EXHIBIT 10.9
Neither this Warrant nor the shares of Common Stock issuable upon exercise of
this Warrant have been registered under the Securities Act of 1933, and this
Warrant cannot be sold or transferred, and the shares of Common Stock issuable
upon exercise of this Warrant cannot be sold or transferred, unless and until
they are so registered or upon receipt of an opinion of Warrantholder's counsel,
satisfactory to the Corporation, that such registration is not then required
under the circumstances of such sale or transfer.
REAL EDUCATION, INC.
COMMON STOCK PURCHASE WARRANT
EXPIRING JUNE 11, 2000
No. 001
WARRANTHOLDER: ________________________
NAME: __________________________________________________________
ADDRESS: ________________________
No. of Shares of Common Stock to be issued upon exercise in full: _______
Purchase price per share: $7.58
For Value Received, Real Education, Inc., a Colorado corporation (the
"Corporation"), promises to issue to the holder of this Warrant
("Warrantholder"), its nominees, successors or assigns the nonassessable shares
(the "Shares") of the Common Stock, no par value (as more fully defined in
Section 2.8 below), of the Corporation at any time on or prior to June 11, 2000
(the "Expiration Date") upon the payment by the Warrantholder to the Corporation
of the purchase price per share set forth above (the "Purchase Price") and to
deliver to the Warrantholder a certificate or certificates representing the
Shares purchased. The Warrantholder shall have the right to exercise this
Warrant in whole or in part at any time or times on or prior to the Expiration
Date. Subject to the conditions hereinafter set forth, the Warrantholder may
sell, assign and transfer this Warrant, in whole or in part, and, in the event
of any such sale, assignment and transfer, the Corporation agrees to reissue a
Warrant or Warrants of like tenor for the unexercised portion hereof. The number
of Shares purchasable upon exercise of this Warrant and the Purchase Price per
Share shall be subject to adjustment from time to time as set forth herein.
1. Covenants of the Corporation. The Corporation will at all times reserve
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and keep available out of its authorized shares of Common Stock or its treasury
shares, solely for the purpose of issue upon the exercise of this Warrant as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the exercise of this Warrant. The Corporation
covenants that all shares of Common Stock which shall be so issued shall be duly
and validly issued and fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issuance thereof. The Corporation will
take all such action as may be necessary to assure that all such shares of
Common Stock may be so issued without violation of any applicable requirements
of any federal or state securities laws or of any national stock exchange upon
which the shares of Common Stock of the Corporation may be listed. The
Corporation will not take any action which results in any adjustment of the
Purchase Price if the total number of shares of Common Stock issuable after such
action upon exercise of this Warrant would exceed the total number of shares of
Common Stock then authorized by the Corporation's Articles of Incorporation.
2. Terms of Warrant.
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2.1. Dividends. No payment or adjustment shall be made upon any exercise of
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this Warrant on account of any previous cash dividends.
2.2. Purchase Price. The Purchase Price shall be $7.58 per share or, in
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case an adjustment of such price has taken place pursuant to the provisions of
this Section 2, then the Purchase Price shall be the price as last adjusted and
in effect at the date this Warrant (or any part hereof) is surrendered for
exercise.
2.3. Adjustment of Purchase Price. Upon each adjustment of the Purchase
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Price, the Warrantholder shall thereafter be entitled to purchase at the
adjusted Purchase Price, the number of shares of Common Stock obtained by
multiplying the Purchase Price in effect immediately prior to such adjustment by
the number of shares of Common Stock purchasable immediately prior to such
adjustment and dividing the product by the Purchase Price as adjusted. No
adjustment of the Purchase Price shall be made in an amount less than $.01 per
share, but any such lesser adjustment shall be carried forward and shall be made
at the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to $.01 per share or more.
2.4. Subdivision or Combination of Stock.
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(a) In case the Corporation shall at any time subdivide its outstanding
shares of Common Stock into a greater number of shares or declare a dividend or
make any other distribution upon the Common Stock of the Corporation payable in
Common Stock, the Purchase Price in effect immediately prior to such
subdivision, dividend or distribution shall be proportionately reduced, and
conversely, in case the outstanding shares of Common Stock of the Corporation
shall be combined into a smaller number of shares, the Purchase Price in effect
immediately prior to such combination shall be proportionately increased.
