Exhibit 10.49
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THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE SUBJECT
TO CANCELLATION (IN SOME CASES, WITHOUT PAYMENT OF ADDITIONAL CONSIDERATION) AND
THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. AOL-1 Number of Shares: 721,385
Date of Issuance: ___________
SWITCHBOARD INCORPORATED
Common Stock Purchase Warrant
Switchboard Incorporated, a Delaware corporation (the "Company"), for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby certifies that America Online, Inc., a Delaware corporation
("AOL"), or its registered assigns (the "Registered Holder"), is entitled,
subject to the terms and conditions set forth below, to purchase from the
Company, at any time or from time to time during the period commencing on the
Date of Issuance indicated above (the "Date of Issuance") and expiring at 5:00
p.m. (Boston time) on the date five years subsequent to the Date of Issuance,
721,385 shares of common stock, $.01 par value per share, of the Company (the
"Common Stock"), at a purchase price of $4.32 per share. The shares purchasable
upon exercise of this Warrant (this "Warrant"), and the purchase price per
share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the "Warrant Shares" and the "Purchase
Price", respectively.
This Warrant is being issued by the Company to AOL pursuant to that certain
Common Stock and Warrant Purchase Agreement dated as of December 11, 2000
between the Company and AOL (the "Purchase Agreement"). This Warrant and any
and all Warrant Shares are subject to the agreements set forth in the Purchase
Agreement, including, without limitation, certain restrictions on transfer and
the exercise of this Warrant, all of which terms are incorporated in this
Warrant. A copy of the Purchase Agreement is available for inspection at the
office of the Secretary of the Company.
In connection with the issuance of this Warrant, AOL has executed an
investment letter in the form appended hereto as Exhibit A. This Warrant and
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all rights of the Registered Holder hereunder shall be null and void and no
Warrant Shares may be issued pursuant to this Warrant until such executed
investment letter has been delivered by AOL to the Company and is in full force
and effect.
1. Exercise.
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(a) Subject to Section 5.4 of the Purchase Agreement, this Warrant
may be exercised by the Registered Holder, in whole or in part, by surrendering
this Warrant, with the purchase form appended hereto as Exhibit B duly
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executed by the Registered Holder or by the Registered Holder's duly authorized
attorney, at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of the Purchase Price payable in respect of the
number of Warrant Shares purchased upon such exercise.
(b) During the period commencing on the Date of Issuance and ending
90 days thereafter, the Registered Holder may, at its option, elect to pay some
or all of the Purchase Price payable upon an exercise of this Warrant by
cancelling a portion of this Warrant exercisable for such number of Warrant
Shares as is determined by dividing (I) the total Purchase Price payable in
respect of the number of Warrant Shares being purchased upon such exercise by
(II) the excess of the Fair Market Value per share of Common Stock (as defined
in this Section 1(b)) as of the Exercise Date (as defined in Section 1(c) of
this Warrant) over the Purchase Price per share. If the Registered Holder wishes
to exercise this Warrant pursuant to this method of payment with respect to the
maximum number of Warrant Shares purchasable pursuant to this method, then the
number of Warrant Shares so purchasable shall be equal to the total number of
Warrant Shares, minus the product obtained by multiplying (y) the total number
of Warrant Shares by (z) a fraction, the numerator of which shall be the
Purchase Price per share and the denominator of which shall be the Fair Market
Value per share of Common Stock as of the Exercise Date. The "Fair Market Value"
per share of Common Stock shall be determined as follows:
(i) If the Common Stock is listed on a national securities exchange,
the Nasdaq National Market or another nationally recognized trading system as of
the Exercise Date, the Fair Market Value per share of Common Stock shall be
deemed to be the average closing sale price of the Common Stock over the ten
trading days ending on the trading day immediately preceding the Exercise Date.
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized trading
system as of the Exercise Date, the Fair Market Value per share of Common Stock
shall be deemed to be the amount most recently determined by the Board of
Directors of the Company (the "Board") to represent the fair market value per
share of the Common Stock; and, upon written request of the Registered Holder,
the Board (or a representative thereof) shall promptly notify the Registered
Holder of the Fair Market Value per share of Common Stock. Notwithstanding the
foregoing, if the Board has not made such a determination within the three-month
period prior to the Exercise Date, then (A) the Board shall make a determination
of the Fair Market Value per share of the Common Stock within 15 days of a
written request by the Registered Holder that it do so, and (B) the exercise of
this Warrant pursuant to this Section 1(b) shall be delayed until such
determination is made.
