EXHIBIT 4.5
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE SERIES A CONVERTIBLE PREFERRED STOCK
OF
SITEBRIDGE CORPORATION
No. WA-1 Date of Issuance - May 5, 1998
This certifies that, for value received, CHELSEA CAPITAL PARTNERS LLC, a
New York limited liability company, or its registered assigns ("Holder") is
entitled, subject to the terms set forth below, to purchase from SITEBRIDGE
CORPORATION, a Delaware corporation (the "Company"), Sixty-Five Thousand Six
Hundred Sixty-Seven (65,667) shares of the Series A Convertible Preferred Stock
of the Company (the "Series A Preferred Stock"), as constituted on the date
hereof (the "Warrant Issue Date"), upon surrender hereof, at the principal
office of the Company referred to below, with the Notice of Exercise form
attached hereto duly executed, and simultaneous payment therefor in lawful money
of the United States at the Exercise Price as set forth in Section 2 below. The
number, character and Exercise Price of such shares of Series A Preferred Stock
are subject to adjustment as provided below. The term "Warrant" as used herein
shall include 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 closing of the sale and issuance of shares of Series A
Preferred Stock pursuant to that certain Series A Convertible Preferred Stock
Purchase Agreement dated May __, 1998 by and between the Company and the
Investors (as such term is defined in such purchase agreement) and ending at
5:00 p.m., Eastern Standard Time five (5) years thereafter, unless such term is
extended by the unanimous vote of the Company's Board of Directors, and shall be
void thereafter (the "Term").
2 Exercise Price. The Exercise Price at which this Warrant may be
--------------
exercised shall be One Dollar Eighty Cents ($1.80) per share of Series A
Preferred Stock, as adjusted from time to time pursuant to Section 11 hereof
(the "Exercise Price").
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3 Exercise of Warrant.
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(a) The purchase rights represented by this Warrant are exercisable by the
Holder in whole or in part, but not for less than five thousand (5,000) shares
at a time (or such lesser number of shares which may then constitute the maximum
number purchasable; such number being subject to adjustment as provided in
Section 11 below), at any time, or from time to time, during the Term hereof as
described in Section 1 above, by the surrender of this Warrant and the Notice of
Exercise annexed hereto as Exhibit A duly completed and executed on behalf of
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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), upon payment in cash or by
check acceptable to the Company in an amount equal to the product of the
Exercise Price set forth in Section 2 above multiplied by the number of shares
of Series A Preferred Stock being purchased upon such exercise.
(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 Series A Preferred 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.
6 Rights of Stockholders. This Warrant shall not entitle the Holder to
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any of the rights of a stockholder of the Company.
7 Transfer of Warrant.
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(a) Warrant Register. The Company will maintain a register (the 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
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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) Transferability and Nonnegotiability of Warrant and Underlying Series A
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Preferred Stock. This Warrant may 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). 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 as Exhibit B) and
---------
delivery in the same manner as a negotiable instrument transferable by
endorsement and delivery. Both the Series A Preferred Stock and the Common Stock
to be issued upon exercise hereof or conversion thereof, may not be transferred
or assigned in whole or in part without (i) 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)
and (ii) pursuant to the terms and conditions of that certain Investors' Rights
Agreement dated as of May __, 1998, by and among the Company, the Holder and
certain stockholders of the Company, as amended from time to time (the
"Investors' Rights Agreement").
(c) 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 thereof.
(d) Compliance with Securities Laws and the Investors' Rights Agreement.
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(1) The Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the shares of Series A Preferred Stock or Common Stock to
be issued upon exercise hereof or conversion thereof 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 Series A Preferred Stock
or Common Stock to be issued upon exercise hereof or conversion thereof
except under circumstances that will not result in a violation of the Act
or any state securities laws. Upon 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 Series A Preferred Stock
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or Common Stock so purchased are being acquired solely for the Holder's own
account arid not as a nominee for any other party, for investment, and not
with a view toward distribution or resale, except under circumstances that
will not result in a violation of the Act or any state securities laws.
