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EXHIBIT 10.15
WARRANT AGREEMENT
THIS WARRANT AND ANY SHARES ACQUIRED FROM THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES
OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR ANY OF SUCH SHARES MAY BE SOLD,
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SAID ACT AND UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS OR
EXEMPTIONS FROM SUCH REGISTRATION. THIS WARRANT IS NON-TRANSFERABLE AND MAY NOT
BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT AS PERMITTED IN
PARAGRAPH 8(A) HEREOF, UNLESS PREVIOUSLY CONSENTED TO BY XXXXXXX.XXX, INC.
No. ____ Right to Purchase
______ Shares of
Common Stock
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, in consideration of $10.00 paid in cash this date
by Xxxxx & Xxxxxxxxxxxx, Inc. ("Purchaser") to xxxxxxx.xxx, inc., a Georgia
corporation (the "Company"), Purchaser is entitled to purchase from the
Company, at any time during the period specified in Paragraph 2 hereof, up to
_________ (_______) fully paid and non-assessable shares of the Company's
common stock, no par value per share (the "Common Stock"), at an exercise price
per share of $_______ (the "Exercise Price"). The term "Warrant Shares", as
used herein, refers to the shares of Common Stock purchasable hereunder. The
Warrant Shares and the Exercise Price are subject to adjustment as provided in
Paragraphs 4 and 5 hereof.
This Warrant is subject to the following terms, provisions and
conditions:
1. Manner and Exercise; Issuance of Certificates; Payment for
Shares.
(a) Subject to the provisions hereof, this Warrant may be
exercised by the holder hereof, in whole or in part (any partial exercise to be
in increments of not less than one thousand (1,000) shares or any lesser
remaining number of shares subject to the Warrant), within the time period
specified in Paragraph 2 hereof by the surrender of this Warrant, together with
a completed Exercise Agreement in the form attached hereto, to the Company
during normal business hours on any business day at the Company's principal
office in Atlanta, Georgia (or such other office or agency of the Company as it
may designate by notice to the holder hereof), and payment to the Company in
cash, by certified or official bank check or immediately available federal
funds of the Exercise Price for the Warrant Shares specified in said Exercise
Agreement. Notwithstanding the preceding sentence, the holder, at its sole
option, may elect (upon delivery to the Company of satisfactory documentation
of such election, including an opinion of counsel if reasonably required), in
lieu of the payment of the Exercise Price in cash, check or federal funds, to
(i) receive from the Company a lesser number of Warrant Shares having a fair
market value on the date of exercise equal to the difference between (A) the
fair market value on the date of exercise of the full number of Warrant Shares
as to which exercise is being made and (B) the aggregate Exercise Price of the
full number of Warrant Shares as to which exercise is being made (such lesser
number of Warrant Shares so issuable to the holder shall be considered as and
included within the meaning of the
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term "Warrant Shares" for all remaining purposes hereof), or (ii) pay the
Exercise Price in shares of Common Stock of the Company having a fair market
value on the date of exercise equal to the aggregate Exercise Price of the
Warrant Shares as to which exercise is being made.
(b) Warrant Shares purchased by the holder hereof shall be
deemed to be issued to the holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been
surrendered, the completed Exercise Agreement (and other documentation
reasonably request by the Company) delivered, and payment made for such shares
as aforesaid. Certificates for the Warrant Shares so purchased, representing
the aggregate number of shares specified in said Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time after this Warrant
shall have been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be registered
in the name of said holder unless otherwise specified by the holder in the
Exercise Agreement. In case of an exercise in part only, the Company will
deliver to the holder a new Warrant of like tenor in the name of the holder
evidencing the right to purchase the number of Warrant Shares as to which this
Warrant has not been exercised.
2. Period of Exercise. This Warrant is exercisable at any time on
or after one (1) year from the date of issuance, and before 5:00 p.m. Atlanta,
Georgia, local time on the fifth (5th) anniversary of the date of issuance.
3. Certain Agreements of the Company. The Company hereby covenants
and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon
issuance, be validly issued, fully paid and non-assessable and free from all
taxes, liens and charges created or through the Company with respect to the
issue thereof.
