purchasable shall be proportionally
decreased and the Exercise Price proportionally increased effective concurrently
with such combination. In the case of a subdivision, the number of shares
purchasable shall be proportionally increased and the Exercise Price
proportionally decreased effective concurrently with such subdivision.
c. Stock Dividends. If the Company at any time while this Warrant is
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outstanding and unexpired shall pay a dividend with respect to common stock in
common stock, then the Exercise Price shall be adjusted, from and after the date
of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of common stock
outstanding immediately prior to such dividend or distribution and (ii) the
denominator of which shall be the total number of shares of common stock
outstanding immediately after such dividend or distribution.
6. Fractional Shares. No fractional shares will be issued in connection with
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any exercise hereunder, but in lieu of such fractional shares the Company shall
make a cash payment therefor upon the basis of the Exercise Price then in
effect.
7. Compliance with Securities Law. The Holder, by acceptance hereof, agrees
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that the Holder is acquiring this Warrant, and the shares of common stock to be
issued upon exercise hereof, for investment and 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 which will not result in a
violation of the Securities Act of 1933 (the "Securities Act"). Upon exercise
of this Warrant, unless the shares being acquired are registered under the
Securities Act or an exemption from such registration is available, the holder
hereof shall confirm in writing, by executing the form attached as Schedule 1 to
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Exhibit A hereto, that the common stock so acquired are being acquired for
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investment and not with a view towards distribution or resale. This Warrant and
all shares of common stock issued upon exercise of this Warrant shall be stamped
or imprinted with a legend in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED."
8. Transferability. Subject to compliance with applicable federal and state
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securities laws, this Warrant and all rights hereunder are transferable, in
whole or in part, without charge to the Holder hereof (except for transfer
taxes), upon surrender of this Warrant properly endorsed.
9. Rights as Shareholders. No Holder, solely as such, shall be entitled to
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vote or receive dividends or be deemed a shareholder of the Company.
10. Modification and Waiver. This Warrant and any provision hereof may be
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changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notices of Change.
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a. Promptly upon any adjustment in the number or class of shares subject to
this Warrant and of the Exercise Price, the Company shall give written notice
thereof to the Holder, setting forth in reasonable detail and certifying the
calculation of such adjustment.
b. The Company shall give written notice to the Holder at least ten (10)
business days prior to the date on which the Company closes its books or takes a
record for determining rights to receive any dividends or distributions.
12. Transfer Books. The Company will at no time close its transfer books
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against the transfer of this Warrant or of any shares of common stock issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant.
13. Loss, Theft, Destruction, or Mutilation. The Company represents and
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warrants to the Holder that, upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction, or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation
upon surrender and cancellation of this Warrant, the Company, at the Holder's
expense, will make and deliver a new warrant of like tenor in lieu of the lost,
stolen, destroyed or mutilated Warrant.
14. Notices. Any notice, request, communication or other document required or
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permitted to be given or delivered to the Holder or the Company shall be
delivered via overnight courier by certified or registered mail, postage
prepaid, to the Holder's address as shown on the books of the Company or to the
Company at the address indicated on the signature page of this Warrant.
15. Binding Effect on Successors. Except as otherwise set forth herein, this
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Warrant shall be binding upon any company succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets.
16. Descriptive Headings. The descriptive headings of the several paragraphs
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of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
17. Governing Law. This Warrant shall be construed and enforced in accordance
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with, and the rights of the parties shall be governed by, the laws of the State
of New York.
18. Acceptance. Receipt of this Warrant by the holder hereof shall constitute
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acceptance of and agreement to the foregoing terms and conditions.
LinkShare Corporation
000 Xxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
By:
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Name:
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Title:
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EXHIBIT A
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NOTICE OF EXERCISE
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TO: LinkShare Corporation
1. The undersigned hereby elects to purchase __________ shares of common
stock of LinkShare Corporation pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please initial the applicable blank.):
______The undersigned elects to exercise the attached Warrant by means of
a cash payment, and tenders herewith payment in full for the purchase price of
the shares being purchased, together with all applicable transfer taxes, if any.
______The undersigned elects to exercise the attached Warrant by means of
the net exercise provisions of the Warrant.
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:
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(Name)
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(Address)
4. The undersigned hereby represents and warrants that the aforesaid
shares of common stock are being acquired for the account of the undersigned for
investment and not with a view to or for resale in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares. The undersigned hereby delivers an
Investment Representation Statement in the form attached to the Warrant as
Schedule 1 to Exhibit A.
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Date: By:
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Name:
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Title:
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(if applicable)
Schedule 1
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INVESTMENT REPRESENTATION STATEMENT
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Purchaser:
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Security: Common stock
Amount:
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Date:
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In connection with the purchase of the above-listed shares of common
stock (the "Securities"), the undersigned (the "Purchaser") represents to
LinkShare Corporation (the "Company") as follows:
(a) The Purchaser is aware of the Company's business affairs and
financial condition, and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Securities. The
Purchaser is purchasing the Securities for its own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Securities Act").
(b) The Purchaser understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of the Purchaser's investment intent as expressed herein. In this
connection, the Purchaser understands that, in the view of the Securities and
Exchange Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if the Purchaser's representation was predicated solely upon a
present intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future.
(c) The Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, the Purchaser
understands that the Company is under no obligation to register the Securities.
In addition, the Purchaser understands that the certificate evidencing the
Securities will be imprinted with the legend referred to in the Warrant under
which the Securities are being purchased.
(d) The Purchaser is aware of the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permit limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, if
applicable, including, among other things: The availability of certain public
information about the Company, the resale occurring not less than one year after
the party has purchased and paid for the securities to be sold; the sale being
made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934, as amended) and the amount of securities being
sold during any three-month period not exceeding the specified limitations
stated therein.
(e) The Purchaser further understands that at the time it wishes to sell
the Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144 and that, in
such event, the Purchaser may be precluded from selling the Securities under
Rule 144 even if the one-year minimum holding period had been satisfied.
(f) The Purchaser further understands that in the event all of the
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required, and that, notwithstanding the fact that Rule 144 is not exclusive, the
SEC has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
PURCHASER
By:
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Name:
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Title:
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(if applicable)
