Exhibit 10.20
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). NEITHER THE WARRANT NOR SUCH SECURITIES CAN BE OFFERED OR
SOLD EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE ACT, OR AN EXEMPTION
FROM REGISTRATION UNDER THE ACT.
XXXXXXXXXXXXX.XXX, INC.
NONTRANSFERABLE COMMON STOCK PURCHASE WARRANT
CSW-1 30,000 shares
THIS NONTRANSFERABLE COMMON STOCK PURCHASE WARRANT, for value received, entitles
The Research Works, Inc. or its permitted assigns (the "Holder"), to subscribe
for and purchase from XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), subject to the terms and conditions set forth herein, at any time or
from time to time from the date hereof and before 5:00 PM, Eastern Time, on
October 27, 2004 (the "Exercise Period"), thirty thousand (30,000) shares (the
"Shares") of the Company's common stock, par value $.01 per share ("Common
Stock"). This Warrant will be exercisable at a price per share equal to seven
dollars and no cents ($7.00) (the "Exercise Price") in lawful funds of the
United States of America. This Warrant is being issued to the Holder in
consideration for services to be performed by the Holder as set forth in that
certain letter agreement between the Company and the Holder, a copy of which is
attached hereto (the Agreement").
1. Vesting; Exercise of Warrant. This Warrant shall vest immediately and may
thereafter be exercised during the Exercise Period as to the whole or any lesser
number of Shares, by the surrender of this Warrant (together with the duly
executed Election in the form attached hereto as Exhibit A) to the Company at
its office or at such other place as is designated in writing by the Company,
together with a check payable to the order of the Company in an amount equal to
the Exercise Price multiplied by the number of Shares for which this Warrant is
being exercised, or at the option of the Warrantholder, this Warrant may be
surrendered to the Company and the Company shall issue to the Warrantholder for
no additional cash consideration a number of shares of common stock determined
by dividing the product of the maximum number of shares of common stock the
Warrantholder is entitled to purchase hereunder times the difference between the
closing price per share on the date of surrender for exercise and the Exercise
Price, by the closing price per share on the date of surrender for exercise date
of surrender for exercise, as follows:
Number of shares to be issued = ((maximum # of shares purchasable under
terms of the Warrants) X ((closing price per share on the date of
surrender for exercise) - (Exercise Price))) / (closing price per share on
the date of surrender for exercise)
2. Record Holder of Warrants. As soon as practicable after exercise of this
Warrant, the Company shall issue and deliver to the Holder a certificate or
certificates for the Shares registered in the name of the Holder or its
designee. Upon exercise of this Warrant, the Holder shall be deemed to be the
holder of record of the Shares notwithstanding that the transfer books of the
Company shall then be closed or certificates representing such Shares shall not
then have been actually delivered to the Holder. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the right of the
Holder to purchase the balance of the Shares (or portions thereof) subject to
purchase hereunder, provided the Exercise Period has not expired.
3. Warrant Register. Any Warrant issued upon the permitted transfer or exercise
in part of this Warrant (together with this Warrant, the "Warrants") shall be
numbered and shall be registered in a warrant register as they are issued. The
Company shall be entitled to treat the registered holder of any Warrant upon the
warrant register as the owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amount to bad faith. The Warrants shall be nontransferable
except in accordance with Section 8 below.
4. Reservation of Common Stock. The Company shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for the
purpose of providing for the exercise of this Warrant, such number of shares of
Common Stock as shall, from time to time, be sufficient therefor. The Company
covenants that all shares of Common Stock issuable upon exercise of this Warrant
when paid for in accordance with the respective terms hereof, shall be validly
issued, fully paid and nonassessable by the Company.
5. Merger, Consolidation or Reclassification or Splits of Securities;
Adjustments.