(b) Reservation of Shares. During the period within which
this Warrant may be exercised, the Company will at all times have reserved for
issuance out of its authorized but unissued Common Stock, solely for issuance
and delivery upon exercise of the Warrant, the full number of shares of Common
Stock issuable upon exercise of the Warrant.
4. Protection Against Dilution. The number of shares of Common
Stock purchasable pursuant to the exercise of the rights under this Warrant and
the Exercise Price shall be adjusted as hereinafter set forth
(a) Stock Dividends, Subdivisions, Reclassifications, Etc.
In case at any time or from time to time after the date hereof the Company
shall:
(i) take a record of the holders of its issued
and outstanding Common Stock for the
purpose of entitling them to receive a
dividend payable in, or other distribution
of, Common Stock, or
(ii) subdivide its outstanding shares of Common
Stock into a larger number of shares of
Common Stock, or
(iii) combine its outstanding shares of Common
Stock into a smaller number of shares of
Common Stock;
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then, and in each such case, the Exercise Price shall be adjusted to that price
determined by multiplying the Exercise Price in effect immediately prior to
such event by a fraction (i) the numerator of which shall be the total number
of outstanding shares of Common Stock immediately prior to such event, and (ii)
the denominator of which shall be the total number of outstanding shares of
Common Stock immediately after such event.
(b) Adjustment of Number of Shares Purchasable. Upon each
adjustment in the Exercise Price pursuant to Paragraph 4(a) above, such number
of shares of Common Stock purchasable hereunder shall be adjusted by
multiplying the number of shares of Common Stock by a fraction, (i) the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and (ii) the denominator of which shall be the Exercise Price in
effect upon such adjustment.
(c) Other Reclassifications. In case the Company
reclassifies its capital structure in a manner not covered by Paragraph 4(a)
and (b) hereof, an appropriate adjustment shall be made by the Company in its
reasonable discretion to the Exercise Price and number of Warrant Shares.
5. Adjustment for Reorganization, Consolidation, Merger, Etc.
(a) Prior to the expiration date of this Warrant, the
Company shall not consolidate with or merge into another corporation, person,
general partnership, limited partnership, limited liability company, trust or
other entity (collectively, a "Person"), or convey all or substantially all of
its assets to any other Person or Persons, whether affiliated or unaffiliated
(any such Person being included within the meaning of the term "Successor
Person"), or agree to so consolidate, merge or convey assets unless and until,
prior to consummation of such consolidation, merger or conveyance, the
Successor Person thereto shall assume, by written instrument executed and
mailed to the holder of this Warrant, at such time, the obligation to issue and
deliver to such holder such shares of stock, securities or property as, in
accordance with the provisions of paragraph 5(b) below, such holder shall be
entitled to purchase or receive upon its exercise of this Warrant and payment
of the Exercise Price.
(b) In case any capital reorganization or reclassification
of the Common Stock of the Company (or any other Person the stock or other
securities of which are at the time receivable on the exercise of this Warrant)
after the date of execution of this Warrant or in case, after such date, the
Company (or any such other Person) shall consolidate with or merge into another
Person, then and in each such case the holder of this Warrant, upon its
exercise of this Warrant and payment of the Exercise Price, at any time after
the consummation of such reorganization, consolidation, merger or conveyance,
shall be entitled to receive, in lieu of the Common Stock of the Company (or
the stock or other securities of such other Person) the proportionate share of
all stock, securities or other property issued, paid or delivered for or on all
of the Common Stock of the Company (or the stock or other securities of such
other Person) as is allocable to the shares of Common Stock then called for by
this Warrant, as if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in Paragraph 4 and 5
hereof.
6. Issue Tax. The issuance of certificates for Warrant Shares upon
the exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax in respect thereof.
7. No Rights or Liabilities as a Shareholder. This Warrant shall
not entitle the holder hereof to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the holder hereof to purchase Warrant Shares, and no mere
enumeration
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herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
8. Transfer, Exchange and Replacement of Warrant; Transfer of
Warrant Shares.
