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EXHIBIT 10.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE (TOGETHER, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES ACT, AND MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION UNDER SUCH ACTS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
Date: January 29, 2001
INTERNET CAPITAL GROUP, INC.
Common Stock Purchase Warrant
Internet Capital Group, Inc., a Delaware corporation (the "Company"),
hereby certifies that, for value received, AT&T Corp. (the "Holder"), or its
permitted assigns, is entitled, subject to the terms set forth below, to
purchase from the Company, at any time and from time to time during the period
beginning on the date hereof and ending on April 24, 2005, 91,430 fully paid and
non-assessable shares of the common stock, par value $.001 per share, of the
Company at $43.75 per share (the "Purchase Price"), subject to adjustment in
accordance with the provisions of Paragraph 3. "Common Stock" shall mean, unless
the context otherwise requires, the stock or other securities or property at the
time deliverable upon the exercise of this Warrant. Notwithstanding the
foregoing, the Purchase Price and the number and character of shares issuable
under this Warrant are subject to adjustment as set forth in Paragraph 3. This
Warrant is herein called the "Warrant."
1. EXERCISE OF WARRANT. The purchase rights evidenced by this Warrant shall
be exercised by the holder hereof by surrendering this Warrant, with the form of
subscription at the end hereof duly executed by such holder, to the Company at
its office at 600 Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000, or
such other address as the Company may specify by written notice to the
registered holder hereof, accompanied by payment, in cash, by certified or
official bank check or by wire transfer of an amount equal to the Purchase Price
multiplied by the number of shares being purchased pursuant to such exercise of
the Warrant.
1.1. Partial Exercise. This Warrant may be exercised for less than the
full number of shares of Common Stock, in which case the number of shares
receivable upon the exercise of this Warrant as a whole, and the sum payable
upon the exercise of this Warrant as a whole, shall be proportionately reduced.
Upon any such partial exercise, the Company at its expense will forthwith issue
to the holder hereof a new Warrant or Warrants of like tenor calling for the
number of shares of Common Stock as to which rights have not been exercised,
such Warrant or Warrants to be issued in the name of the holder hereof or its
nominee (upon payment by such holder of any applicable transfer taxes).
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1.2. Net Issue Exercise.
(1) In lieu of exercising this Warrant, holder may elect to
receive shares equal to the value of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with notice of such election in which event the Company shall issue to
holder that number of shares of the Company's Common Stock computed using the
following formula:
Y(A-B)
X= ------
A
Where
X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock purchasable under this
Warrant
A = the fair market value of one share of the Company's Common
Stock.
B = the Purchase Price (as adjusted to the date of such
calculations).
(2) For purposes of this Section, the fair market value of one
share of the Company's Common Stock shall be based on the average of the closing
bid and asked prices on the Nasdaq National Market or other over-the-counter
listing (if the Common Stock is no longer listed on the Nasdaq National Market),
or if the Common Stock becomes listed on a stock exchange, the closing sale
price reported on such exchange, whichever is applicable, for the ten trading
days prior to the date of determination of fair market value. If the Common
Stock is not traded on the Nasdaq National Market, over-the-counter or on an
exchange, the fair market value of the Company's Common Stock shall be the price
per share which the Company could obtain from a willing buyer for shares sold by
the Company from authorized but unissued shares, as such price shall be agreed
by the Company and the holder.
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after
the exercise of this Warrant and payment of the Purchase Price, and in any event
within ten (10) days thereafter, the Company, at its expense, will cause to be
issued in the name of and delivered to the holder a certificate or certificates
for the number of fully paid and non-assessable shares or other securities or
property to which the holder shall be entitled upon such exercise, plus, in lieu
of any fractional share to which the holder would otherwise be entitled, cash in
an amount determined in accordance with Paragraph 3.5. The Company agrees that
the shares so purchased 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 and payment made for such shares as
aforesaid; provided, the foregoing shall not be deemed to affect the calculation
of the holding period of such shares under Rule 144 (as
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promulgated under the Securities Act of 1933) in the event of a net issue
exercise pursuant to Section 1.2 hereof.
3. ADJUSTMENTS. In order to prevent dilution of the rights granted
hereunder, the Purchase Price shall be subject to adjustment from time to time
in accordance with this Paragraph 3. Upon each adjustment of the Purchase Price
pursuant to this Paragraph 3, the registered holder of this Warrant shall
thereafter be entitled to acquire upon exercise, at the Purchase Price resulting
from such adjustment, the number of shares of the Company's Common Stock
obtainable by multiplying the Purchase Price in effect immediately prior to such
adjustment by the number of shares of the Company's Common Stock acquirable
immediately prior to such adjustment and dividing the product thereof by the
Purchase Price resulting from such adjustment.