(2) The Holder of this Warrant, by acceptance hereof, acknowledges
that the shares of Series A Preferred Stock or Common Stock to be issued
upon exercise hereof or conversion thereof will not be offered, sold, or
otherwise disposed of except in compliance with the terms and conditions of
the Investors' Rights Agreement.
(3) This Warrant and all shares of Series A Preferred Stock
or Common Stock issued upon exercise hereof or conversion thereof
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 BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES AND ANY SECURITIES OR
SHARES ISSUED HEREUNDER OR THEREUNDER 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 THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
THE SHARES OF STOCK UNDERLYING THIS WARRANT ARE
SUBJECT TO CERTAIN RIGHTS RESTRICTIONS UPON THE
SALE, ASSIGNMENT, TRANSFER, PLEDGE OR ENCUMBRANCE
OF THE SHARES AS SET FORTH IN A INVESTORS' RIGHTS
AGREEMENT, AS AMENDED, A COPY OF WHICH IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE
OF THE COMPANY. THE SHARES REPRESENTED BY THIS
WARRANT MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR ENCUMBERED, EXCEPT IN CONFORMITY WITH
THE TERMS OF SUCH INVESTORS RIGHTS' AGREEMENT.
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8 Reservation of Stock. The Company covenants that during the Term this
--------------------
Warrant is exercisable, the Company will reserve from its authorized and
unissued Series A Preferred Stock a sufficient number of shares to provide for
the issuance of Series A Preferred Stock upon the exercise of this Warrant (and
shares of its Common Stock for issuance on conversion of such Series A Preferred
Stock) and, from time to time, will take all steps necessary to amend its
Restated Certificate of Incorporation, as amended from time to time (the
"Certificate") to provide sufficient reserves of shares of Series A Preferred
Stock issuable upon exercise of the Warrant (and shares of its Common Stock for
issuance on Conversion of such Series A Preferred Stock). The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant, upon exercise of the 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 Series A Preferred Stock upon the exercise of this Warrant.
9 Notices.
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(a) Whenever the Exercise Price or number of shares purchasable hereunder
shall be adjusted pursuant to Section 11 hereof, the Company shall issue a
certificate signed by its Treasurer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated and the Exercise Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the Holder of this Warrant as provided in Section 12.1 hereof.
(b) In case
(1) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time receivable upon the exercise of
this Warrant) for the purpose of entitling them to receive any dividend or
other distribution, or any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any other right,
or
(2) the Company, any reclassification of the capital stock of the
Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of
the Company to another corporation, or
(3) of any voluntary dissolution, liquidation of winding-up of the
Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be
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taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (B) the date on
which such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Series A Preferred Stock or
Common Stock (or such stock or securities at the time receivable upon the
exercise of this Warrant) shall be entitled to exchange their shares of Series A
Preferred Stock or Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten business (10) days prior to
the date therein specified.
(c) All such notices, advices and communications shall be deemed to have
been received (i) in the case of personal delivery, on the date of such delivery
and (ii) in the case of mailing, on the third (3) business day following the
date of such mailing
10 Amendments.
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(a) Any term of this Warrant may be amended with the written consent of
the Company and the Holder.
(b) No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
11 Adjustments. The Exercise Price and the number of shares purchasable
-----------
hereunder are subject to adjustment from time to time as follows:
11.1 Conversion of Series A Preferred Stock. Should all of the Company's
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Series A Preferred Stock be, or if outstanding would be, at any time prior to
the expiration of this Warrant or any portion thereof, converted into shares of
the Company's Common Stock in accordance with Section 6 of the Certificate
setting forth the rights, privileges and preferences of the Series A Preferred
Stock, then this Warrant shall become exercisable for that number of shares of
the Company's Common Stock equal to the number of shares of the Common Stock
which would have been received if this Warrant had been exercised in full and
the Series A Preferred Stock received thereupon had been simultaneously
converted immediately prior to such event, and the Exercise Price shall be
immediately adjusted to equal the quotient obtained by dividing (x) the
aggregate Exercise Price of the maximum number of shares of Series A Preferred
Stock for which this Warrant was exercisable immediately prior to such
conversion or redemption, by (y) the number of shares of Common Stock for which
this Warrant is exercisable immediately after such conversion or redemption.