(b) Record Date. In case the Corporation shall take a record of the
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holders of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution payable in Common Stock, then such record date
shall be deemed to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution, as the case may be.
2.5. Reorganization, Reclassification, Consolidation, Merger or Sale.
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(a) If any capital reorganization or reclassification of the capital stock
of the Corporation, or any consolidation or merger of the Corporation with
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then the Corporation agrees that, as a condition of
such reorganization, reclassification, consolidation, merger or sale, it shall
require that lawful and adequate provisions be made whereby the holder of this
Warrant shall thereafter have the right to receive upon the basis and upon the
terms and conditions specified herein and in lieu of the shares of Common Stock
of the Corporation immediately theretofore receivable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately receivable upon
the exercise of this Warrant had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of such holder
to the end that the provisions hereof (including without limitation provisions
for adjustments of the Purchase Price) shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of this Warrant.
(b) In the event of a merger or consolidation of the Corporation with or
into another corporation as a result of which a greater or lesser number of
shares of common stock of the surviving corporation are issuable to holders of
Common Stock of the Corporation outstanding immediately prior to such merger or
consolidation, then the Purchase Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as though there
were a subdivision or combination of the outstanding shares of Common Stock of
the Corporation. The Corporation will not effect any such consolidation, merger
or sale, unless prior to the consummation thereof the successor corporation (if
other than the Corporation) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument executed
and mailed or delivered to the registered holder hereof at the last address of
such holder appearing on the books of the Corporation, the obligation to deliver
to such holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to receive.
(c) If a purchase, tender or exchange offer is made to and accepted by the
holders of more than 50% of the outstanding shares of Common Stock of the
Corporation, the Corporation shall not effect any consolidation, merger or sale
with the person having made such offer or with any affiliate of such person,
unless prior to the consummation of such consolidation, merger or sale the
holder hereof shall have been given a reasonable opportunity to then elect to
receive, upon exercise of this Warrant, either the stock, securities or assets
then issuable with respect to the Common Stock of the Corporation or the stock,
securities or assets, or the equivalent, issued to previous holders of the
Common Stock in accordance with such offer.
2.6. Notice of Adjustment. Upon any adjustment of the Purchase Price, then
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and in each such case the Corporation shall give written notice thereof, which
notice shall state the Purchase Price resulting from such adjustment, setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based.
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2.7. Other Notices. In case at any time:
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(a) the Corporation shall declare any dividend upon its Common Stock
payable in stock;
(b) the Corporation shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Corporation, or consolidation or merger of the Corporation
with, or sale of all or substantially all of its assets to, another corporation;
or
(d) there shall be a voluntary dissolution, liquidation or winding up of
the Corporation; then, in any one or more of said cases, the Corporation shall
give, (i) at least 20 days prior written notice of the date on which the books
of the Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least 20 days prior written notice of the date
when the same shall take place. Such notice in accordance with the foregoing
clause (i) shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock shall be
entitled thereto, and such notice in accordance with the foregoing clause (ii)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
2.8. Definition of Common Stock. As used in this Section 2, the term
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"Common Stock" shall mean and include all of Corporation's authorized Common
Stock, no par value, of any class as constituted on the effective date hereof,
and shall also include any capital stock of any class of the Corporation
thereafter authorized which shall not be limited to a fixed sum or percentage of
par value in respect of the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
2.9. Issue Tax. The issuance of certificates for shares of Common Stock
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upon exercise of this Warrant shall be made without charge to the holder hereof
for any issuance tax in respect thereof, provided that the Corporation shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the holder of this Warrant.
2.10. Closing of Books. The Corporation will not close its books against
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the transfer of any shares of Common Stock issued or issuable upon the exercise
of this Warrant.
