EXHIBIT 4.6
Exhibit A to
Purchase Agreement
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR FOREIGN JURISDICTION.
NEITHER THIS WARRANT, SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS.
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XXXXXXX.XXX, INC.
COMMON STOCK PURCHASE WARRANT
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This certifies that, for good and valuable consideration,
Xxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), grants to
_________________________, a _________________ (the "Warrantholder"), the right
to subscribe for and purchase from the Company, during the Exercise Period (as
hereinafter defined), ____________ (______) validly issued, fully paid and
nonassessable shares, par value $0.000225, of Common Stock of the Company (the
"Warrant Shares"), at the exercise price per share equal to $2.36 (the "Exercise
Price"), all subject to the terms, conditions and adjustments herein set forth.
Capitalized terms used herein shall have the meanings ascribed to such terms in
Section 9 below.
1. Warrant. This Warrant is issued pursuant to, and in accordance
with, Section 2.3 of the Purchase Agreement and is subject to the terms thereof.
2. Exercise of Warrant; Payment of Taxes.
2.1 Exercise of Warrant. Subject to the terms and
conditions set forth herein, this Warrant may be exercised at any time, in whole
or in part, by the Warrantholder during the Exercise Period by:
(a) the surrender of this Warrant to the Company,
with a duly executed Exercise Form, and
(b) subject to Section 2.2 below, the delivery of
payment to the Company, for the account of the Company, by cash, wire transfer,
certified or official bank check or any other means approved by the Company, of
the aggregate Exercise Price in lawful money of the United States of America.
The Company agrees that the Warrant Shares shall be deemed to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close of
business on
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the date on which this Warrant shall have been surrendered and payment made for
the Warrant Shares as aforesaid.
2.2 Conversion Right.
(a) In lieu of the payment of the aggregate
Exercise Price, the Warrantholder shall have the right (but not the obligation),
to require the Company to convert this Warrant, in whole or in part, into shares
of Common Stock (the "Conversion Right") as provided for in this Section 2.2.
Upon exercise of the Conversion Right, the Company shall deliver to the
Warrantholder (without payment by the Warrantholder of any of the Exercise
Price) in accordance with Section 2.1(b) that number of shares of Common Stock
equal to the quotient obtained by dividing (i) the value of the Warrant or
portion thereof at the time the Conversion Right is exercised (determined by
subtracting the aggregate Exercise Price at the time of the exercise of the
Conversion Right from the aggregate Current Market Price for the shares of
Common Stock issuable upon exercise of the Warrant at the time of the exercise
of the Conversion Right) by (ii) the Current Market Price of one share of Common
Stock at the time of the exercise of the Conversion Right.
(b) The Conversion Right may be exercised by the
Warrantholder on any Business Day prior to the end of the Exercise Period by
surrender of this Warrant to the Company, with a duly executed Exercise Form
with the conversion section completed, exercising the Conversion Right and
specifying the total number of shares of Common Stock that the Warrantholder
will be issued pursuant to such conversion.
2.3 Warrant Shares Certificate. A stock certificate or
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder within five (5) Business Days after receipt of
the Exercise Form by the Company and, if the Conversion Right is not exercised,
the payment by the Warrantholder of the aggregate Exercise Price. If this
Warrant shall have been exercised only in part, the Company shall, at the time
of delivery of the stock certificate or certificates, deliver to the
Warrantholder a new Warrant evidencing the right to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be identical with
this Warrant.
2.4 Payment of Taxes. The Company will pay all documentary
stamp or other issuance taxes, if any, attributable to the issuance of Warrant
Shares upon the exercise of this Warrant; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer involved in the issue or delivery of any Warrants or Warrant
certificates or Warrant Shares in a name other than that of the then
Warrantholder as reflected upon the books of the Company.
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3. Restrictions on Transfer; Restrictive Legends.
3.1 At no time may this Warrant or the Warrant Shares be
offered, sold, transferred, pledged or otherwise disposed of, in whole or in
part, to any Person except in accordance with applicable federal and state
securities laws.