(a) In case of any consolidation with or merger of the Company with or
into another corporation (other than a merger or consolidation in which
the Company is the surviving or continuing corporation), or in case of any
sale, lease or conveyance to another corporation of the property of the
Company as an entirety or substantially as an entirety, such successor,
leasing or purchasing corporation, as the case may be, shall (i) execute
with the Holder an agreement providing that the Holder shall have the
right thereafter to receive upon exercise of this Warrant solely the kind
and amount of shares of stock and other securities, property, cash or any
combination thereof receivable upon such consolidation, merger, sale,
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lease or conveyance by a Holder of the number of shares of Common Stock
for which this Warrant might have been exercised immediately prior to such
consolidation, merger, sale, lease or conveyance, and (ii) make effective
provision in its certificate of incorporation or otherwise, if necessary,
in order to effect such agreement.
(b) In case of any reclassification or change of the Shares issuable upon
exercise of this Warrant (other than a change in par value or from par
value to no par value) or in case of a subdivision or combination,
including any change in the shares into two or more classes or series of
shares, or in case of any consolidation or merger of another corporation
into the Company in which the Company is the continuing corporation and in
which there is a reclassification or change (including a change to the
right to receive cash or other property) of the Shares (other than a
change in par value, or from par value to no par value) the Holder shall
have the right thereafter to receive upon exercise of this Warrant solely
the kind and amount of shares of stock and other securities, property,
cash or any combination thereof receivable upon such reclassification,
change, consolidation or merger by a holder of the number of Shares for
which this Warrant might have been exercised immediately prior to such
reclassification, change, consolidation or merger.
(c) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Stock in shares of Stock, (ii)
subdivide or reclassify its outstanding shares of Stock into a greater
number of shares, or (iii) combine or reclassify its outstanding shares of
Stock into a smaller number of shares, the Exercise Price in effect at the
time of the record date for such dividend or distribution or of the
effective date of such subdivision, combination or reclassification shall
be proportionately adjusted so that the holder of this Warrant, exercised
after such date, shall be entitled to receive the aggregate number and
kind of shares which, if this Warrant had been exercised by such holder
immediately prior to such date, he would have owned upon such exercise and
been entitled to receive upon such dividend, subdivision, combination or
reclassification. For example, if the Company declares a 2-for-1 stock
distribution in which one share of Stock is distributed for each share
outstanding and the Exercise Price immediately prior to such event was
$2.00 per share, the adjusted Exercise Price immediately after such event
would be $1.00 per share. Such adjustment shall be made successively
whenever any event listed above shall occur.
(d) Upon the occurrence of any event described in Sections 5(a) or (b) or
(c) (an "Event"), the number of Shares acquirable thereafter upon exercise
of this Warrant shall be adjusted so that the Holder hereof is entitled to
receive upon exercise of this Warrant the number of Shares which the
Holder would have owned or would have been entitled to receive after the
happening of the Event had
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this Warrant been exercised immediately prior to the happening of such
Event; and the Exercise Price per share shall be correspondingly adjusted.
(e) Whenever there shall be an adjustment as provided in Section 5(d), the
Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its principal office,
which notice shall be accompanied by an officer's certificate setting
forth the number of Shares issuable after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and the
computation thereof, which officer's certificate shall be conclusive
evidence of the correctness of any such adjustment absent manifest error.
(f) All calculations under this Section 5 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
(g) The Company shall not be required to issue fractions of shares of
Common Stock or other capital stock of the Company upon the exercise of
Warrants. If any fraction of a share would be issuable upon the exercise
of any Warrant (or specified portions thereof), the Company shall purchase
such fraction for an amount in cash equal to the same fraction of the
current market price of such share of Common Stock on the date of exercise
of the Warrant, based on the average of the daily closing prices or sales
prices of the Common Stock for the thirty (30) consecutive trading days
immediately preceding such date.
(h) The above provisions of this Section 5 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases or conveyances or splits
similar to those described in Sections 5(a) and (b) and (c).
