EXHIBIT 10.16
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS.
THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED AND THE
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT CANNOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE WARRANT OR
STOCK UNDER SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE EXERCISE AND TRANSFER OF THIS WARRANT ARE RESTRICTED BY THE PROVISIONS OF
(S)3.
Warrant No. 2
WARRANT
to Purchase Common Stock of
E2Enet, Inc.
Expiring at the end of the Option Period (defined below)
This Is To Certify That Northwood Capital Partners LLC or registered
assigns, is entitled to purchase from E2Enet, Inc., a Delaware corporation (the
"Company"), at any time commencing on the earlier of (i) the closing of an
underwritten public offering of Common Stock of the Company pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as amended
(the "Act") or (ii) March 31, 2000 and ending on the earlier of (i) 5 P.M.
Eastern Time, on September 10, 2006, or (ii) 5 P.M. Eastern Time on the date
five years from the closing of an underwritten public offering pursuant to a
registration statement on Form S-1 under the Act, in which the Company received
aggregate gross proceeds in excess of $50,000,000 (prior to deduction of
underwriters' commissions and expenses) (the "Option Period") but not
thereafter, at an exercise price per share as set forth below, 50,000 fully paid
and non-assessable shares of Common Stock of the Company, $.01 par value
("Common Stock") subject to adjustment as hereinafter provided.
This Warrant is one of two warrants of the same form and having the same
terms (except as to the number of shares of Common Stock purchasable thereunder)
as this Warrant, entitling the holders thereof to purchase up to an aggregate of
400,000 shares of Common Stock, all issued pursuant to the Convertible Note and
Warrant Purchase Agreement, dated as of September 10, 1999, between the Company
and the initial holder of the Warrant (the "Agreement"). Pursuant to the
Agreement, the initial holder of this Warrant was also issued a Convertible
Secured Note (the "Note"). Capitalized terms used herein that are defined in
the Agreement are so used as therein defined.
(S)1. Exercise of Warrant.
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(a) Exercise by Payment. To exercise this Warrant in whole or in part,
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the holder hereof shall deliver to the Company at its principal office in
Washington, D.C., (a) a written notice, in substantially the form of the
Subscription Notice appearing at the end of this Warrant, of such xxxxxx's
election to exercise this Warrant, which notice shall specify the number of
shares of Common Stock to be purchased, (b) a certified check drawn on, or
official bank check, payable to the Company in an amount equal to the multiple
of the Exercise Price (as adjusted) and the number of shares of Common Stock
being purchased, and (c) this Warrant. The Company shall as promptly as
practicable, and in any event within 20 days thereafter, execute and deliver or
cause to be executed and delivered, in accordance with such notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in such notice. The stock certificate or certificates so
delivered shall be in the denomination of 100 shares each or such lesser or
greater denomination as may be specified in such notice and shall be issued in
the name of such holder or such other name as shall be designated in such
notice. Such certificate or certificates shall be deemed to have been issued and
such holder or any other person so designated to be named therein shall be
deemed for all purposes to have become a holder of record of such shares as of
the date such notice is received by the Company as aforesaid. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of said certificate or certificates, deliver to such holder a new
Warrant evidencing the rights of such holder to purchase the remaining shares of
Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical to this Warrant, or, at the request of such holder,
appropriate notation may be made on this Warrant and the same returned to such
holder. The Company shall pay all expenses, taxes and other charges payable in
connection with the preparation, issue and delivery of such stock certificates
and new Warrants, except that, in case such stock certificates or new Warrants
shall be registered in a name or names other than the name of the holder of this
Warrant, funds sufficient to pay all stock transfer taxes that are payable upon
the issuance of such stock certificate or
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certificates or new Warrants shall be paid by the holder hereof at the time of
delivering the notice of exercise mentioned above.
(b) Exercise on Net Issuance Basis Following the IPO. At any time
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following the closing of the initial underwritten public offering of the Common
Stock of the Company pursuant to a registration statement on Form S-1 under the
Act (an "IPO"), in lieu of payment to the Company as set forth in Section 1(a)
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above, the holder hereof may convert this Warrant, in whole and in parts of
40,000 or more shares of Common Stock covered hereby (as adjusted for stock
splits and consolidations and the issuance of stock dividends), into the number
of shares of Common Stock determined by dividing (i) the aggregate Fair Market
Value of the shares of Common Stock issuable upon exercise of this Warrant minus
the aggregate Exercise Price of such shares of Common Stock by (ii) the Fair
Market Value of one share of Common Stock. "Fair Market Value" shall mean the
average of the closing prices of the Common Stock reported for the five business
days immediately before the holder hereof delivers its Notice of Exercise to the
Company, or if there have been no sales on any such business day, the average of
the highest bid and lowest asked prices at the end of such business day.
