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EXHIBIT 10.11
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
REQUISITE TECHNOLOGY, INC.
WARRANT TO PURCHASE COMMON STOCK
NO. CW-__ DECEMBER 31, 1999
VOID AFTER DECEMBER 31, 2004
THIS CERTIFIES THAT, for value received, GE CAPITAL EQUITY INVESTMENTS,
INC. OR ITS AFFILIATE GENERAL ELECTRIC COMPANY "GE," FOR THE BENEFIT OF GE'S
DIVISION "GE SUPPLY," or assigns (the "HOLDER") is entitled to subscribe for and
purchase at the Exercise Price (defined below) from Requisite Technology, Inc.,
a Delaware corporation, with its principal office, at 00000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, XX 00000 (the "CORPORATION") up to two thousand five
hundred (2,500) shares of the Common Stock of the Corporation.
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
(a) "EXERCISE PERIOD" shall mean the period commencing with the
date hereof and ending five years from the date hereof, unless sooner terminated
as provided below.
(b) "EXERCISE PRICE" shall mean $3.50 per share, subject to
adjustment pursuant to Section 5 below.
(c) "EXERCISE SHARES" shall mean the shares of the Corporation's
Common Stock issuable upon exercise of this Warrant.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may be
exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Corporation at its address set forth above (or
at such other address as it may designate by notice in writing to the Holder):
(a) An executed Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price either (i) in cash or by check,
or (ii) by cancellation of indebtedness; and
(c) This Warrant.
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Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered in
the name of the Holder or persons affiliated with the Holder, if the Holder so
designates, shall be issued and delivered to the Holder within a reasonable
time, not exceeding fifteen (15) days, after the rights represented by this
Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Corporation are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
2.1 NET EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common Stock is
greater than the Exercise Price (at the date of calculation as set forth below),
in lieu of exercising this Warrant by payment of cash, the Holder may elect to
receive shares equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company together with the properly endorsed Notice of Exercise in
which event the Company shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
X = Y(A-B)
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A
Where X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised,
the portion of the Warrant being canceled (at the date of such
calculation)
A = the fair market value of one share of the Company's Common Stock
(at the date of such calculation)
B = Exercise Price (as adjusted to the date of such calculation)
For purposes of the above calculation, the fair market value of one
share of Common Stock shall be determined by the Company's Board of Directors in
good faith; provided, however, that in the event that this Warrant is exercised
pursuant to this Section 2.1 in connection with the Company's initial public
offering of its Common Stock, the fair market value of a share of Common Stock
shall be the per share offering price to the public of the Company's initial
public offering.
3. COVENANTS OF THE CORPORATION.
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3.1 COVENANTS AS TO EXERCISE SHARES. The corporation covenants and
agrees that all Exercise Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Corporation further covenants
and agrees that the Corporation will at all times during the Exercise Period,
have authorized and reserved, free from preemptive rights, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit exercise of this Warrant, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as shall
be sufficient for such purposes.
3.2 NO IMPAIRMENT. Except and to the extent as waived or consented to
by Holder, the Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Corporation, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment.
3.3 NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Corporation shall mail to the
Holder, at least ten (10) days prior to the date specified herein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
4. REPRESENTATIONS OF HOLDER.
4.1 ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. The Holder represents
and warrants and that it is acquiring the Warrant solely for its account for
investment and not with a view to or for sale or distribution of said Warrant or
any part thereof. The Holder also represents that the entire legal and
beneficial interests of the Warrant and Exercise Shares the Holder is acquiring
is being acquired for, and will be held for, its account only.
4.2 SECURITIES ARE NOT REGISTERED.
(a) The Holder understands that the Warrant has not been
registered under the Securities Act of 1933, as amended (the "ACT"), on the
basis that no distribution or public offering of the stock of the Corporation is
to be effected. The Holder realizes that the basis for the exemption may not be
present if, notwithstanding its representations, it has in mind merely acquiring
the securities for a fixed or determinable period in the future, or for a market
rise, or for sale if the market does not rise. The Holder has no such intention.
(b) The Holder recognizes that the warrants and Exercise Shares
being acquired by it must be hold indefinitely unless they are subsequently
registered under the Act or
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an exemption from such registration is available. The Holder recognizes that the
Corporation has no obligation to register the Warrant or the Exercise Shares of
the Corporation, or to comply with any exemption from such registration.