6. Notice of Certain Proposed Actions. In case at any time the Company shall
propose:
(a) to issue any rights, warrants or other securities to all holders of
Common Stock entitling them to purchase any additional shares of Common
Stock or any other rights, warrants or other securities; or
(b) to effect any reclassification or change of outstanding shares of
Common Stock, or any consolidation, merger, sale, lease or conveyance of
property described in Section 5; or
(c) to effect any liquidation, dissolution, or winding-up of the Company;
(d) then, and in any one or more of such cases, the Company shall give
written notice thereof, by certified mail, postage prepaid, to the Holder
at the Holder's address as it shall appear in the warrant register, mailed
five (5) days
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prior to the earlier to occur of (i) the date as of which the holders of
record of shares of Common Stock to be entitled to receive any such
rights, warrants or other securities are to be determined, or (ii) the
date on which any such reclassification, change of outstanding shares of
Common Stock, consolidation, merger, sale, lease, conveyance of property,
liquidation, dissolution, or winding-up is expected to become effective,
and the date as of which it is expected that holders of record of shares
of Common Stock, as the case may be, shall be entitled to exchange their
shares or warrants for securities or other property, if any, deliverable
upon such reclassification, change of outstanding shares, consolidation,
merger, sale, lease, conveyance of property, liquidation, dissolution, or
winding-up.
7. Exercise of Warrants; Issuance of Securities. The issuance of any shares or
warrants or other securities upon the exercise of this Warrant, and the delivery
of Certificates or other instruments representing such shares, warrants or other
securities, shall be made without charge to the Holder for any tax or other
charge in respect of such issuance. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any Certificate in a name other than that of the Holder
and the Company shall not be required to issue or deliver any such Certificate
unless and until the person or persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
8. Investment Representations; Transfer Restrictions; Lock-up; Legends.
(a) The Holder represents and warrants with respect to its purchase of
this Warrant that it is experienced in evaluating and investing in
Internet-related businesses such as the Company; that it is acquiring this
Warrant for investment for its own account and not with a view to, or for
resale in connection with, any distribution thereof; and that it has no
present intention of selling or distributing the Warrant or any of the
Shares issuable upon exercise. The Holder understands that this Warrant
and the Shares have not been registered under the Securities Act by reason
of a specific exemption from the registration provisions of the Securities
Act which depends upon, among other things, the bona fide nature of the
investment intent expressed herein. The Holder has had an opportunity to
discuss the Company's business, management and financial affairs with the
Company's management and to obtain any additional information necessary to
verify the accuracy of the information received. The Holder represents
that it is an accredited investor within the meaning of Regulation D
promulgated under the Securities Act, and is able to bear the economic
risk of its investment in the Company represented hereby.
(b) On the basis of the foregoing representations set forth in Section
8(a) above, this Warrant has not been registered under the Securities Act,
and neither this Warrant nor the Shares issuable upon exercise may be
sold, pledged, transferred
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or otherwise disposed of unless either (i) they first shall have been
registered under the Securities Act, or (ii) the Company first shall have
been furnished with an opinion of legal counsel reasonably satisfactory to
the Company or, at its option, legal counsel of the Company stating that
such sale or transfer is an exempted transaction under the Securities Act.
(c) In addition to applicable federal and state securities laws
restricting the public sale of the Shares to be issued to the Holder
hereunder, the Holder hereby irrevocably agrees that for a period of two
(2) years after the date(s) of exercise of this Warrant, it will not
offer, pledge, sell, assign or otherwise transfer directly or indirectly,
any of such Shares or enter into any agreement that transfers or assigns,
in whole or in part, any of the economic consequences of ownership of the
Shares (such restrictions adjusted for any stock splits,
recapitalizations, mergers or other similar events). The Holder agrees
that the foregoing shall be binding upon Xxxxxx and its respective
successors, assigns, heirs, and representatives.
(d) In accordance with this Section 8, the Shares to be issued upon
exercise of this Warrant shall be subject to a stop transfer order and the
certificate or certificates evidencing any such securities shall bear the
following legends:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND SUCH
SHARES (OR OTHER SECURITIES) CANNOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
A REGISTRATION STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT."