(c) All shares of Common Stock issued upon the exercise of this Warrant
shall be validly issued, fully paid and nonassessable and, if the Common Stock
is then listed on a national securities exchange, shall be duly listed thereon.
(d) The exercise price per share of Common Stock (the "Exercise Price")
shall be as follows: (i) the price per share, not taking into effect the
underwriter's commission, of the IPO, or (ii) in the event that there has not
been an IPO, $8.71 (Eight and Seventy-Eight One-Hundredths U.S. Dollars),
subject to adjustment as set forth in Section 8 below.
(e) The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of a share of Common Stock, but,
in lieu thereof, shall pay to the holder of this Warrant cash in an amount equal
to a corresponding fraction (calculated to the nearest 1/100 of a share) of the
market value of one share of Common Stock as of the date of receipt by the
Company of notice of exercise of this Warrant, as determined in good faith by
the Board of Directors of the Company.
(S)2. Transfer, Division and Combination.
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The Company agrees to maintain at its principal office in Washington, D.C.,
books for the registration and transfer of the Warrants, and, subject to the
provisions of (S)3 hereof, this Warrant and all rights hereunder are
transferable, in whole or in two parts, on such books at such office, upon
surrender of this Warrant at such office, together with a written assignment of
this Warrant duly executed by the holder hereof or his agent or attorney and
funds sufficient to pay any stock
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transfer taxes payable upon the making of such transfer. Upon such surrender and
payment the Company shall execute and deliver a new Warrant or Warrants in the
name of the assignee or assignees and in the denominations specified in such
instrument of assignment, and this Warrant shall promptly be canceled. If and
when this Warrant is assigned in blank, the Company may (but shall not be
obliged to) treat the bearer hereof as the absolute owner of this Warrant for
all purposes and the Company shall not be affected by any notice to the
contrary. A Warrant may be exercised by a new holder for the purchase of shares
of Common Stock without having a new Warrant issued.
This Warrant may be divided or combined with other Warrants upon
presentation hereof at such principal office in Washington, D.C., together with
a written notice specifying the names and denominations in which new Warrants
are to be issued, signed by the holder hereof or his agent or attorney. Subject
to compliance with the preceding paragraph as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
The Company shall pay all expenses, taxes (other than stock transfer taxes)
and other charges payable in connection with the preparation, issue and delivery
of Warrants hereunder.
(S)3. Restrictions on Exercise and Transfer of Warrants and Common Stock.
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This Warrant shall be exercisable (1) only under circumstances such that
the issue of Common Stock issuable upon such exercise is exempt from the
requirements of registration under the Securities Act of 1933, as amended (or
any similar statute then in effect) and any applicable state securities law or
(2) upon registration of such Common Stock in compliance therewith. This
Warrant shall be transferable only under circumstances such that the transfer is
exempt from the requirements of registration under the Securities Act of 1933,
as amended (or any similar statute then in effect) and any applicable state
securities law.
Before any transfer or attempted transfer of all or any part of this
Warrant or such Common Stock, the holder hereof or thereof shall give the
Company written notice of its intention so to do describing briefly the manner
of any such proposed transfer, and if the circumstances set forth in clause (y)
of the following paragraph are relevant, so stating and describing briefly the
offeror and the price so offered. Promptly after receiving such written notice,
the Company shall present copies thereof to Company counsel and to any special
counsel designated by the holder. If, in the opinion of counsel for the Company
and counsel, if any, for the holder, the proposed transfer may be effected
without registration under the Securities Act of 1933, as amended (or any
similar statute then in effect) and any applicable state securities law of any
such securities, the Company, as promptly as practicable, shall
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notify the holder of such opinion, whereupon the securities proposed to be
transferred may be transferred in accordance with the terms of such notice
subject, however, to the provisions of the next following paragraph. The Company
shall not be required to effect any such transfer before the receipt of such
favorable opinion or opinions or the effectiveness of registration.
(S)4. Certain Covenants.
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The Company covenants and agrees that:
(a) it will at all times reserve and set apart and have, free from
preemptive rights, a number of shares of authorized but unissued Common
Stock sufficient to enable it at any time to fulfill all its obligations
hereunder; and
(b) before taking any action that would cause an adjustment reducing
the Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Warrants, the Company will take any corporate
action that may be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of such Common Stock at
such adjusted Exercise Price.