3.2 Except as otherwise permitted by this Section 3, (a)
each Warrant (and each Warrant issued in substitution for any Warrant pursuant
to Section 6) shall be stamped or otherwise imprinted with a legend in
substantially the form as set forth on the cover of this Warrant and (b) each
certificate for Warrant Shares issued upon the exercise of any Warrant and each
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the form provided in the Purchase Agreement. Notwithstanding the foregoing, the
Warrantholder may require the Company to issue a Warrant or a certificate for
Warrant Shares, in each case without a legend, if either (i) such Warrant or
such Warrant Shares, as the case may be, have been registered for resale under
the Securities Act, (ii) the Warrantholder has delivered to the Company an
opinion of legal counsel (from a firm reasonably satisfactory to the Company)
which opinion shall be addressed to the Company to the effect that such
registration is not required with respect to such Warrant or such Warrant
Shares, as the case may be or (iii) such Warrant or Warrant Shares may be sold
pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act.
4. Reservation and Registration of Shares. The Company covenants
and agrees as follows:
(a) All Warrant Shares that are issued upon the
exercise of this Warrant shall, upon issuance, be validly issued, not subject to
any preemptive rights, and be free from all taxes, liens, security interests,
charges, and other encumbrances with respect to the issuance thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issue.
(b) The Company shall at all times have authorized
and reserved, and shall keep available and free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
(c) The Company shall not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
spin-off, consolidation, merger, dissolution, issue or sale of securities or any
other action or inaction, seek to avoid the observance or performance of any of
the terms of this Warrant, and shall at all times in good faith assist in
performing and giving effect to the terms hereof.
5. Anti-dilution Adjustments. The Exercise Price and the number
of Warrant Shares to be received upon exercise of this Warrant shall be subject
to adjustment as follows:
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5.1 Dividend, Subdivision, Combination or Reclassification
of Common Stock. If the Company shall at any time or from time to time, after
the issuance of this Warrant but prior to the exercise hereof, (w) make a
dividend or distribution on the outstanding shares of Common Stock payable in
Capital Stock, (x) subdivide the outstanding shares of Common Stock into a
larger number of shares, (y) combine the outstanding shares of Common Stock into
a smaller number of shares, through a reverse stock split or otherwise, or (z)
issue any shares of its Capital Stock in a reclassification of the Common Stock
(other than any such event for which an adjustment is made pursuant to another
clause of this Section 5), then, and in each such case, (A) the aggregate number
of Warrant Shares for which this Warrant is exercisable (the "Warrant Share
Number") immediately prior to such event shall be adjusted (and any other
appropriate actions shall be taken by the Company) so that the Warrantholder
shall be entitled to receive upon exercise of this Warrant the number of shares
of Common Stock or other securities of the Company that it would have owned or
would have been entitled to receive upon or by reason of any of the events
described above, had this Warrant been exercised immediately prior to the
occurrence of such event and (B) the Exercise Price payable upon the exercise of
this Warrant shall be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction, the numerator of which shall be the
number of Warrant Shares issuable upon the exercise of this Warrant immediately
prior to such adjustment, and the denominator of which shall be the number of
Warrant Shares issuable immediately thereafter. An adjustment made pursuant to
this Section 5.1 shall become effective retroactively (x) in the case of any
such dividend or distribution, to a date immediately following the close of
business on the record date for the determination of holders of shares of Common
Stock entitled to receive such dividend or distribution or (y) in the case of
any such subdivision, combination or reclassification, to the close of business
on the day upon which such corporate action becomes effective.
5.2 Issuance of Common Stock or Common Stock Equivalents
Below Exercise Price.
