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EXHIBIT 4.5
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO TRANSFER OF THIS WARRANT OR
OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF SHALL BE VALID OR EFFECTIVE
UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAW, OR (B) THE HOLDER SHALL DELIVER TO THE COMPANY AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND OF ANY APPLICABLE STATE SECURITIES LAW.
WARRANT NO. 1 NOVEMBER 13, 2000
USINTERNETWORKING, INC.
COMMON STOCK PURCHASE WARRANT
USinternetworking, Inc., a Delaware corporation (the "COMPANY"),
hereby grants to [ NAME OF COMPANY ], or its permitted assigns or transferees
and each such permitted assignee or transferee being referred to herein as a
"HOLDER" and collectively as the "HOLDERS") the right to purchase, at any time
after the Original Issue Date (as defined below) and from time to time on and
after the date hereof until the Expiration Date (as defined below), [ AMOUNT
OF SHARES ] fully paid and non-assessable shares of Common Stock of the
Company, $.001 par value per share (the "COMMON STOCK"), to be purchased on
the terms and subject to the conditions set forth below.
This Warrant was originally issued on November 13, 2000 (the "ORIGINAL
ISSUE DATE"). This Warrant shall expire and be of no further force or effect
on the date (the "EXPIRATION DATE") five (5) years from the Original Issue
Date. Appropriate provisions shall be made in accordance with Section 3.2
below so that holder shall have the right to receive a similar warrant (the
"REPLACEMENT WARRANT") for the remainder of such term in the event of a
merger, consolidation, reorganization or similar transaction.
1. EXERCISE OF WARRANT.
1.1 EXERCISE AND VESTING. Subject to adjustment as
hereinafter provided, the rights represented by this Warrant are exercisable
on and after the Original Issue Date until the
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Expiration Date, at a price per share (the "EXERCISE PRICE") of the Common
Stock issuable hereunder (hereinafter, "WARRANT SHARES") of $ 4.08, subject to
adjustment as set forth in Section 3. The Exercise Price shall be payable in
cash, by certified or official bank check or by wire transfer as hereinafter
provided.
Upon surrender of this Warrant with a duly executed Notice of Exercise
in the form of Annex A hereto, together with payment of the Exercise Price for
the Warrant Shares purchased, at the Company's principal executive offices
presently located at One USi Plaza, Annapolis, MD 21401, or at such other
address as the Company shall have advised the holder in writing (the
"DESIGNATED OFFICE"), the holder shall be entitled to receive a certificate or
certificates for the Warrant Shares so purchased. The Company agrees that the
Warrant Shares shall be deemed to have been issued to the holder as of the
close of business on the date on which this Warrant shall have been
surrendered together with the Notice of Exercise and payment for such Warrant
Shares.
1.2 RESTRICTION ON SALE. Holder or its assigns shall not
sell Warrant Shares during the forty five (45) days following such exercise.
2. TRANSFER; ISSUANCE OF STOCK CERTIFICATES; RESTRICTIVE LEGENDS.
2.1 TRANSFER. Subject to compliance with the restrictions on
transfer set forth in this Section 2, each transfer of this Warrant and all
rights hereunder, in whole or in part, shall be registered on the books of the
Company to be maintained for such purpose, upon surrender of this Warrant at
the Designated Office, together with a written assignment of this Warrant in
the form of Annex B hereto, duly executed by the holder or its agent or
attorney. Upon such surrender and delivery, 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 shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, if any. A Warrant, if properly assigned in compliance with the
provisions hereof, may be exercised by the new holder for the purchase of
Warrant Shares without having a new Warrant issued. All Warrants issued upon
any assignment of Warrants shall be the valid obligations of the Company,
evidencing the same rights, and entitled to the same benefits as the Warrants
surrendered upon such registration of transfer or exchange.
2.2 STOCK CERTIFICATES. Certificates for the Warrant Shares
shall be delivered to the holder within a reasonable time after the rights
represented by this Warrant have been exercised pursuant to Section 1, and a
new Warrant representing the share, shares or fraction of a share of Common
Stock, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder within such time. The issuance of
certificates for Warrant Shares upon the exercise of this Warrant shall be
made without charge to the holder hereof including, without limitation, any
tax that may be payable in respect thereof; provided, however, that the
Company shall not be required to pay any income tax to which the holder hereof
may be subject in connection with the issuance of this Warrant or the Warrant
Shares.
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2.3 RESTRICTIVE LEGENDS. Except as otherwise provided in
this Section 2, each certificate for Warrant Shares initially issued upon the
exercise of this Warrant, and each certificate for Warrant Shares issued to
any subsequent transferee of any such certificate, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THE [SECURITY] [SHARES] REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NO TRANSFER OF THE
[SECURITY] [SHARES] REPRESENTED BY THIS CERTIFICATE SHALL BE VALID OR
EFFECTIVE UNLESS (A) SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (B) THE HOLDER
SHALL DELIVER TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH PROPOSED
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
Notwithstanding the foregoing, the legend requirements of this Section 2.3
shall terminate as to any particular Warrant or Warrant Share when (i) the
Company shall have received from the holder thereof an opinion of counsel that
such legend is not required in order to ensure compliance with the Securities
Act, or (ii) the Warrant Shares have been registered using an appropriate
filing under the Securities Act. Whenever the restrictions imposed by this
Section 2.3 shall terminate, the holder hereof or of Warrant Shares, as the
case may be, shall be entitled to receive from the Company without cost to
such holder a new Warrant or certificate for Warrant Shares of like tenor, as
the case may be, without such restrictive legend.