(c) The Holder is aware that neither the Warrant or Exercise Shares may be sold
pursuant to Rule 144 adopted under the Act unless certain conditions are met,
including, among other things, the existence of a public market for the shares,
the availability of certain current public information about the Company, the
resale owning following the required holding period under Rule 144 and the
number of shares being sold during any three month period not exceeding
specified limitations. Purchaser is aware that the conditions for resale set
forth in Rule 144 have not been satisfied and that the Corporation presently has
no plans to satisfy these conditions in the foreseeable future.
4.3 DISPOSITION OF WARRANT AND EXERCISE SHARES.
(a) The Holder further agrees not to make any disposition of all
or any part Warrant or Exercise Shares in any event unless and until:
(i) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with said registration statement; or
(ii) The Holder shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, the Holder
shall have furnished the Corporation with an opinion of counsel for the Holder
to the effect that such disposition will not require registration of such
Warrant or shares under the Act, and such opinion of counsel for the Holder
shall have been concurred in by the Corporation's counsel and the Corporation
shall have advised the Holder of such concurrence.
(b) The Holder understands and agrees that all certificates
evidencing the shares to be issued to the Holder may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
Of FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS
ASSIGNEES, AS PROVIDED IN THE BYLAWS OF THE CORPORATION.
(c) The Holder hereby agrees not sell or otherwise transfer or
dispose of all or any part of this Warrant or any Exercise Shares during a
period specified by the representative of
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the underwriters of Common Stock (not to exceed one hundred eighty (180) days)
following the effective date of the registration statement of the Corporation
filed under the Act. Holder further agrees that the Corporation may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such period.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Corporation by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like, the number and
class of shares available under the Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder of the Warrant, on
exercise for the same aggregate Exercise Price, the total number, class, and
kind of shares as the Holder would have owned had the Warrant been exercised
prior to the event and had the Holder continued to hold such shares until after
the event requiring adjustment. The form of this Warrant need not be changed
because of any adjustment in the number of Exercise Shares subject to this
Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All
Exercise Shares (including fractions) issuable upon exercise of this Warrant may
be aggregated for purposes of determining whether the exercise would result in
the issuance of any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Corporation shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such
fraction a sum in cash equal to the product resulting from multiplying the then
current fair market value of an Exercise Share by such fractions.
7. EARLY TERMINATION. In the event of, at any time during the Exercise
Period, an initial public offering of securities of the Corporation registered
under the Act, or any capital reorganization, or any reclassification of the
capital stock of the Corporation (other than a change in par value or from par
value to no par value or no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares), or the
consolidation or merger of the Corporation with or into another corporation
(other than a merger solely to effect a reincorporation of the Corporation into
another state), or the sale or other disposition of all or substantially all the
properties and assets of the Corporation in its entirety to any other person,
the Corporation shall provide to the Holder twenty (20) days advance written
notice of such public offering, reorganization, reclassification, consolidation,
merger or sale or other disposition of the Corporation's assets, and this
Warrant shall terminate unless exercised prior to the date the registration
statement related to such public offering is declared effective or the
occurrence of such reorganization, reclassification, consolidation, merger or
sale or other disposition of the Corporation's assets.
8. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not
entitle the Holder to any voting rights or other rights as a stockholder of the
Corporation.
9. TRANSFER OF WARRANT. Subject to applicable laws, the restriction on
transfer set forth on the first page of this Warrant, this Warrant and all
rights hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached
hereto to any transferee designated by Holder. The transferee shall sign an
investment letter in form and substance satisfactory to the Corporation.
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10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Corporation, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
11. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telex, telegram,
express mail or other form of rapid communications, if possible, and if not then
such notice or communication shall be mailed by first-class mail, postage
prepaid, addressed in each case to the party entitled thereto at the following
addresses: (a) if to the Corporation, to Requisite Technology, Inc., Attention:
President, 00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 and (b) if to
the Holder, to GE Capital Equity Investments, Inc., 000 Xxxx Xxxxx xxxx,
Xxxxxxxx, XX 00000 or at such other address as one party may furnish to the
other in writing. Notice shall be deemed effective on the date dispatched it by
personal delivery, telecopy, telex or telegram, two days after mailing if by
express mail, or three days after mailing if by first-class mail.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by its duly authorized officer as of December 31, 1999.
REQUISITE TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
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President
ATTEST:
/s/ X.X. Xxxxxxxxxx
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Secretary
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ASSIGNMENT FORM
(To assign the foregoing Warrant execute this form
and supply required information. Do not use this
form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name:
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(Please Print)
Address:
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Dated:
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Holder's
Signature:
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Holder's
Address:
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Signature
Guaranteed:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
