EXHIBIT 4.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
No. W-____
WARRANT TO PURCHASE COMMON STOCK
OF
XXXXXXXX.XXX, INC.
VOID AFTER OCTOBER 18, 2001
This Warrant is issued to __________________________________, or its
registered assigns ("Holder") by XxxxxXxx.xxx, Inc., a Delaware corporation (the
"Company"), on October 18, 1999 (the "Warrant Issue Date").
With respect to the persons and entities set forth under the heading
"Series C Investors" on SCHEDULE A hereto, this Warrant is issued to much Holder
pursuant to the terms of that certain Series C Preferred Stock and Warrant
Purchased Agreement dated as of the date hereof (the "Purchase Agreement").
With respect to the persons and entities set forth under the heading
"Series A investors" on SCHEDULE A hereto, this Warrant is issued to such Holder
as an amendment and restatement of the warrant issued to such Holder pursuant to
that certain Warrant Agreement dated as of April l9, 1999 (the "Existing Warrant
Agreement"). In consideration of the transactions contemplated by the Purchase
Agreement and other good and valid consideration, such Holder represents,
warrants and agrees that it has submitted for cancellation the warrant that such
Holder received pursuant to the Existing Warrant Agreement and that this Warrant
amends and restates such warrant in its entirety. Such Holder represents,
warrants and agrees that the Existing Warrant Agreement has been terminated and
is of no further force and effect.
Collectively, the Warrants referred to in the preceding two paragraphs
shall be referred to as the "Warrants."
1. PURCHASE SHARES. Subject to the terms and conditions hereinafter
set forth and set forth in the Purchase Agreement, the Holder is entitled, upon
surrender of this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the holder hereof in writing), to
purchase from the Company up to ____________________________________________
( ) fully paid and nonassessable shares of Common Stock of
the Company, as constituted on the Warrant Issue Date (the "Common Stock"). The
number of shares of Common Stock issuable pursuant to this Section I (the
"Shares") shall be subject to adjustment pursuant to Section 8 hereof.
2. EXERCISE PRICE. The purchase price for the Shares shall be $4.468,
as adjusted from time to time pursuant to Section 8 hereof (the "Exercise
Price").
3. EXERCISE PERIOD. This Warrant shall be exercisable, in whole or in
part, during the term commencing on the Warrant Issue Date and ending at 5:00
p.m. on the earlier of (i) October 18, 2001 or (ii) the date that is ninety (90)
days after the closing of the Company's sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement on
Form S-1 or Form SB-2 under the Securities Act of 1933, as amended, the public
price of which was not less than $20,000,000 in the aggregate.
4. METHOD OF EXERCISE. While this Warrant remains outstanding and
exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed
copy of the form of Notice of Election attached hereto, to the Secretary of the
Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. NET EXERCISE. In lieu of exercising this Warrant pursuant to
Section 4, the Holder may elect to receive, without the payment by the Holder of
any additional consideration, shares of Common Stock equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of 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 hereof a number of shares of
Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where: X = The number of shares of Common Stock to be issued to the
Holder pursuant to this net exercise;
Y = The number of Shares in respect of which the net issue
election is made;
A = The fair market value of one share of the Common
Stock at the time the net issue election is made;
B = The Exercise Price (as adjusted to the date of the net
issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or through the Nasdaq National Market, the value shall be
deemed to be the average of the closing prices of
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the securities on such exchange over the thirty (30) day period ending three (3)
days prior to the net exercise election; (ii) if traded over-the-counter, the
value shall be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty (30) day period ending three (3) days
prior to the net exercise; and (iii) if there is no active public market, the
value shall be the fair market value thereof, as determined in good faith by the
Board of Directors of the Company. The right of the Holder to elect to net
exercise this Warrant pursuant to this Section 5 shall terminate upon the date
that is ninety (90) days following the Company's closing of a sale of its Common
Stock in a firm commitment underwritten public offering pursuant to a
registration statement on Form S-1 or Form SB-2 (or any successor form) under
the Securities Act of 1933, as amended, the public offering price of which was
not less than $20,000,000 in the aggregate. The preceding sentence shall not
terminate or modify the Holder's right to elect to exercise this Warrant
pursuant to Section 4.
6. CERTIFICATES FOR SHARES. Upon the exercise of the purchase rights
evidenced by this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter (with appropriate
restrictive legends, if applicable), and in any event within thirty (30) days of
the delivery of the subscription notice.
7. ISSUANCE OF SHARES. The Company covenants that the Shares, when
issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens, and charges
with respect to the issuance thereof.
8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number of
and kind of securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Common Stock or Preferred Stock as a dividend with
respect to any shares of its Common Stock, the number of Shares issuable on the
exercise of this Warrant shall forthwith be proportionately increased in the
case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination. Appropriate adjustments shall also be made to the
purchase price payable per share, but the aggregate purchase price payable for
the total number of Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any adjustment under this Section 8(a) shall become effective
at the close of business on the date the subdivision or combination becomes
effective, or as of the record date of such dividend, or in the event that no
record date is fixed, upon the making of such dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION. In case
of any reclassification, capital reorganization, or change in the Common Stock
of the Company (other than as a result of a subdivision, combination, or stock
dividend provided for in Section 8(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made, and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at any
time prior to the expiration of this Warrant to purchase, at a total price equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities and property
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receivable in connection with such reclassification, reorganization, or change
by a holder of the same number of shares of Common Stock as were purchasable by
the Holder immediately prior to such reclassification, reorganization, or
change. In any such case appropriate provisions shall be made with respect to
the rights and interest of the Holder so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or other securities
and property deliverable upon exercise hereof, and appropriate adjustments shall
be made to the purchase price per share payable hereunder, provided the
aggregate purchase price shall remain the same.