3. Transferability and Registration Under Securities Act.
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3.1. (1) The Warrants have not been registered under the Securities Act of
1933, as amended (the "Act"), or the securities laws of any state, based upon an
exemption from such registration requirements for non-public offerings pursuant
to Regulation D under the Act; (2) the Warrants are and will be "restricted
securities", as said term is defined in Rule 144 of the Rules and Regulations
promulgated under the Act; (3) the Warrants may not be sold or otherwise
transferred unless they have been first registered under the Act and all
applicable state securities laws, or unless exemptions from such registration
provisions are available with respect to said resale or transfer; (4) the
Corporation is under no obligation to register the Warrants under the Act or any
state securities laws, or to take any action to make any exemption from any such
registration provisions available; and (5) stop transfer instructions will be
placed with the transfer agent for the Warrants;
3.2. The Warrants or any interest therein may not be sold or transferred
unless and until: (1) said Warrants shall have first been registered under the
Act and all applicable state securities laws; or (2) the Warrantholder shall
have first delivered to the Corporation a written opinion of counsel (which
counsel and opinion (in form and substance) shall be reasonably satisfactory to
the Corporation), to the effect that the proposed sale or transfer is exempt
from the registration provisions of the Act and all applicable state securities
laws. The restrictions of this Section 3.2 shall also apply to the
transferability and registration of any shares of Common Stock or other
securities acquired upon exercise hereof.
3.3. The Shares issuable upon exercise of this Warrant are subject to the
provisions of a certain Registration Agreement, dated June 11, 1997 between the
Corporation and certain investors.
4. Notice. Any notice or other document required or permitted to be
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given or delivered to the Warrantholder(s) and holder(s) of shares issued upon
exercise of this Warrant shall be sent by certified or registered mail, return
receipt requested, to the Warrantholder at the address now shown on this Warrant
or at such other address as the holder(s) shall furnish to the Corporation in
writing. Any notice or other document required or permitted to be given or
delivered to the Corporation at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 or such other address as shall have been furnished to the
Warrantholder(s) and holder(s) of Shares by the Corporation.
5. Manner of Exercise of Warrant. In order to exercise this Warrant, the
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Warrantholder shall deliver to the Corporation (i) a written notice of such
holder's election to exercise this Warrant, specifying the number of shares of
Common Stock to be purchased, and (ii) payment in cash or by a certified or
cashier's check of the required Purchaser Price. The Corporation may require the
Warrantholder to furnish a written statement that the Shares are being purchased
for its own account and not with a view to the distribution thereof. Upon
receipt of written notice, the Corporation shall as promptly as practicable
execute or cause to be executed and delivered to such holder a certificate or
certificates representing the aggregate number of Shares purchased. If this
Warrant shall have been exercised only in part, the Corporation shall also
deliver a new Warrant of like tenor evidencing the rights of such holder to
purchase the remaining Shares called for by this Warrant.
6. Limitation of Liability. No provisions hereof, in the absence of
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affirmative action by the Warrantholder to purchase Shares hereunder, and no
mere enumeration herein of the
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rights or privileges of the Warrantholder shall give rise to any liability of
such holder for the Purchase Price or as a shareholder of the Corporation
(whether such liability is asserted by the Corporation or creditors of the
Corporation).
7. Mutilated Or Missing Warrant. In case the certificate or certificates
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evidencing the Warrant shall be mutilated, lost, stolen or destroyed, the
Corporation shall, at the request of the Warrantholder, issue and deliver in
exchange and substitution for the certificate or certificates lost, stolen or
destroyed a new Warrant certificate or certificates of like tenor and
representing an equivalent right or interest. The Warrantholder shall indemnify
the Corporation for the reasonable cost of issuing and delivering any
certificate under the terms of this Section 7 and for any direct and foreseeable
damages incurred by the Corporation with respect to such lost, stolen or
destroyed certificates that do not arise from the Corporation's gross negligence
or willful misconduct.
8. Miscellaneous.
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8.1. Amendment and Waiver. No modification, amendment or waiver of any
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provision of this Warrant shall be effective against the Corporation or the
Warrantholder unless such modification, amendment or waiver is approved in
writing by the Corporation and the Warrantholder. The failure of any party to
enforce any of the provisions of this Warrant shall in no way be construed as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Warrant in accordance
with its terms.
8.2. Applicable Law. This Warrant shall be deemed to be a contract made
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under the laws of the State of Colorado and for all purposes shall be construed
in accordance with the laws of said State.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its President or a Vice President, thereunto duly authorized, the execution
hereof to be attested by its Secretary or an Assistant Secretary; and the
affixing of its corporate seal on this ____ day of ____, ____.
ATTEST
Real Education, Inc.
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