(c) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been
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surrendered to the Company as provided in Section 1(a) above (the "Exercise
Date"). At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(d) below shall be deemed to have become the holder or holders of
record of the Warrant Shares represented by such certificates.
(d) As soon as practicable after the exercise of this Warrant in full
or in part, and in any event within 20 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which the Registered Holder shall be entitled upon such exercise plus,
in lieu of any fractional share to which the Registered Holder would otherwise
be entitled, cash in an amount determined pursuant to Section 3 of this Warrant;
and
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face or
faces thereof for the number of Warrant Shares equal (without giving effect to
any adjustment therein) to the number of such shares called for on the face of
this Warrant minus the sum of (a) the number of such shares purchased by the
Registered Holder upon such exercise plus (b) the number of Warrant Shares (if
any) covered by the portion of this Warrant cancelled in payment of the Purchase
Price payable upon such exercise pursuant to Section 1(b) of this Warrant.
2. Adjustments.
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(a) Adjustment for Stock Splits and Combinations. If the Company
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shall at any time or from time to time after the date of the Purchase Agreement
(the "Original Date") effect a subdivision of the outstanding Common Stock, the
Purchase Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Company shall at any time or from time to time
after the Original Date combine the outstanding shares of Common Stock, the
Purchase Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this paragraph shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event
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the Company at any time, or from time to time after the Original Date shall make
or issue, or fix a record date for the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, then and in each such event the Purchase Price then in
effect immediately before such event shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, by multiplying the Purchase Price then in
effect by a fraction:
(1) the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time
of such
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issuance or the close of business on such record date plus the number of shares
of Common Stock issuable in payment of such dividend or distribution;
provided, that, if such record date shall have been fixed and such dividend is
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not fully paid or if such distribution is not fully made on the date fixed
therefor, the Purchase Price shall be recomputed accordingly as of the close of
business on such record date and thereafter the Purchase Price shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment
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is required to be made in the Purchase Price pursuant to Sections 2(a) or 2(b)
of this Warrant, the number of Warrant Shares purchasable upon the exercise of
this Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Purchase Price in effect
immediately prior to such adjustment, by (ii) the Purchase Price in effect
immediately after such adjustment.
(d) Adjustments for Other Dividends and Distributions. In the
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event the Company at any time or from time to time after the Original Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than cash out of earnings or earned surplus, determined in
accordance with United States generally accepted accounting principles), then
and in each such event provision shall be made so that the Registered Holder
shall receive upon exercise hereof, in addition to the number of shares of
Common Stock issuable hereunder, the kind and amount of securities of the
Company and/or cash and other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised into Common Stock on
the date of such event and had the Registered Holder thereafter, during the
period from the date of such event to and including the Exercise Date, retained
any such securities receivable, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(e) Adjustment for Mergers or Reorganizations, etc. If there
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shall occur any reorganization, recapitalization, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
Sections 2(a), 2(b) or 2(d) of this Warrant), then, following any such
reorganization, recapitalization, consolidation or merger, the Registered Holder
shall receive upon exercise hereof the kind and amount of securities, cash or
other property which the Registered Holder would have been entitled to receive
if, immediately prior to such reorganization, recapitalization, consolidation or
merger, the Registered Holder had held the number of shares of Common Stock
subject to this Warrant. In any such case, appropriate adjustment (as determined
in good faith by the Board) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the
Registered Holder, to the end that the provisions set forth in this Section 2
(including provisions with respect to changes in and other adjustments of the
Purchase Price) shall thereafter be applicable, as nearly as reasonably may be,
in relation to any securities, cash or other property thereafter deliverable
upon the exercise of this Warrant.
4
(f) Certificate as to Adjustments. Upon the occurrence of each
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adjustment or readjustment of the Purchase Price pursuant to this Section 2, the
Company shall promptly furnish to the Registered Holder a certificate setting
forth a brief statement of the facts requiring such adjustment or readjustment.