"THE SHARES ARE SUBJECT TO A LOCK-UP AGREEMENT CONTAINED IN SECTION 8 OF
THAT CERTAIN WARRANT WITH THE COMPANY DATED AS OF OCTOBER 27, 1999
PURSUANT TO WHICH THE HOLDER OF THIS CERTIFICATE HAS AGREED NOT TO OFFER,
PLEDGE, SELL OR OTHERWISE TRANSFER DIRECTLY OR INDIRECTLY THE SECURITIES
REPRESENTED BY THIS CERTIFICATE UNTIL TWO (2) YEARS FROM THE DATE OF
ISSUANCE. A COPY OF THE LOCK-UP AGREEMENT MAY BE OBTAINED BY CONTACTING
THE SECRETARY OF THE COMPANY."
9. Replacement of Certificates.
(a) Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated), and upon reimbursement of the Company's reasonable
incidental expenses, the Company shall execute and deliver to the Holder
thereof a new Warrant of like date, tenor and denomination.
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(b) Upon surrender for exchange of any Warrant, with proper instructions
to the Company and in accordance with the transfer restrictions set forth
in Section 8 below, the Company, upon reimbursement of the Company's
reasonable incidental expenses, will issue and deliver to or upon the
order of the Holder a new Warrant or Warrants of like tenor, in the name
of such Holder or as such Holder may direct (upon payment of any
applicable transfer taxes), calling in the aggregate on the face or faces
thereof for the number of Shares called for on the face or faces of the
Warrant or Warrants so surrendered.
10. Rights of Holder. The Holder of any Warrant shall not have, solely on
account of such status, any rights of a stockholder of the Company, either at
law or in equity, or to any notice of meetings of stockholders or of any other
proceedings of the Company, except as provided in this Warrant.
11. Notices. All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when delivered,
nor mailed by registered or Certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address of such
holder as shown on the books of the Company, or
(b) If to the Company, to Secretary, XxxxxxxXxxxxx.xxx, Inc., 0000 Xxxxx
00, X.X. Box 1347, Wall, NJ 07719.
12. Dispute Resolution. This Warrant shall be construed in accordance with the
laws of the State of Delaware, without giving effect to conflict of laws. By
accepting this Warrant, the Holder irrevocably agrees that any dispute regarding
this Warrant shall be submitted to arbitration to and shall be resolved in
accordance with the rules of the JAMS/Endispute for expedited cases then in
effect. The arbitrator(s) shall be mutually selected by the Company and the
Holder or in the event the parties cannot mutually agree, then appointed by
JAMS/Endispute. Any arbitration shall be held within a thirty (30) mile radius
of Wall, New Jersey and the arbitrator(s) shall apply Delaware law. Judgment
upon any award rendered by the arbitrator(s) shall be final and may be entered
in any court of competent jurisdiction.
Dated: October 27, 1999
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx, President
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EXHIBIT A
Election Form
The undersigned holder of the enclosed warrant hereby elects to exercise
said warrant to purchase ____ shares of common stock of XxxxxxxXxxxxx.xxx, Inc.
pursuant to the terms and conditions set forth in the enclosed warrant. Payment
in the amount of $_________________ representing the exercise price is enclosed
herewith. The undersigned hereby requests that the certificate for such shares
be issued in the name set forth below.
THE RESEARCH WORKS, INC.
Dated: ___________________ By:________________________
(Signature)
Name:______________________
(Please Print)
Address: __________________
___________________________
___________________________
Employer Identification Number
or Social Security Number
___________________________
If said number of shares shall not be all the shares purchasable under the
within Warrant, the Warrant Holder hereby requests that a new Warrant for the
unexercised portion shall be registered in the name set forth below and
delivered to the address set forth below.
Name: ___________________________
(Please Print)
Address: ________________________
________________________
________________________
Employer Identification Number
or Social Security Number:
___________________________
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