(a) Warrant Transfer Provisions. PRIOR TO ONE (1) YEAR
FROM DATE OF ISSUANCE, THIS WARRANT MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
HYPOTHECATED OR OTHERWISE DISPOSED OF, UNLESS PREVIOUSLY REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR EXEMPT FROM REGISTRATION, AND CONSENTED
TO IN WRITING BY THE COMPANY AFTER CONSULTATION WITH COUNSEL, AND NO OTHER
SALE, TRANSFER, ASSIGNMENT, HYPOTHECATION OR OTHER DISPOSITION OF THIS WARRANT
PRIOR TO SUCH DATE, SHALL BE VALID OR EFFECTIVE. NOTWITHSTANDING THE FOREGOING,
PURCHASER MAY TRANSFER OR ASSIGN THIS WARRANT TO AFFILIATES OF PURCHASER
FOLLOWING PURCHASER'S DELIVERY TO THE COMPANY OF A WRITTEN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
SUCH TRANSFER OR ASSIGNMENT WILL NOT VIOLATE THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OF 1933, AS AMENDED. For purposes hereof, "Affiliates" shall
mean any officers, employees or partners, as applicable, of the holder or any
entity or person owning 100% of the capital stock or other ownership interest
of the holder or of which the holder owns 100% of the capital stock or other
ownership interest. Any transfer of this Warrant, if previously consented to by
the Company, is registrable at the office or agency of the Company referred to
in Paragraph 8(d) below by the holder hereof in person or by his duly
authorized attorney, upon surrender of this Warrant properly endorsed.
(b) Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its expense, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
(c) Cancellation; Payment of Expenses. Upon the surrender
of this Warrant in connection with any permitted transfer or any replacement as
provided in this Section 8, this Warrant shall be promptly canceled by the
Company. The Company shall pay all taxes (other than securities transfer taxes)
and all other expenses and charges payable in connection with the preparation,
execution and delivery of a Warrant pursuant to this Paragraph 8(c).
(d) Register. The Company shall maintain at its principal
office in Atlanta, Georgia (or such other office or agency of the Company as it
may designate by notice to the holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the Person in whose name
this Warrant has been issued, as well as the name and address of each permitted
transferee, if any, and each prior owner of this Warrant, if any.
(e) Exercise, Exchange or Transfer Without Registration.
Anything in this Warrant to the contrary notwithstanding, (i) if, at the time
of the surrender of this Warrant in connection with any exercise of this
Warrant, the Warrant Shares issuable upon such exercise shall not be registered
under the Securities Act of 1933, as amended, and under applicable state
securities or blue sky laws, such Warrant Shares shall contain a legend in form
and content satisfactory to the Company, and the Company may require, as a
condition of allowing such exercise, that
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(A) the holder of this Warrant furnish to the Company a written opinion of
counsel, which opinion and counsel shall be reasonably acceptable to the
Company, to the effect that such exercise may be made without registration
under said Act and under applicable state securities or blue sky laws and (B)
the holder execute and deliver to the Company an investment letter in form and
substance reasonably acceptable to the Company and (ii) prior to one (1) year
from the date of the issuance of Warrant Shares, if any transfer or assignment
of such Warrant Shares shall not be registered under said Act and under
applicable state securities or blue sky laws, the Company may require, as a
condition to such transfer or assignment, that (A) the transferee or assignee
furnish to the Company a written opinion of counsel, which opinion and counsel
shall be reasonably acceptable to the Company, to the effect that such transfer
or assignment may be made without registration under said Act and under
applicable state securities or blue sky laws and (B) the transferee or assignee
execute and deliver to the Company an investment letter in form and substance
reasonably acceptable to the Company.
(f) Representation of Investment Intent. The holder of
this Warrant, by taking and holding the same, represents to the Company that
such holder is acquiring this Warrant for investment and not with a view to the
distribution thereof.