(C) NOTICE OF ADJUSTMENT. When any adjustment is required to be
made in the number or kind of shares purchasable upon exercise of the Warrant,
or in the Warrant Price, the Company shall promptly notify the holder of such
event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
9. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
10. NO STOCKHOLDER RIGHTS. Except as otherwise provided in the
Purchase Agreement the Restated Certificate (as defined in the Purchase
Agreement), the Investors' Rights Agreement (as defined in the Purchase
Agreement) the Co-Sale Agreement (as defined in the Purchase Agreement) or
herein, prior to exercise of this Warrant, the Holder shall not be entitled to
any rights of a stockholder with respect to tile Shares, including (without
limitation) the right to vote such Shares, receive dividends or other
distributions thereon, exercise preemptive rights or be notified of stockholder
meetings, and such holder shall not be entitled to any notice or other
communication concerning the business or affairs of tile Company.
11. TRANSFERS OF WARRANT. Subject to compliance with applicable
federal and state securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by the Holder to any person or entity upon
written notice to tile Company. The transfer shall be recorded on the books of
the Company upon the surrender of this Warrant, properly endorsed, to the
Company at its principal offices, and the payment to the Company of all transfer
taxes and other governmental charges imposed on such transfer. In the event of a
partial transfer, the Company shall issue to the holders one or more appropriate
new warrants.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
and the Purchase Agreement shall inure to the benefit of, and be binding upon,
the Company and the Holders hereof and their respective successors and assigns.
13. AMENDMENTS AND WAIVERS. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of seventy percent (70%) of the
shares of Common Stock issued or issuable upon exercise of the Warrants. Any
waiver or amendment effected in accordance with this Section shall be binding
upon each holder of any Shares purchased under this Warrant at the time
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outstanding (including securities into which such Shares have been converted),
each future holder of all such Shares, and the Company.
14. EFFECT OF AMENDMENT OR WAIVER. The Holder acknowledges that by the
operation of Section 13 hereof, the holders of seventy percent (70%) of the
shares of Common Stock issued or issuable upon exercise of the Warrants, will
have the right and power to diminish or eliminate all rights of such holder
under this Warrant or under the Purchase Agreement.
15. ASSUMPTION OF WARRANT. If at any time, while this Warrant or any
portion thereof, is outstanding and unexpired there shall be (i) the acquisition
of the Company by another entity by means of any transaction or series of
related transactions (including, without limitation, any reorganization, merger
or consolidation) that results in the transfer of fifty percent (50%) or more of
the outstanding voting power of the Company or (ii) a sale of all or
substantially all of the assets of the Company, then, as a part of such
acquisition, sale or transfer, lawful provision shall be made so that the Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Exercise Price then in
effect (including by net exercise), the number of shares of stock or other
securities or property of the successor corporation resulting from such
acquisition, sale or transfer which a holder of the shares deliverable upon
exercise of this Warrant would have been entitled to receive in such
acquisition, sale or transfer if this Warrant had been exercised immediately
before such acquisition, sale or transfer, all subject to further adjustment as
provided in this Section 15; and, in any such case, appropriate adjustment (as
determined by the Company's Board of Directors) shall be made in the application
of the provisions herein set portly with respect to the rights and interests
thereafter of the Holder to the end that the provisions set forth herein
(including provisions with respect to changes in and other adjustments of the
number of Warrant Shares of the Holder is entitled to purchase) shall thereafter
by applicable, as nearly as possible, in relation to any shares of Common Stock
or other securities or other property thereafter deliverable upon the exercise
of this Warrant.
16. NOTICES. All notices required under this Warrant and shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
17. ATTORNEYS' FEES. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements in addition
to any other relief to which it may be entitled.
18. CAPTIONS. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this Warrant in
construing or interpreting any provision hereof.
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19. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of New York as applied to agreements among New York residents made and to
be performed entirely within the State of New York.
IN WITNESS WHEREOF, XxxxxXxx.xxx, Inc. caused this Warrant to be
executed by an officer thereunto duly authorized.
XXXXXXXX.XXX, INC.
By: /s/ B XxXxxx
_________________________________________
Title: President and Chief Executive Officer
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SCHEDULE A
SERIES C INVESTORS
Benchmark Capital Partners IV, L.P.
eBay, Inc.
SERIES A INVESTORS
Xxxxxxxxx-Xxxxx Partners III, L.P.
JFI-TO, L.L.C.
GFI-TO, L.L.C.
Channel-TO, L.L.C.
Xxxxx Xxxxx
MRB Holding Co., LLC
Xxxxxx Xxxxxxxxx
Xxxxxxxxx Trust Company Limited as Trustees of the Gadjzus Trust
Interlink Metals and Chemicals X.X.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
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NOTICE OF EXERCISE
To: XXXXXXXX.XXX, INC.
The undersigned hereby elects to [CHECK APPLICABLE SUBSECTION]:
(a) Purchase _______________ shares of Common Stock of,
_______________, pursuant to the terms of the attached Warrant and
payment of the Exercise Price per share required under such
Warrant accompanies this notice;
OR
(b) Exercise the attached Warrant for [___ of the shares]
[____________ of the shares] [CROSS OUT INAPPLICABLE PHRASE]
purchasable under the Warrant pursuant to the net exercise
provisions of Section 5 of such Warrant.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account for investment purposes only, and not
for resale or with a view to distribution of such shares or any part thereof.
WARRANTHOLDER:
____________________________________
By:_________________________________
[NAME]
Address:____________________________
Date:_____________________________________
Name in which shares should be registered:
__________________________________________
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