3. Fractional Shares. The Company shall not be required upon the
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exercise of this Warrant to issue any fractional shares, but shall make an
adjustment therefor in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to Section 1(b) of this Warrant.
4. Requirements for Transfer.
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(a) Neither this Warrant nor any interest herein shall be sold
or otherwise transferred, in whole or in part, in any respect; provided, that,
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the entire Warrant) to any entity controlling, controlled by or under common
control of the Registered Holder if (i) the transferee agrees in writing as part
of such notice to be bound by the terms of this Warrant and the Purchase
Agreement (including, without limitation, the terms of Section 5.5 of the
Purchase Agreement), (ii) AOL agrees in writing as part of such notice to remain
primarily responsible for all of the obligations of the Registered Holder under
this Warrant and under the Purchase Agreement and (iii) either such transfer
shall have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the Company first shall have been furnished with such
representation letters and other documentation, reasonably satisfactory to the
Company, to the effect that such transfer is exempt from the registration
requirements of the Securities Act. In addition to the restrictions on transfer
set forth in this Section 4, this Warrant and the Warrant Shares are also
subject to the restrictions on transfer set forth in the Purchase Agreement,
which terms are incorporated in this Warrant.
(b) Each certificate representing Warrant Shares shall bear
legends substantially in the following form:
"The shares represented by this certificate have been issued
pursuant to and are subject to restrictions on transfer set
forth in a Common Stock and Warrant Purchase Agreement with
the Corporation and a Common Stock Purchase Warrant issued
by the Corporation, copies of which are available for
inspection at the office of the Secretary of the
Corporation."
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until such
securities are registered under such Act or the Corporation
obtains appropriate documentation to the effect that such
registration is not required."
5
The immediately foregoing legend shall be removed from the certificates
representing any Warrant Shares, at the request of the holder thereof, at such
time as they become eligible for resale pursuant to Rule 144(k) under the
Securities Act and upon the delivery to the Company of such representation
letters and other documentation, reasonably satisfactory to the Company, that
such legend may be removed.
5. No Impairment. The Company will not, by amendment of its charter or
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through reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holder of this Warrant against impairment.
6. Notices of Record Date, etc. In the event:
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(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive 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
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any consolidation or merger
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the surviving entity and its Common Stock is not
converted into or exchanged for any other securities or property), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, 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 Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten days prior
to the record date or effective date for the event specified in such notice.
7. Reservation of Stock. The Company will at all times reserve and keep
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available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this Warrant.
6
8. Exchange of Warrants. Upon the surrender by the Registered Holder,
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properly endorsed, to the Company at the principal office of the Company, the
Company will, subject to the provisions of Section 4 hereof, issue and deliver
to or upon the order of such Registered Holder, at the Company's expense, a new
Warrant or Warrants of like tenor, in the name of the Registered Holder or as
the Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock (or other securities, cash
and/or property) then issuable upon exercise of this Warrant.
9. Replacement of Warrants. Upon receipt of evidence reasonably
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satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
10. Transfers, etc.
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(a) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the restrictions on transfer and other provisions of
Section 4 hereof, this Warrant and all rights hereunder are transferable, in
whole or in part, upon surrender of this Warrant with a properly executed
assignment (in the form of Exhibit C appended to this Warrant) at the principal
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office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder as the absolute owner
hereof for all purposes; provided, that, if and when this Warrant is properly
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assigned in blank, the Company may (but shall not be obligated to) treat the
bearer hereof as the absolute owner hereof for all purposes, notwithstanding any
notice to the contrary.
11. Mailing of Notices, etc. All notices and other communications from the
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Company to the Registered Holder shall be mailed by first-class certified or
registered mail, postage prepaid, to the address last furnished to the Company
in writing by the Registered Holder. All notices and other communications from
the Registered Holder or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
its principal office set forth below. If the Company should at any time change
the location of its principal office to a place other than as set forth below,
it shall give prompt written notice to the Registered Holder and thereafter all
references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
12. No Rights as Stockholder. Until the exercise of this Warrant, the
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Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the event (i) the
Company effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are
7
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), and (ii) the Registered Holder exercises
this Warrant between the record date and the distribution date for such stock
dividend, the Registered Holder shall be entitled to receive, on the
distribution date, the stock dividend with respect to the shares of Common Stock
acquired upon such exercise, notwithstanding the fact that such shares were not
outstanding as of the close of business on the record date for such stock
dividend.