11.2 Merger, Sale of Assets, Etc.
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(a) If at any time, while this Warrant, or any portion thereof, is
outstanding and unexpired there shall be (i) a reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), (ii) a
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merger or consolidation of the Company with or into another corporation in which
the Company is not the surviving entity, or a reverse triangular merger in which
the Company is the surviving entity but the shares of the Company's capital
stock outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of substantially all of the Company's
properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation, sale or transfer, lawful provision shall
be made so that the holder of this Warrant 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, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer which a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section 11.2 shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation which are
at the time receivable upon the exercise of this Warrant. If the per share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
(b) Notices of Record Date. In the event that the Company shall propose at
----------------------
any time to merge with or into any other corporation, or sell, lease or convey
all or substantially all its property or business, or to liquidate, dissolve or
wind up, then the Company shall send to the holder of this Warrant at least
twenty (20) days' prior written notice of the date on which a record shall be
taken for determining rights to vote in respect of such event.
11.3 Reclassification, etc. If the Company at any time while this Warrant,
---------------------
or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in Section 11.
11.4 Split, Subdivision or Combination of Shares. If the Company at any
-------------------------------------------
time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split,
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subdivide or combine the securities as to which purchase rights under this
Warrant exist, into a different number of securities of the sarne class, the
number of shares of such securities available for purchase in effect immediately
prior to such subdivision, combination, or dividend or other distribution and
the Exercise Price per share for such securities shall be proportionately
adjusted. Adjustments set forth herein shall be readjusted in the same manner
for any successive event or events described herein.
11.5 Adjustments for Dividends in Stock or Other Securities or Property. If
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while this Warrant, or any portion hereof, remains outstanding and unexpired the
holders of the securities as to which purchase rights under this Warrant exist
at the time shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive,
without payment therefor, other or additional stock or other securities or
property (other than cash) of the Company by way of dividend, then and in each
case, this Warrant shall represent the right to acquire, in addition to the
number of shares of the security receivable upon exercise of this Warrant, and
without payment of any additional consideration therefor, the amount of such
other or additional stock or other securities or property (other than cash) of
the Company which such holder would hold on the date of Such exercise had it
been the holder of record of the security receivable upon exercise of this
Warrant on the date hereof and had thereafter, during the period from the date
hereof to and including the date of such exercise, retained such shares and/or
all other additional stock available by it as aforesaid during such period,
giving effect to all adjustments called for during such period by the provisions
of this Section 11.
11.6 Certificate as to Adjustments. Upon the occurrence of each adjustment
-----------------------------
or readjustment pursuant to this Section 11, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to each holder of this Warrant a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written
request, at any time, of any such holder, furnish or cause to be furnished to
such holder a like certificate setting forth: (i) such adjustments and
readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property which at the time
would be received upon the exercise of the Warrant.
11.7 No Impairment. The Company will not, by any voluntary action, avoid or
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seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 11 and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holders of this Warrant against impairment.
12 Miscellaneous.
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12.1 Notices. Any notices required to be sent to a Holder will be
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delivered to the address of such Holder shown on the books of the Company. All
notices referred to
-8-
herein will be delivered in person or sent by first class mail, postage prepaid,
and will be deemed to have been given when so delivered or sent.
12.2 Descriptive Headings; Governing Law. The descriptive headings of the
-----------------------------------
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. The construction, validity and interpretation
of this Warrant will be governed by the laws of the State of Delaware, without
regard to principles of conflicts or choice of law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, SITEBRIDGE CORPORATION caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated: May 5, 1998
SITEBRIDGE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
President
HOLDER:
/s/ Xxxxx X. Xxxxxxx
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CHELSEA CAPITAL PARTNERS
Name: Xxxxx X. Xxxxxxx
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Title: Managing Member
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EXHIBIT B
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FORM OF ASSIGNMENT FORM
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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 Series A Preferred Stock (or Common Stock) set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ______________ ___________
Attorney to make such transfer on the books of SITEBRIDGE CORPORATION 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 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
___________________________________________
(Witness)
B-1