(S)5. Notices.
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In case the Company proposes
(a) to pay any dividend payable in stock (of any class or classes)
or in Convertible Securities upon its Common Stock or make any distribution
(other than ordinary cash dividends) to the holders of its Common Stock, or
(b) to grant to the holders of its Common Stock generally any rights
or options, or
(c) to effect any capital reorganization or reclassification of
capital stock of the Company, or
(d) to consolidate with, or merge into, any other corporation or to
transfer its property as an entirety or substantially as an entirety, or
(e) to effect the liquidation, dissolution or winding up of the
Company,
then the Company shall cause notice of any such intended action to be given to
all holders of record of outstanding Warrants not less than 30 days before the
date on which the transfer books of the Company shall close or a record be taken
for such
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stock dividend, distribution or granting of rights or options, or the date when
such capital reorganization, reclassification, consolidation, merger, transfer,
liquidation, dissolution or winding up shall be effective, as the case may be.
Any notice or other document required or permitted to be given or delivered
to holders of record of Warrants shall be mailed first-class postage prepaid to
each such holder at the last address shown on the books of the Company
maintained for the registry and transfer of the Warrants. Any notice or other
document required or permitted to be given or delivered to holders of record of
Common Stock issued pursuant to Warrants shall be mailed first-class postage
prepaid to each such holder at such holder's address as the same appears on the
stock records of the Company. Any notice or other document required or
permitted to be given or delivered to the Company shall be mailed first class
postage prepaid to the principal office of the Company, at 000 Xxxxxxxxxxx Xxx.,
X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, or delivered to the office of one of
the Company's executive officers at such address, or such other address within
the United States of America as shall have been furnished by the Company to the
holders of record of such Warrants and the holders of record of such Common
Stock.
(S)6. Limitation of Liability; Not Stockholders.
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No provision of this Warrant shall be construed as conferring upon the
holder hereof the right to vote or to consent or to receive dividends or to
receive notice as a stockholder in respect of meetings of stockholders for the
election of directors of the Company or any other matter whatsoever as
stockholders of the Company. No provision hereof, in the absence of affirmative
action by the holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the purchase price or as a stockholder
of the Company, whether such liability is asserted by the Company, creditors of
the Company or others.
(S)7. Loss, Destruction, etc, of Warrants.
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Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, mutilation or destruction of any Warrant, and in the case of any
such loss, theft or destruction upon delivery of a bond of indemnity in such
form and amount as shall be reasonably satisfactory to the Company, or in the
event of such mutilation upon surrender and cancellation of the Warrant, the
Company will make and deliver a new Warrant, of like tenor, in lieu of such
lost, stolen, destroyed or mutilated Warrant. Any Warrant issued under the
provisions of this Section 7 in lieu of any Warrant alleged to be lost,
destroyed or stolen, or of any mutilated Warrant, shall constitute an original
contractual obligation on the part of the Company.
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(S)8. Adjustment.
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The Exercise Price shall be subject to adjustment from time to time
or upon exercise as provided in this Section 8.
(a) Split, Subdivision or Consolidation of Shares. If the Company shall
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split, subdivide or combine the securities as to which purchase rights exist
under this Warrant, into a different number of securities of the same class, the
Exercise Price after such consolidation or subdivision will be increased or
reduced, as the case may be, such increase or decrease, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective. The
holder hereof will not be entitled to receive a fraction of a share of Common
Stock.
(b) Stock Dividends. In the event that the holders of the securities as
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to which purchase rights under this Warrant exist shall have received or become
entitled to receive, without payment therefor, other or additional stock or
securities or property (other than cash) of the Company by way of dividend, then
in each case, the Exercise Price shall be adjusted so that this Warrant shall
represent the right to acquire, in addition to the number of shares of Common
Stock indicated in the caption of this Warrant, and without payment of any
additional consideration therefor, the amount of such other securities or
property (other than cash) of the Company to which the holder hereof would have
been entitled had this Warrant been exercised prior to the distribution of the
dividend and had thereafter such holder retained such shares and/or all other
additional stock available to it during the period prior to the exercise of this
Warrant, giving effect to all adjustments called for in this Section 8.
(c) Adjustment of Exercise Price Upon Issuance of Additional Shares of
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Common. In the event that prior to the exercise of this Warrant, the Company
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shall issue Additional Shares of Common (as defined below) (including Additional
Shares of Common deemed to be issued pursuant to Section 8(d)) without
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consideration or for a consideration per share less than the Exercise Price in
effect on the date of and immediately prior to such issue (the "New Issue
Price"), then and in such event, the Exercise Price shall be reduced,
concurrently with such issue, to a price equal to the New Issue Price, subject
to the provisions of Section 8(k).