3.1. Subdivisions, Combinations and Stock Dividends. In case the
Company shall at any time subdivide by split-up or otherwise, its outstanding
shares of Common Stock into a greater number of shares, or issue additional
shares of its Common Stock as a dividend with respect to any shares of its
Common Stock, the Purchase Price in effect immediately prior to such subdivision
or stock dividend shall be proportionately reduced. Conversely, in case the
outstanding shares of Common Stock of the Company shall be combined into a
smaller number of shares, the Purchase Price in effect immediately prior to such
combination shall be proportionately increased.
3.2. Reorganization, Reclassification, Consolidation, Merger or Sale of
Assets. If any capital reorganization or reclassification of the capital stock
of the Company, or consolidation or merger of the Company 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, cash or other property with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holder shall have the right to acquire and receive
upon exercise of this Warrant such shares of stock, securities, cash or other
property issuable or payable (as part of the reorganization, reclassification,
consolidation, merger or sale) with respect to or in exchange for such number of
outstanding shares of the Company's Common Stock as would have been received
upon exercise of this Warrant at the Purchase Price then in effect. The Company
will not effect any such consolidation, merger or sale unless, prior to the
consummation thereof, the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument mailed or delivered to the holder of
this Warrant at the last address of such holder appearing on the books of the
Company, 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 purchase. 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 Company, the Company 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 of this Warrant shall have been given a reasonable opportunity
to then elect to receive upon the exercise of this Warrant either the stock,
securities or assets then issuable with respect to the Common Stock of the
Company or the stock, securities or assets, or the equivalent, issued to
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previous holders of the Common Stock in accordance with such offer. For purposes
hereof the term "Affiliate" with respect to any given person shall mean any
person controlling, controlled by or under common control with the given person.
3.3. Notices of Record Date, Etc. In the event that:
(1) the Company shall declare any dividend upon its Common Stock
payable in stock to the holders of its Common Stock, or
(2) there shall be any capital reorganization or reclassification
of the capital stock of the Company, including any subdivision or combination of
its outstanding shares of Common Stock, or consolidation or merger of the
Company with, or sale of all or substantially all of its assets to, another
corporation,
then, in connection with such event, the Company shall give to the holder of
this Warrant:
(i) at least ten (10) days prior written notice of the date on which
the books of the Company shall close or a record shall be taken for such
dividend or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger or sale; and
(ii) in the case of any such reorganization, reclassification,
consolidation, merger or sale at least ten (10) 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, the date on which the holders of Common Stock shall be entitled
thereto and the terms of such dividend, and such notice in accordance with
this 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 or sale, as the case may be, and the terms of such
exchange. Each such written notice shall be given by first class mail,
postage prepaid, addressed to the holder of this Warrant at the address of
such holder as shown on the books of the Company.
3.4. Adjustment by Board of Directors. If any event occurs as to which,
in the opinion of the Board of Directors of the Company, the provisions of this
Section 3 are not strictly applicable or if strictly applicable would not fairly
protect the rights of the holder of this Warrant in accordance with the
essential intent and principles of such provisions, then the Board of Directors
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect such rights as
aforesaid, but in no event shall any adjustment have the effect of increasing
the Purchase Price as otherwise determined pursuant to any of the provisions of
this Section 3 except in the case of a combination of shares of a type
contemplated in Paragraph 3.1 and then in no event to an amount larger than the
Purchase Price as adjusted pursuant to Paragraph 3.1.
3.5. Fractional Shares. The Company shall not issue fractions of shares
of Common Stock upon exercise, partial exercise pursuant to Section 1.1, or net
issue exercise pursuant to Section 1.2 of this Warrant. If any fraction of a
share of Common Stock would,
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except for the provisions of this Paragraph 3.5, be issuable upon such exercise
of this Warrant, the Company shall in lieu thereof pay to the person entitled
thereto an amount in cash equal to the fair market value of such fraction,
calculated to the nearest one-hundredth (1/100) of a share, computed in
accordance with Paragraph 1.2(2).