(a) If the Company shall at any time or from time
to time, after the issuance of this Warrant but prior to the exercise hereof,
issue or sell (such issuance or sale, a "New Issuance") any shares of Common
Stock or Common Stock Equivalents at a price per share of Common Stock (the "New
Issue Price") that is less than the Exercise Price then in effect as of the
record date or Issue Date (as defined below), as the case may be (the "Relevant
Date") (treating the price per share of Common Stock, in the case of the
issuance of any Common Stock Equivalent, as equal to (x) the sum of the price
for such Common Stock Equivalent plus any additional consideration payable
(without regard to any anti-dilution adjustments) upon the conversion, exchange
or exercise of such Common Stock Equivalent divided by (y) the number of shares
of Common Stock initially underlying such Common Stock Equivalent), other than
(i) issuances or sales for which an adjustment is made pursuant to another
subsection of this Section 5 and (ii) issuances in connection with an Excluded
Transaction, then, and in each such case, (A) the Exercise Price then in effect
shall be adjusted to equal the New Issue Price, and (B) the Warrant Share Number
shall be increased to equal the product of (i) the aggregate number of Warrant
Shares for which this Warrant is exercisable
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immediately prior to the New Issuance multiplied by (ii) a fraction, the
numerator of which shall be the Exercise Price in effect on the day immediately
prior to the Relevant Date and the denominator of which shall be the Exercise
Price in effect immediately after such adjustment. Such adjustment shall be made
whenever such shares of Common Stock or Common Stock Equivalents are issued, and
shall become effective retroactively (x) in the case of an issuance to the
stockholders of the Company, as such, to a date immediately following the close
of business on the record date for the determination of shareholders entitled to
receive such shares of Common Stock or Common Stock Equivalents and (y) in all
other cases, on the date (the "Issue Date") of such issuance; provided, however,
that the determination as to whether an adjustment is required to be made
pursuant to this Section 5.2 shall be made only upon the issuance of such shares
of Common Stock or Common Stock Equivalents, and not upon the issuance of any
security into which the Common Stock Equivalents convert, exchange or may be
exercised.
(b) In case at any time any shares of Common Stock
or Common Stock Equivalents or any rights or options to purchase any shares of
Common Stock or Common Stock Equivalents shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions or discounts paid or allowed by the
Company in connection therewith, as determined in good faith by the Board of
Directors.
(c) If any Common Stock Equivalents (or any
portions thereof) which shall have given rise to an adjustment pursuant to this
Section 5.2 shall have expired or terminated without the exercise thereof and/or
if by reason of the terms of such Common Stock Equivalents there shall have been
an increase or increases, with the passage of time or otherwise, in the price
payable upon the exercise or conversion thereof, then the Exercise Price
hereunder shall be readjusted (but to no greater extent than originally
adjusted) in order to (i) eliminate from the computation any additional shares
of Common Stock corresponding to such Common Stock Equivalents as shall have
expired or terminated, (ii) treat the additional shares of Common Stock, if any,
actually issued or issuable pursuant to the previous exercise of such Common
Stock Equivalents as having been issued for the consideration actually received
and receivable therefor and (iii) treat any of such Common Stock Equivalents
which remain outstanding as being subject to exercise or conversion on the basis
of such exercise or conversion price as shall be in effect at the time.
5.3 Certain Distributions. If the Company shall, at any
time or from time to time after the issuance of this Warrant but prior to the
exercise hereof, distribute to all holders of shares of Common Stock (including
any such distribution made in connection with a merger or consolidation in which
the Company is the resulting or surviving Person and shares of Common Stock are
not changed or exchanged) cash, evidences of indebtedness of the Company or
another issuer, securities of the Company or another issuer or other assets
(excluding dividends or distributions payable in shares of Common Stock for
which adjustment is made under Section 5.1 and any distribution in connection
with an Excluded Transaction) or rights or warrants to subscribe for or
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purchase any of the foregoing, then, and in each such case, (A) the Exercise
Price then in effect shall be adjusted (and any other appropriate actions shall
be taken by the Company) by being multiplied by the Exercise Price in effect
prior to the date of distribution by a fraction (i) the numerator of which shall
be such Current Market Price of Common Stock immediately prior to the date of
distribution less the then fair market value (as determined by the Board of
Directors in the exercise of their fiduciary duties) of the portion of the cash,
evidences of indebtedness, securities or other assets so distributed or of such
rights or warrants applicable to one share of Common Stock and (ii) the
denominator of which shall be the Current Market Price of the Common Stock
immediately prior to the date of distribution (but such fraction shall not be
greater than one) and (B) the Warrant Share Number shall be increased by being
multiplied by a fraction (i) the numerator of which shall be the Current Market
Price of one share of Common Stock immediately prior to the record date for the
distribution of such cash, evidences of indebtedness, securities, other assets
or rights or warrants and (ii) the denominator of which shall be the Current
Market Price of one share of Common Stock immediately prior to such record date
less the fair market value (as determined by the Board of Directors in the
exercise of their fiduciary duties) of the portion of such cash, evidences of
indebtedness, securities, other assets or rights or warrants so distributed.
Such adjustment shall be made whenever any such distribution is made and shall
become effective retroactively to a date immediately following the close of
business on the record date for the determination of stockholders entitled to
receive such distribution.
