Exhibit 4.12(a)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT TO PURCHASE COMMON STOCK
OF
ABOVENET COMMUNICATIONS INC.
VOID AFTER MAY 20, 2003
This Warrant is issued to CCG Facilities Integration, or its
registered assigns ("Holder") by AboveNet Communications Inc., a Delaware
corporation (the "Company"), on May 20, 1998 (the "Warrant Issue Date").
1. PURCHASE SHARES. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this Warrant
at the principal office of the Company (or at such other place as the Company
shall notify the holder hereof in writing), to purchase from the Company up
to Eight Thousand Seven Hundred Fifty (8,750) fully paid and nonassessable
shares of Common Stock of the Company, as constituted on the Warrant Issue
Date. The number of shares of Common Stock issuable pursuant to this Section
1 (the "Shares") shall be subject to adjustment pursuant to Section 8 hereof.
2. EXERCISE PRICE. The purchase price for the Shares shall
be $4.00, as adjusted from time to time pursuant to Section 8 hereof (the
"Exercise Price").
3. EXERCISE PERIOD. This Warrant shall be exercisable, in
whole or in part, during the term commencing on the Warrant Issue Date and
ending at 5:00 p.m. on May 20, 2003.
4. METHOD OF EXERCISE. While this Warrant remains
outstanding and exercisable in accordance with Section 3 above, the Holder
may exercise, in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Election attached hereto, to the
Secretary of the Company at its principal offices; and
(b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
5. NET EXERCISE. In lieu of exercising this Warrant
pursuant to Section 4, the Holder may elect to receive, without the payment
by the Holder of any additional consideration, shares of Common Stock 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 the
holder hereof a number of shares of 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 the Holder pursuant to this net
exercise;
Y = The number of Shares in respect of which the
net issue election is made;
A = The fair market value of one share of the
Common Stock at the time the net issue
election is made;
B = The Exercise Price (as adjusted to the
date of the net issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or through the Nasdaq National Market, the value shall be
deemed to be the average of the closing prices of the securities on such
exchange over the thirty (30) day period ending three (3) days prior to the net
exercise election; (ii) if traded over-the-counter, the value shall be deemed to
be the average of the closing bid or sale prices (whichever is applicable) over
the thirty (30) day period ending three (3) days prior to the net exercise; and
(iii) if there is no active public market, the value shall be the fair market
value thereof, as determined in good faith by the Board of Directors of the
Company; provided, that, if the Warrant is being exercised upon the closing of
the IPO, the value will be the initial "Price to Public" of one share of such
Common Stock specified in the final prospectus with respect to such offering.
6. CERTIFICATES FOR SHARES. Upon the exercise of the
purchase rights evidenced by this Warrant, one or more certificates for the
number of Shares so purchased shall be issued as soon as practicable
thereafter (with appropriate restrictive legends, if applicable), and in any
event within thirty (30) days of the delivery of the subscription notice.
7. ISSUANCE OF SHARES. The Company covenants that the
Shares, when issued pursuant to the exercise of this Warrant, will be duly
and validly issued, fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issuance thereof.
8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The
number of and kind of securities purchasable upon exercise of this Warrant
and the Exercise Price shall be subject to adjustment from time to time as
follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If
the Company shall at any time prior to the expiration of this Warrant
subdivide its Common Stock, by split-up or otherwise, or combine its Common
Stock, or issue additional shares of its Common Stock or Common Stock as a
dividend with respect to any shares of its Common Stock, the number of Shares
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination. Appropriate adjustments shall also be
made to the purchase price payable per share, but the aggregate purchase
price payable for the total number of Shares purchasable under this Warrant
(as adjusted) shall remain the same. Any adjustment under this Section 8(a)
shall become effective at the close of business on the date the subdivision
or combination becomes effective, or as of the record date of such dividend,
or in the event that no record date is fixed, upon the making of such
dividend.
(b) RECLASSIFICATION, REORGANIZATION AND CONSOLIDATION.
In case of any reclassification, capital reorganization, or change in the
Common Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 8(a) above), then, as
a condition of such reclassification, reorganization, or change, lawful
provision shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall have the right at any time prior to the expiration of this
Warrant to purchase, at a total price equal to that payable upon the exercise
of this Warrant, the kind and amount of shares of stock and other securities
and property receivable in connection with such reclassification,
reorganization, or change by a holder of the same number of shares of Common
Stock as were purchasable by the Holder immediately prior to such
reclassification, reorganization, or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the
Holder so that the provisions hereof shall thereafter be applicable with
respect to any shares of stock or other securities and property deliverable
upon exercise hereof, and appropriate adjustments shall be made to the
purchase price per share payable hereunder, provided the aggregate purchase
price shall remain the same.