9. Notices. All notices, requests and other communications required
or permitted to be given or delivered hereunder to the holder of this Warrant
shall be in writing, and shall be personally delivered, or shall be sent by
certified or registered mail, postage prepaid and addressed, to such holder at
the address shown for such holder on the books of the Company, or at such other
address as shall have been furnished to the Company by notice from such holder.
All notices, requests and other communications required or permitted to be
given or delivered hereunder to the Company shall be in writing and shall be
personally delivered, or shall be sent by certified or registered mail, postage
prepaid and addressed, to the office of the Company at 0000 Xxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, or at such other address as shall have been
furnished to the holder of this Warrant by notice from the Company. Any such
notice, request or other communication may be sent by facsimile but shall in
such case be subsequently confirmed by a writing personally delivered or sent
by certified or registered mail as provided above. All notices, requests and
other communications shall be deemed to have been given either at the time of
the delivery thereof to (or the receipt by, in the case of a facsimile) the
person entitled to receive such notice at the address of such person for
purposes of this Paragraph 9, or, if mailed, at the completion of the fifth
full day following the date of such mailing thereof to such address, as the
case may be.
10. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
11. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may
not be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party (or any predecessor in interest
thereof) against which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of the
several Paragraphs of this Warrant are inserted for purposes of reference only
and shall not affect the meaning or construction of any of the provisions
hereof.
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(c) Successors and Assigns. This Warrant shall be binding
upon any Person succeeding to the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and issued by its duly authorized undersigned officer as of ___________, 1999.
XXXXXXX.XXX, INC.
By:
--------------------------------
X. Xxxx Xxxxxx
Chief Executive Officer
Attest:
By:
---------------------------
Name:
Title:
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FORM OF EXERCISE AGREEMENT
Dated:________________________
To: xxxxxxx.xxx, inc.
The undersigned, pursuant to the provisions set forth in the within
Warrant, hereby exercises said Warrant with regard to _________ of the shares
of Common Stock covered by such Warrant, and makes payment herewith in full
therefor at the price per share provided by such Warrant (i) in cash or by
certified or official bank check or by immediately available federal funds in
the amount of $________________ as provided in the first sentence of Paragraph
1(a) of the Warrant, (ii) by acceptance of a lesser number of shares of Common
Stock as provided in the second sentence of Paragraph 1(a) of the Warrant or
(iii) by delivery of shares of Common Stock of the Company having a fair market
value on the date of exercise equal to the aggregate exercise price of
$___________ as provided in the second sentence of Paragraph 1(a) of the
Warrant. Please issue a certificate or certificates for the Common Stock in the
name of the undersigned and pay any cash for any fractional share to the
undersigned. If this is an exercise of the Warrant in part only, please deliver
to the undersigned a new Warrant of like tenor in the name of the undersigned
evidencing the right to purchase the number of shares of Common Stock as to
which the within Warrant is not being exercised.
If the name(s) in which the shares of Common Stock are to be issued
differ from the name of the holder set forth on the within Warrant, or if the
address to which the certificate(s) representing such shares is to be forwarded
is different from the address of the holder of the Warrant as shown on the
records of the Company, or if more than one stock certificate is to be issued
with regard to such shares, the name(s) and denominations in which the stock
certificate(s) should be issued and/or the address to which the stock
certificate(s) should be forwarded is set forth below.
Name:
--------------------------------------
Signature:
---------------------------------
Title of Signing Officer or Agent (if any):
-------------------------------------------
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant
or with the name of the assignee
appearing in the assignment form.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers all the rights of the undersigned under the within Warrant to:
Name of Assignee Address No. of Shares
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The undersigned hereby irrevocably constitutes and appoints
______________________ as agent and attorney-in-fact to transfer said Warrant
on the books of the within-named corporation, with full power of substitution
in the premises.
Dated:
------------------------
In the presence of:
------------------------------
Name:
--------------------------------------
Signature:
---------------------------------
Title of Signing Officer or Agent (if any):
-------------------------------------------
Address:
-----------------------------------
-----------------------------------
Note: The above signature should
correspond exactly with the name
on the face of the within Warrant.
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