5.4 Other Changes. If the Company at any time or from time
to time, after the issuance of this Warrant but prior to the exercise hereof,
shall take any action affecting its Common Stock similar to or having an effect
similar to any of the actions described in any of Sections 5.1, 5.2, 5.3 or 5.8
(but not including any action described in any such Section) and the Board of
Directors in good faith determines that it would be equitable in the
circumstances to adjust the Exercise Price and Warrant Share Number as a result
of such action, then, and in each such case, the Exercise Price and Warrant
Share Number shall be adjusted in such manner and at such time as the Board of
Directors in good faith determines would be equitable in the circumstances (such
determination to be evidenced in a resolution, a certified copy of which shall
be mailed to the Warrantholder).
5.5 No Adjustment; Par Value Minimum. Notwithstanding
anything herein to the contrary, no adjustment under this Section 5 need be made
to the Exercise Price or Warrant Share Number if the Company receives written
notice from the Warrantholder that no such adjustment is required.
Notwithstanding any other provision of this Warrant, the Exercise Price shall
not be adjusted below the par value of a share of Common Stock.
5.6 Abandonment. If the Company shall take a record of the
holders of shares of its Common Stock for the purpose of entitling them to
receive a dividend or other distribution, and shall thereafter and before the
distribution to stockholders thereof legally abandon its plan to pay or deliver
such dividend or
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distribution, then no adjustment in the Exercise Price or Warrant Share Number
shall be required by reason of the taking of such record.
5.7 Certificate as to Adjustments. Upon any adjustment in
the Exercise Price or Warrant Share Number, the Company shall within a
reasonable period (not to exceed ten (10) days) following any of the foregoing
transactions deliver to the Warrantholder a certificate, signed by a senior
executive officer of the Company, setting forth in reasonable detail the event
requiring the adjustment and the method by which such adjustment was calculated
and specifying the adjusted Exercise Price and Warrant Share Number then in
effect following such adjustment.
5.8 Spin-off; Reorganization, Reclassification, Merger or
Sale Transaction.
(a) In case of any spin-off by the Company of another
Person (the "Spin-off Entity") at any time after the issuance of this Warrant
but prior to the exercise hereof, the Company shall issue to the Warrantholder a
new warrant, in form and substance satisfactory to the Company and the Majority
Warrantholders, entitling the Warrantholder to purchase, at the exercise price
equal to the excess of the Exercise Price in effect immediately prior to such
spin-off over the adjusted Exercise Price pursuant to Section 5.3, the number of
shares of common stock or other proprietary interest in the Spin-off Entity that
the Warrantholder would have owned had the Warrantholder, immediately prior to
such spin-off, exercised this Warrant.
(b) In case of any capital reorganization,
reclassification, Sale Transaction, merger or consolidation (other than a Sale
Transaction or a merger or consolidation of the Company in which the Company is
the surviving corporation) of the Company or other change of outstanding shares
of Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value) (each, a "Transaction") at any time
after the issuance of this Warrant but prior to the exercise hereof, the Company
shall execute and deliver to the Warrantholder at least twenty (20) Business
Days prior to effecting such Transaction a certificate stating that the
Warrantholder shall have the right thereafter to exercise this Warrant for the
kind and amount of shares of stock or other securities, property or cash
receivable upon such Transaction by a holder of the number of shares of Common
Stock into which this Warrant could have been exercised immediately prior to
such Transaction, and provision shall be made therefor in the agreement, if any,
relating to such Transaction. Such certificate shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 5. The provisions of this Section 5.8 and any
equivalent thereof in any such certificate similarly shall apply to successive
transactions.
5.9 Notices. In case at any time or from time to time:
(a) the Company shall declare a divided (or any
other distribution) on its shares of Common Stock;
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(b) the Company shall authorize the granting to the
holders of shares of its Common Stock rights or warrants to subscribe for or
purchase any shares of Capital Stock or any other rights or warrants;
(c) there shall occur a spin-off or Transaction; or
(d) the Company shall take any other action that
would require a vote of the Company's stockholders;
then the Company shall mail to the Warrantholder, as promptly as possible but in
any event at least ten (10) days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or granting of rights or warrants or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or granting of rights or
warrants are to be determined, or (B) the date on which such spin-off or
Transaction is expected to become effective and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for shares of stock or other securities or property or cash
deliverable upon such spin-off or Transaction. Notwithstanding the foregoing, in
the case of any event to which Section 5.8 is applicable, the Company shall also
deliver the certificate described in such Section 5.8 to the Warrantholder at
least ten (10) Business Days prior to effecting such reorganization or
reclassification as aforesaid.