(c) NOTICE OF ADJUSTMENT. When any adjustment is
required to be made in the number or kind of shares purchasable upon exercise
of the Warrant, or in the Warrant Price, the Company shall promptly notify
the holder of such event and of the number of shares of Common Stock or other
securities or property thereafter purchasable upon exercise of this Warrant.
9. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the Exercise Price then in effect.
10. NO STOCKHOLDER RIGHTS. Prior to exercise of this
Warrant, the Holder shall not be entitled to any rights of a stockholder with
respect to the Shares, including (without limitation) the right to vote such
Shares, receive dividends or other distributions thereon, exercise preemptive
rights or be notified of stockholder meetings, and such holder shall not be
entitled to any notice or other communication concerning the business or
affairs of the Company. However, nothing in this Section 10 shall limit the
right of the Holder to be provided the notices required under this Warrant.
11. TRANSFERS OF WARRANT. Subject to compliance with
applicable federal and state securities laws, this Warrant and all rights
hereunder are transferable in whole or in part by the Holder to any person or
entity upon written notice to the Company. The transfer shall be recorded on
the books of the Company upon the surrender of this Warrant, properly
endorsed, to the Company at its principal offices, and the payment to the
Company of all transfer taxes and other governmental charges imposed on such
transfer. In the event of a partial transfer, the Company shall issue to the
holders one or more appropriate new warrants.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of
this Warrant shall inure to the benefit of, and be binding upon, the Company
and the Holders hereof and their respective successors and assigns.
13. AMENDMENTS AND WAIVERS. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holder.
14. NOTICES. All notices required under this Warrant and
shall be deemed to have been given or made for all purposes (i) upon personal
delivery, (ii) upon confirmation receipt that the communication was
successfully sent to the applicable number if sent by facsimile; (iii) one
day after being sent, when sent by professional overnight courier service, or
(iv) five days after posting when sent by registered or certified mail.
Notices to the Company shall be sent to the principal office of the Company
(or at such other place as the Company shall notify the Holder hereof in
writing). Notices to the Holder shall be sent to the address of the Holder on
the books of the Company (or at such other place as the Holder shall notify
the Company hereof in writing).
15. ATTORNEYS' FEES. If any action of law or equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be entitled.
16. CAPTIONS. The section and subsection headings of this
Warrant are inserted for convenience only and shall not constitute a part of
this Warrant in construing or interpreting any provision hereof.
17. GOVERNING LAW. This Warrant shall be governed by the
laws of the State of California as applied to agreements among California
residents made and to be performed entirely within the State of California.
18. "MARKET STAND-OFF" AGREEMENT. Holder hereby agrees
that, during the period of duration (not to exceed 180 days) specified by the
Company and an underwriter of Common Stock or other securities of the
Company, following the effective date of the initial underwritten public
offering of the Company's Common Stock, it shall not, to the extent requested
by the Company and such underwriter, directly or indirectly, sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant
any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company held by
it at any time during such period except Common Stock included in such
registration.
IN WITNESS WHEREOF, AboveNet Communications Inc. caused this
Warrant to be executed by an officer thereunto duly authorized.
ABOVENET COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
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NOTICE OF EXERCISE
To: ABOVENET COMMUNICATIONS INC.
The undersigned hereby elects to [CHECK APPLICABLE
SUBSECTION]:
-------- (a) Purchase _________________ shares of Common Stock
of AboveNet Communications Inc., pursuant to the
terms of the attached Warrant and payment of the
Exercise Price per share required under such Warrant
accompanies this notice;
OR
-------- (b) Exercise the attached Warrant for [all of the
shares] [________ of the shares] [CROSS OUT
INAPPLICABLE PHRASE] purchasable under the Warrant
pursuant to the net exercise provisions of Section 6
of such Warrant.
The undersigned hereby represents and warrants that the
undersigned is acquiring such shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such shares or any
part thereof.
WARRANTHOLDER:
CCG Facilities Integration
By:
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[NAME]
Address:
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Date:
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Name in which shares should be registered:
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