3.6. Officers' Statement as to Adjustments. Whenever the Purchase Price
shall be adjusted as provided in Section 3, the Company shall forthwith file at
each office designated for the exercise of this Warrant a statement, signed by
the Chief Executive Officer, Chief Financial Officer or any Managing Director of
the Company, showing in reasonable detail the facts requiring such adjustment
and the Purchase Price that will be effective after such adjustment. The Company
shall also cause a notice setting forth any such adjustments to be sent by mail,
first class, postage prepaid, to the record holder of this Warrant at its
address appearing on the stock register. If such notice relates to an adjustment
resulting from an event referred to in Paragraph 3.3, such notice shall be
included as part of the notice required to be mailed and published under the
provisions of Paragraph 3.3.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
charter or through reorganization, consolidation, merger, sale of assets or any
other 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 hereof
against dilution or other impairment. Without limiting the generality of the
foregoing, the Company will not increase the par value of any shares of stock
receivable upon the exercise of this Warrant above the amount payable therefor
upon such exercise, and at all times will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable stock upon the exercise of this Warrant.
5. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANTS. The Company shall
at all times reserve and keep available out of its authorized but unissued
stock, solely for the issuance and delivery upon the exercise of this Warrant,
such number of its duly authorized shares of Common Stock as from time to time
shall be issuable upon the exercise of this Warrant at the time outstanding. All
of the shares of Common Stock issuable upon exercise of this Warrant, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully-paid and non-assessable.
6. 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 loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to it, or (in the case of mutilation) upon surrender and
cancellation thereof, the Company will issue, in lieu thereof, a new Warrant of
like tenor.
7. REMEDIES. The Company stipulates that the remedies at law of the holder
of this Warrant in the event of any default by the Company in the performance of
or compliance with any of the terms of this Warrant are not and will not be
adequate, and that the same may be specifically enforced.
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8. LETTER AGREEMENT. The Warrant and the shares of Common Stock of the
Company issued or issuable upon the exercise of the Warrant shall constitute
"Shares" under that certain Letter Agreement dated December 5, 1999 between the
Holder and the Company (the "Letter Agreement") for purposes of the registration
rights granted to Holder in the Letter Agreement and Exhibit B to such Letter
Agreement.
9. NEGOTIABILITY. This Warrant is issued upon the following terms, to all
of which each taker or owner hereof consents and agrees:
(a) Except as provided in the Letter Agreement and subject to the
legends appearing on the first page of this Warrant, title to this Warrant may
be transferred by endorsement (by the holder hereof executing the form of
assignment at the end of this Warrant, including guaranty of signature) and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery. Absent an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), covering the
disposition of this Warrant or the shares of Common Stock issued or issuable
upon exercise of this Warrant, the holder will not sell or transfer any or all
of such Warrant or shares, as the case may be, without first providing the
Company with an opinion of counsel to the effect that such sale or transfer will
be exempt from the registration and prospectus delivery requirements of the Act.
Each certificate representing shares of Common Stock issued pursuant to this
Warrant, unless at the same time of exercise such Warrant shares are registered
under the Act, shall bear the legend in substantially the following form on
their face:
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE
(TOGETHER, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT, AND
MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER SUCH ACTS OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a certificate issued upon completion of
a distribution under a registration statement covering the securities
represented) shall also bear such legend unless, in the opinion of counsel
satisfactory to the Company, the securities represented thereby may be
transferred as contemplated by such holder without violation of the registration
requirements of the Act.
(b) Any person in possession of this Warrant properly endorsed is
authorized to represent itself as absolute owner of this Warrant, and is granted
power to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser for value; each prior taker or owner waives and renounces
all of its equities or rights in this Warrant in favor of every such bona fide
purchaser, and every such bona fide purchaser shall acquire title hereto and to
all rights represented hereby.
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(c) Until this Warrant is transferred on the books of the Company, the
Company may treat the registered holder of this Warrant as the absolute owner of
this Warrant for all purposes without being affected by any notice to the
contrary.
(d) Before the exercise of this Warrant, the holder shall not be
entitled to any rights of a shareholder of the Company with respect to shares
for which this Warrant shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
(e) The Company shall not be required to pay any Federal or state
transfer tax or charge that may be payable in respect of any transfer involved
in the transfer or delivery of this Warrant or the issuance or conversion or
delivery of certificates for Common Stock in a name other than that of the
registered holder of this Warrant or to issue or deliver any certificates for
Common Stock upon the exercise of this Warrant until any and all such taxes and
charges shall have been paid by the holder of this Warrant or until it has been
established to the Company's satisfaction that no such tax or charge is due.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. This Warrant is issued
and delivered by the Company on the basis of the following:
(a) Authorization and Delivery. This Warrant has been duly authorized
and executed by the Company and when delivered will be the valid and binding
obligation of the Company enforceable in accordance with its terms.
(b) Warrant Shares. The shares of Common Stock to be issued pursuant to
this Warrant have been duly authorized and reserved for issuance by the Company
and, when issued and paid for in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable.