6. Loss or Destruction of Warrant. Subject to the terms and
conditions hereof, upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, of such bond or indemnification
as the Company may reasonably require, and, in the case of such mutilation, upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant of like tenor.
7. Ownership of Warrant. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration or
transfer.
8. Amendments. Any provision of this Warrant may be amended and
the observance thereof waived only with the written consent of the Company and
the Warrantholder.
9. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Board of Directors" means the Board of Directors of the Company.
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"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of such Person's capital stock
(including, without limitation, Common Stock and preferred stock) and any and
all rights, warrants or options exchangeable for or convertible into such
capital stock.
"Common Stock" means the Common Stock, par value $0.000225 per
share, of the Company.
"Common Stock Equivalent" means any security or obligation which
is by its terms, directly or indirectly, convertible, exchangeable into or
exercisable into or for shares of Common Stock, including, without limitation,
the Series G Preferred Stock, any option, warrant or other subscription or
purchase right with respect to Common Stock or any Common Stock Equivalent.
"Company" has the meaning set forth in the first paragraph of
this Warrant.
"Conversion Right" has the meaning set forth in Section 2.2(a) of
this Warrant.
"Current Market Price" means, as of the date of determination,
(a) the average of the daily Market Price under clause (a), (b) or (c) of the
definition thereof of such Capital Stock during the immediately preceding thirty
(30) trading days ending on such date, and (b) if such Capital Stock is not then
listed or admitted to trading on any national securities exchange or quoted in
the over-the-counter market, then the Market Price under clause (d) of the
definition thereof on such date.
"Excluded Transaction" means (a) any issuance of up to an
aggregate of 2,630,817 shares of restricted stock or options to purchase shares
of Common Stock (subject to adjustment in the event of stock splits,
combinations or similar occurrences) to employees, officers or directors of the
Company pursuant to a stock option plan or other employee benefit arrangement
approved by the Board of Directors and (b) any issuance of Common Stock (i) upon
the conversion of Series G Preferred Stock, (ii) upon conversion of shares of
Series F Preferred Stock, (iii) as a dividend on shares of Series G Preferred
Stock or (iv) upon conversion or exercise of any Common Stock Equivalents and/or
(c) any issuance of Warrant Shares or any issuance of Common Stock in connection
with the Liquidation Payment or Sale Payment (each as defined in the Certificate
of the Powers, Designations, Preferences and Rights of the Series G Preferred
Stock).
"Exercise Form" means an Exercise Form in the form annexed hereto
as Exhibit A.
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"Exercise Period" means the period from the date hereof through
and until March 25, 2009.
"Exercise Price" has the meaning set forth in the first paragraph
of this Warrant.
"Issue Date" has the meaning set forth in Section 5.2(a) of this
Warrant.
"Market Price" means, with respect to the Capital Stock of any
Person, as of the date of determination, (a) if such Capital Stock is listed on
a national securities exchange, the closing price per share of such Capital
Stock on such date published in The Wall Street Journal (National Edition) or,
if no such closing price on such date is published in The Wall Street Journal
(National Edition), the average of the closing bid and asked prices on such
date, as officially reported on the principal national securities exchange on
which such Capital Stock is then listed or admitted to trading; or (b) if such
Capital Stock is not then listed or admitted to trading on any national
securities exchange but is designated as a national market system security by
the National Association of Securities Dealers, Inc., the last trading price of
such Capital Stock on such date; or (c) if there shall have been no trading on
such date or if such Capital Stock is not designated as a national market system
security by the National Association of Securities Dealers, Inc., the average of
the reported closing bid and asked prices of such Capital Stock on such date as
shown by the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotations System and reported by any member firm of the
New York Stock Exchange selected by the Corporation; or (d) if none of (a), (b)
or (c) is applicable, a market price per share determined in good faith by the
Board of Directors.
"Majority Warrantholders" means the holders of a majority of
Warrant Shares issuable upon exercise of all of the warrants issued pursuant the
Purchase Agreement assuming the exercise of all such warrants.
"New Issuance" has the meaning set forth in Section 5.2(a) of
this Warrant.