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(d) Issue of Securities Deemed Issue of Additional Shares of Common --
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Options and Convertible Securities. In the event that prior to the exercise of
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this Warrant, the Company shall issue any Options or Convertible Securities (as
those terms are defined below) (other than Options or Convertible Securities
which are not Additional Shares of Common) or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the shares of Common issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or
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exchange of such Convertible Securities, shall be deemed to be Additional Shares
of Common issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record date;
provided, that in any such case in which Additional Shares of Common are deemed
to be issued:
(i) no further adjustment in the Exercise Price shall be made upon
the subsequent issue of Convertible Securities or shares of Common upon the
exercise of such Options or conversion or exchange of such Convertible
Securities;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decreases in the number of shares of
Common issuable, upon the exercise, conversion or exchange thereof, the Exercise
Price computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent adjustments based thereon,
shall, provided that no shares of Common have theretofore been issued with
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respect to such Options or Convertible Securities, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options or the rights of conversion or exchange under
such Convertible Securities;
(iii) no readjustment pursuant to clause (ii) above shall have the
effect of increasing the Exercise Price to an amount which exceeds the lower of
(1) such Exercise Price on the original adjustment date with respect to such
deemed issuance of Additional Shares of Common, or (2) such Exercise Price that
would have resulted from any issuance of Additional Shares of Common between
such original adjustment date and such readjustment date; and
(iv) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any decrease in the
consideration payable to the Company upon the exercise, conversion or exchange
thereof, the Exercise Price computed upon the original issue thereof (or upon
the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such decrease becoming effective, be
recomputed to reflect such decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities.
(e) Special Definitions. For purposes of Sections 8(c) through (h), the
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following definitions shall apply:
(i) "Option" shall mean rights, options or warrants to subscribe
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for, purchase or otherwise acquire either Common or Convertible Securities.
(ii) "Common" shall mean (i) the Company's presently authorized
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Common Stock as such class exists on the date of issuance of this Warrant, (ii)
securities issued upon conversion of the Notes issued under the Agreement (the
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"Northwood Notes"), and (iii) stock of the Company of any class thereafter
authorized that ranks, or is entitled to a participation, as to assets or
dividends, substantially on a parity with Common Stock.
(iii) "Convertible Securities" shall mean any evidences of
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indebtedness, shares or other securities directly or indirectly convertible into
or exchangeable for Common.
(iv) "Additional Shares of Common" shall mean all shares of Common
---------------------------
issued (or, pursuant to Section 8(d), deemed to be issued) by the Company after
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the date hereof and prior to the exercise of this Warrant, other than shares of
Common Stock issued or issuable:
(A) upon conversion of the Northwood Notes or upon conversion
of notes containing substantially the same terms and conditions as the Northwood
Notes, or upon exercise of warrants issued to holders of notes containing
substantially the same terms and conditions as the Warrants;
(B) to officers and employees of the Company or its
Subsidiaries under any stock option, stock purchase, stock appreciation, or
bonus plan adopted by the stockholders of the Company and shares of Common Stock
issued to such officers and employees pursuant to such stock options or rights,
or to members of the Company's Board of Directors or Board of Advisers;
provided, however, that any shares covered by such options or rights plus any
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such shares issued (without duplication as to shares issued under options) in
excess of 250,000 shares of Common Stock as constituted on the date of issuance
of this Warrant (as adjusted pursuant to anti-dilution provisions contained in
such stock options or rights) shall be deemed to be Additional Shares of Common;
(C) as a dividend or distribution on Common Stock or any event
for which adjustment is made pursuant to Sections 8(a) and (b) hereof; or
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(D) by way of dividend or other distribution on (1) shares
excluded from the definition of Additional Shares of Common by the foregoing
clauses (A) through (C) of this clause (D) or (2) shares of Common so excluded
under this clause (D).
(f) No Adjustment of Exercise Price. No adjustment in the Exercise Price
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shall be made in respect of the issuance of Additional Shares of Common unless
the consideration per share for an Additional Share of Common issued or deemed
to be issued by the Company is less than the Exercise Price in effect on the
date of, and immediately prior to, the issue of such Additional Share of Common.