(c) Rights and Privileges. The rights, preferences, privileges and
restrictions granted to or imposed upon this Warrant, such shares of Common
Stock issued or issuable upon exercise of this Warrant and the holders thereof
are as set forth herein, in the Letter Agreement and in the Company's
Certificate of Incorporation.
(d) No Inconsistency. The execution and delivery of this Warrant are
not, and the issuance of the shares of Common Stock upon exercise of this
Warrant in accordance with its terms will not be, inconsistent with the
Company's Certificate of Incorporation or by-laws, do not and will not
contravene any law, governmental rule or regulation, judgment or order
applicable to the Company, and do not and will not contravene any provision of,
or constitute a default under, any indenture, mortgage, contract or other
instrument of which the Company is a party or by which it is bound or require
the consent or approval of, the giving of notice to, the registration with the
taking of any action in respect of or by, any Federal, state or local government
authority or agency or other person.
11. REPRESENTATIONS AND WARRANTIES OF HOLDER.
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(a) The holder hereby represents and warrants to the Company that it
has substantial knowledge, skill and experience in making investment decisions
of the type represented by this Warrant and the shares issuable upon exercise of
this Warrant, that it is capable of evaluating the risk of its investment in
this Warrant and the shares issuable upon exercise of this Warrant and is able
to bear the economic risk of such investment, including the risk of losing the
entire investment, that it is acquiring this Warrant and the shares issuable
upon exercise of this Warrant for its own account, and that this Warrant and the
shares issuable upon exercise of this Warrant are being acquired by it for
investment and not with a present view to any distribution thereof in violation
of applicable securities law. If the holder should in the future decide to
dispose of any of this Warrant and the shares issuable upon exercise of this
Warrant, it is understood that it may so do only in compliance with the Act and
applicable state securities laws. The holder represents and warrants that it is
an "Accredited Investor" as defined in Rule 501(a) under the Act.
(b) The holder understands that (i) this Warrant and the shares
issuable upon exercise of this Warrant have not been registered under the Act by
reason of their issuance in a transaction exempt from the registration
requirements of the Act, (ii) this Warrant and the shares issuable upon exercise
of this Warrant must be held indefinitely unless a subsequent disposition
thereof is registered under the Act and applicable state securities laws or is
exempt from such registration (and, upon request, evidence satisfactory to the
Company is provided by such holder of the availability of such exemptions,
including, upon request, the delivery to the Company of opinions of counsel to
such holder, which opinions of counsel are satisfactory to the Company), and
(iii) this Warrant and the shares issuable upon exercise of this Warrant may
bear a legend to such effect.
12. SUBDIVISION OF RIGHTS. This Warrant (as well as any new warrants issued
pursuant to the provisions of this Paragraph) is exchangeable, upon the
surrender by the holder at the principal office of the Company for any number of
new warrants of like tenor and date representing in the aggregate the right to
subscribe for and purchase the number of shares of Common Stock of the Company
that may be subscribed for and purchased hereunder.
13. MAILING OF NOTICES. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first-class certified
mail, postage prepaid, to the address furnished to the Company in writing by the
last holder of this Warrant who shall have furnished an address to the Company
in writing.
14. HEADINGS. The headings in this Warrant are for purposes of reference
only, and shall not limit or otherwise affect the meaning hereof.
15. CHANGE, WAIVER. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
16. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the Company, by the undersigned thereunto duly
authorized, has duly executed this Warrant as of the date first written above.
INTERNET CAPITAL GROUP, INC.
By: /s/ Xxxxx X. Nassau
--------------------------------------
Name: Xxxxx X. Nassau
Title: Managing Director, General
Counsel and Secretary
ACCEPTED AS OF THE DATE HEREOF:
AT&T CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Director--Merger & Acquisitions
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[To be signed only upon exercise of Warrant]
To ___________________:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, ______ shares of Common Stock of _____________ and herewith
makes payment of $_____ therefor, and requests that the certificates for such
shares be issued in the name of, and be delivered to ____________, whose address
is _____________.
Dated: _____________
By____________________________________________
(Signature must conform in
all respects to name of
Holder as specified on the
face of the Warrant)
Address:
____________________________________________
____________________________________________
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[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________ the right represented by the within Warrant to purchase the
______ shares of the Common Stock of ____________________ to which the within
Warrant relates, and appoints _____________ attorney to transfer said right on
the books of _____________________ with full power of substitution in the
premises.
Dated: _____________
By____________________________________________
(Signature must conform in
all respects to name of
Holder as specified on the
face of the Warrant)
Address:
____________________________________________
____________________________________________
In the presence of
_____________________________
Signature Guarantee
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