13. Change or Waiver. Any term of this Warrant may be changed or waived
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only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
14. Section Headings. The section headings in this Warrant are for the
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convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
15. Governing Law. This Warrant will be governed by and construed in
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accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
EXECUTED as of the Date of Issuance.
SWITCHBOARD INCORPORATED
By:________________________
Name:
Title:
Address of Principal Office:
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000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
[Corporate Seal]
ATTEST:
_________________________
Name:
Title:
8
Exhibit A
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INVESTMENT LETTER
Switchboard Incorporated
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
In order to induce Switchboard Incorporated, a Delaware corporation (the
"Company"), to issue and sell to America Online, Inc., a Delaware corporation
(the "Investor"), the Common Stock Purchase Warrant No. AOL-1 (the "Warrant")
and any and all of the shares of Common Stock, $.01 par value per share, of the
Company (the "Common Stock") issuable upon any exercise or partial exercise of
the Warrant (the "Shares"), the Investor hereby represents, warrants and
covenants as follows:
(a) The Investor is accepting the Warrant and the Shares for its own
account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Warrant and/or Shares in violation for the
Securities Act of 1933, as amended (the "Securities Act"), or any rule or
regulation under the Securities Act.
(b) The Investor has had such opportunity as it has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit it to evaluate the merits and risks of its investment in the Company.
(c) The Investor has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Warrant and/or the Shares and to make an informed investment decision with
respect to such purchase.
(d) The Investor can afford a complete loss of the value of the Warrant
and/or the Shares and is able to bear the economic risk of holding the Warrant
and/or the Shares for an indefinite period.
(e) The Investor understands that (i) neither the Warrant nor the Shares
have been registered under the Securities Act and both the Warrant and the
Shares are "restricted securities" within the meaning of Rule 144 under the
Securities Act, (ii) neither the Warrant nor the Shares can be sold, transferred
or otherwise disposed of unless so sold, transferred or otherwise disposed of in
compliance with the restrictions on transfer set forth in Section 4 of the
Warrant; (iii) in any event, the exemption from registration under Rule 144 or
otherwise may not be available for the Warrant or the Shares, may not be
available for at least one year and even then will not be available unless a
public market then exists for the Common Stock, adequate information concerning
the Company is then available to the public, and other terms and conditions of
Rule 144 are complied with; and (iv) other than as specifically provided for in
that certain Registration Rights Agreement dated as of December 11, 2000 between
the Company and the
A-1
Investor, the Company has no current obligation or current intention to register
the Warrant or the Shares under the Securities Act.
(f) Legends substantially in the form of those set forth in Section 4 of
the Warrant will be placed on any certificate representing the Shares.
Very truly yours,
INVESTOR:
AMERICAN ONLINE, INC.
By:____________________________
Name:
Title:
Dated:_________________________
A-2
Exhibit B
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PURCHASE FORM
To:_________________ Dated:____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby irrevocably elects to purchase (check applicable box):
[_] _____ shares of the Common Stock covered by such Warrant; or
[_] the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in Section 1(b).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant, which is $________.
Such payment takes the form of (check applicable box or boxes):
[_] $______ in lawful money of the United States; and/or
[_] the cancellation of such portion of the attached Warrant as is
exercisable for a total of _____ Warrant Shares (using a Fair Market
Value of $_____ per share for purposes of this calculation); and/or
[_] the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in Section 1(b), to exercise
this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in
Section 1(b).
Name of Registered Holder:__________________
By:______________________________________
Name:
Title:
Address:__________________________________
__________________________________
__________________________________
B-1
Exhibit C
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ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
Name of Assignee Address No. of Shares
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Dated:_____________________ Name of Registered Holder:___________
By:__________________________________
Name:
Title:
Signature Guaranteed:
By: _______________________
The signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
C-1