(g) Effect of "Split-up or "Split-down" on "deemed issued" shares. Upon
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the effective or record date for any subdivision or combination of the Common
Stock
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of the character described in Section 8(a), including the issuance of a stock
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dividend which is treated as such a subdivision under Section 8(b), the number
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of the shares of Common Stock which are at the time deemed to have been issued
by virtue of Section 8(d), but have not actually been issued, shall be deemed to
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be increased or decreased proportionately.
(h) Computation of Consideration. For the purposes of this Section 8:
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(i) The consideration received by the Company upon the actual issuance
of Additional Shares of Common shall be deemed to be the sum of the amount of
cash and the fair value of property (as determined in good faith by resolution
of the Board of Directors of the Company as at the time of issue or "deemed
issue" in the case of the following paragraph (ii)) received or receivable by
the Company as the consideration or part of the consideration (v) at the time of
issuance of the Common, (w) for the issuance of any rights or options upon the
exercise of which such Common was issued, (x) for the issuance of any rights or
options to purchase Convertible Securities upon the conversion of which such
Common was issued, (y) for the issuance of the Convertible Securities upon
conversion of which such Common was issued, and (z) at the time of the actual
exercise of such rights, options or conversion privileges upon the exercise of
which such Common was issued, in each case without deduction for commissions and
expenses incurred by the Company for any underwriting of, or otherwise in
connection with the issue or sale of, such rights, options, Convertible
Securities or Common, but after deduction of any sums paid by the Company in
cash upon the exercise of, and pursuant to, such rights, options or conversion
privileges in respect of fractional shares of Common; and
(ii) The consideration deemed to have been received by the Company for
Additional Shares of Common deemed to be issued pursuant to rights, options and
conversion privileges by reason of transactions of the character described in
Section 8(d) shall be the consideration (determined as provided in the foregoing
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paragraph (i)) that would be received or receivable by the Company at or before
the actual issue of such shares of Common so deemed to be issued, if all rights,
options and conversion privileges necessary to effect the actual issue of the
number of shares deemed to have been issued had been exercised (successively
exercised in the case of rights or options to purchase Convertible Securities),
and the minimum consideration received or receivable by the Company upon such
exercise had been received; all computed without regard to the possible future
effect of anti-dilution provisions on such rights, options and/or conversion
privileges.
(i) Statement of Adjustment. Whenever the Exercise Price is adjusted
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pursuant to any of the foregoing provisions of this Section 8, the Company shall
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promptly prepare a written statement signed by the President of the Company,
setting forth the adjustment, determined as provided in this Section, and in
reasonable detail the facts requiring such adjustment and the calculation
thereof.
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Such statement shall be filed among the permanent records of the Company and a
copy thereof shall be furnished to the holder of this Warrant without request
and shall at all reasonable times during business hours be open to inspection by
holders of the Warrants.
(j) Determination by the Board of Directors. All determinations by the
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Board of Directors of the Company under the provisions of this Section 8 shall
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be made in good faith.
(k) Minimum Exercise Price after IPO or Conversion. Notwithstanding the
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provisions of Section 8(c), following the earlier of (i) the closing of the IPO
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or (ii) the conversion of the Note issued under the Agreement, the Exercise
Price shall not be reduced below $8.71, as adjusted for stock splits and
consolidations and for the issuance of stock dividends.
(l) Effect of IPO on Exercise Price. For the avoidance of doubt, it is
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acknowledged that if, prior to the IPO, the Exercise Price has been adjusted
pursuant to Section 8(c), upon the closing of the IPO, the Exercise Price shall
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become the price per share, not taking into effect the underwriter's commission,
of the IPO.
(m) Termination of Certain Adjustment Provisions. The provisions of
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Sections 8(c) through (e) shall terminate upon the earlier of (i) the second
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anniversary after the closing of the IPO or (ii) the second anniversary of the
conversion of the Note issued under the Agreement.
(S)9. Governing Law.
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This Warrant shall be governed by the laws of the State of Delaware,
without giving effect to the rules respecting conflict of law.
(S)10. Entire Agreement; Modification; Waiver. This Warrant constitutes
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the entire agreement between the parties pertaining to the subject matter
herein, and supersedes all prior and contemporaneous agreements,
representations, and understandings of the parties. No supplement,
modification, or amendment of this Warrant shall be binding unless executed in
writing by the parties hereto. No waiver of any of the provisions of this
Warrant shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its
name by a duly authorized officer.
Dated: September 10, 1999
E2Enet, Inc.
By /s/ Xxxxxx X. Xxxxxx
_______________________
Title SVP-CFO
_____________________
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