"New Issue Price" has the meaning set forth in Section 5.2(a) of
this Warrant.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental body or other entity of any
kind.
"Purchase Agreement" means the Securities Purchase Agreement,
dated March 15, 2002, by and among the Company, the Warrantholder and the other
parties listed therein.
"Relevant Date" has the meaning set forth in Section 5.2(a) of
this Warrant.
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"Sale Transaction" shall mean (a) (i) the merger or consolidation
of the Corporation into or with one or more Persons, (ii) the merger or
consolidation of one or more Persons into or with the Corporation or (iii) a
tender offer or other business combination if, in the case of (i), (ii) or
(iii), the stockholders of the Corporation prior to such merger or consolidation
do not retain at least a majority of the voting power of the surviving Person,
(b) the voluntary sale, conveyance, exchange or transfer to another Person of
(i) the voting Capital Stock of the Corporation if, after such sale, conveyance,
exchange or transfer, the stockholders of the Corporation prior to such sale,
conveyance, exchange or transfer do not retain at least a majority of the voting
power of the Corporation or (ii) all or substantially all of the assets of the
Corporation, or (c) the sale of assets of the Corporation, other than such a
sale in the ordinary course of business, the gross proceeds of which exceed
$10,000,000; provided, that with respect to (b)(ii) above, for the avoidance of
doubt, the sale, conveyance, exchange or transfer of the Ticketing Service Group
shall be deemed to be such a Sale, conveyance or transfer of substantially all
of the assets of the Corporation.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder.
"Series F Preferred Stock" means the Series F Senior Cumulative
Redeemable Preferred Stock par value $0.000225 per share, of the Company.
"Series G Preferred Stock" means the Series G Senior Cumulative
Redeemable Convertible Participating Preferred Stock, par value $0.000225 per
share, of the Company.
"Spin-off Entity" has the meaning set forth in Section 5.8 of
this Warrant.
"Transaction" has the meaning set forth in Section 5.8 of this
Warrant.
"Warrant Share Number" has the meaning set forth in Section 5.1
of this Warrant.
"Warrant Shares" has the meaning set forth in the first paragraph
of this Warrant.
"Warrantholder" has the meaning set forth in the first paragraph
of this Warrant.
10. Miscellaneous.
10.1 Entire Agreement. This Warrant and the Purchase
Agreement constitute the entire agreement between the Company and the
Warrantholder with respect to the Warrant and supersede all prior agreements and
understanding with respects to the subject matter of this Warrant.
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10.2 Binding Effect; Benefits. This Warrant shall inure
to the benefit of and shall be binding upon the Company and the Warrantholder
and their respective permitted successors and assigns. Nothing in this Warrant,
expressed or implied, is intended to or shall confer on any person other than
the Company and the Warrantholder, or their respective permitted successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant.
10.3 Headings. The headings in this Warrant are for
convenience of reference only and shall not limit or otherwise affect the
meaning of this Warrant.
10.4 Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(a) if to the Company:
Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxxx Phleger & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
(b) if to the Warrantholder:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
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Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
All such notices, demands and other communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
when delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 10.4 designate another address or
Person for receipt of notices hereunder.
10.5 Severability. Any term or provision of this Warrant
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the terms and
provisions of this Warrant or affecting the validity or enforceability of any of
the terms or provisions of this Warrant in any other jurisdiction.
10.6 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF.
10.7 No Rights or Liabilities as Stockholders. Nothing
contained in this Warrant shall be determined as conferring upon the
Warrantholder any rights as a stockholder of the Company or as imposing any
liabilities on the Warrantholder to purchase any securities whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
XXXXXXX.XXX, INC.
By:________________________________
Name:
Title:
Dated: March 25, 2002
Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase ______ shares of Common Stock and
[herewith tenders payment for such shares to the order of the Company in the
amount of $________ [hereby exercises its Conversion Right] in accordance with
the terms of this Warrant. The undersigned requests that a certificate for such
[Warrant Shares] [that number of Warrant Shares to which the undersigned is
entitled as calculated pursuant to Section 2.2] be registered in the name of the
undersigned and that such certificates be delivered to the undersigned's address
below.
The undersigned represents that it is acquiring such shares for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof (subject, however, to any requirement of law that
the disposition thereof shall at all times be within its control).
Dated: _________ __, ____
Signature _____________________________
_____________________________
(Print Name)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