3. ADJUSTMENT OF NUMBER OF SHARES; EXERCISE PRICE; NATURE OF SECURITIES
ISSUABLE UPON EXERCISE OF WARRANTS.
3.1 EXERCISE PRICE; ADJUSTMENT OF NUMBER OF SHARES. The
Exercise Price set forth in Section 1 hereof and the number of shares
purchasable hereunder shall be subject to adjustment from time to time as
hereinafter provided.
3.2 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE. If any capital reorganization or reclassification of the capital
stock of the Company, or any consolidation or merger of the Company with
another entity, or the sale of all or substantially all of the Company's
assets to another person or entity (collectively referred to as a
"TRANSACTION") shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities, cash or assets with respect to
or in exchange for Common Stock, then, as a condition of such Transaction,
reasonable, lawful and adequate provisions shall be made whereby the holder of
this Warrant shall thereafter have the right to receive, upon the basis and
upon the terms and conditions specified in this Warrant, a Replacement Warrant
issued by the surviving company,
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acquiring company, reclassified company or other entity that accurately
reflects the nature of the Transaction. The Replacement Warrant shall entitle
holder to purchase such number, amount and like kind of shares of stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby as if such shares were outstanding immediately prior
to the Transaction, and in any such case appropriate provision shall be made
with respect to the rights and interest of the holders to the end that the
provisions hereof (including, without limitation, provisions for adjustments
of the Exercise Price and of the number of Warrant Shares purchasable and
receivable upon the exercise of this Warrant and the remaining term of this
Warrant) shall thereafter be applicable, as nearly as may be practicable, in
relation to any shares of stock or securities thereafter deliverable upon the
exercise hereof.
3.3 STOCK SPLITS, STOCK DIVIDENDS AND REVERSE STOCK SPLITS.
In case at any time the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, or shall declare and pay any
stock dividend with respect to its outstanding stock that has the effect of
increasing the number of outstanding shares of Common Stock, the Exercise
Price in effect immediately prior to such subdivision or stock dividend shall
be proportionately reduced and the number of Warrant Shares purchasable
pursuant to this Warrant immediately prior to such subdivision or stock
dividend shall be proportionately increased, and conversely, in case at any
time the Company shall combine its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced.
3.4 DISSOLUTION, LIQUIDATION OR WIND-UP. In case the Company
shall, at any time prior to the exercise of this Warrant, dissolve, liquidate
or wind up its affairs, the holder hereof shall be entitled, upon the exercise
of this Warrant, to receive, in lieu of the Warrant Shares which the holder
would have been entitled to receive, the same kind and amount of assets as
would have been issued, distributed or paid to such holder upon any such
dissolution, liquidation or winding up with respect to such Warrant Shares,
had such holder hereof been the holder of record of the Warrant Shares
receivable upon the exercise of this Warrant on the record date for the
determination of those persons entitled to receive any such liquidating
distribution.
3.5 ACCOUNTANT'S CERTIFICATE. In each case of an adjustment
in the Exercise Price, number of Warrant Shares or other stock, securities or
property receivable upon the exercise of this Warrant, the Company shall
compute, and upon the holder's request shall at the Company's expense cause
independent public accountants of recognized standing selected by the Company
and reasonably acceptable to the holder to certify such computation, such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of (i) the number of
shares of Common Stock of each class outstanding or deemed to be outstanding,
(ii) the adjusted Exercise Price and (iii) the number of Warrant Shares
issuable upon exercise of this Warrant. The Company will forthwith mail a copy
of each such certificate to the holder hereof. In the event that the holder
disputes such adjustment, the holder shall be entitled to select
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an additional firm of independent certified public accountants of national
standing and paid for by the holder to certify such adjustment and the Company
and the holder shall use their good faith best efforts to agree on such
adjustment based on the reports of the two accounting firms. In the event that
the Company and the holder are still unable to reach agreement as to such
adjustment, the Company and the holder agree to submit such determination to
binding arbitration pursuant to Section 11. Upon determination of such
adjustment, the Board of Directors shall forthwith make the adjustments
described therein.
3.6 DEFINITION OF COMMON STOCK. As used in this Section 3,
the term "COMMON STOCK" shall mean and include the Company's authorized common
stock of any class or classes and any securities convertible into or
exchangeable for such common stock.
4. EXTRAORDINARY EVENTS.
In the event that the Company at any time after the Original
Issue Date shall pay a special dividend or make any other distribution with
respect to its Common Stock (or any other shares of the capital stock of the
Company for which this Warrant becomes exercisable pursuant to Section 3
above) other than in the ordinary course of business in the form of cash or
other property (other than (a) a distribution to which the provisions of
Section 3.2 apply or (b) a stock dividend subject to the provisions of Section
3.3 above), at the election of the holder, either:
(i) The Exercise Price in effect immediately prior to the
record date with respect to such distribution or issuance (the
"ADJUSTMENT DATE") shall forthwith be adjusted effective on the
Adjustment Date to a price determined by multiplying such Exercise
Price by a fraction (x) the numerator of which shall be the average
closing price of the Company's Common Stock as publicly reported on
the primary exchange or automated inter-dealer quotation system on
which it is listed (the "EXCHANGE") on the next trading day following
the Adjustment Date (the "POST-EVENT MARKET PRICE"), and (y) the
denominator of which shall be the average closing price of the
Company's Common Stock as publicly reported on the Exchange over the
ten trading days preceding the Adjustment Date (the "PRE-EVENT MARKET
PRICE") and after each such adjustment of the Exercise Price, the
total number of shares then issuable upon exercise of the Warrant
shall be adjusted by multiplying such number of shares issuable upon
exercise of the Warrant by a fraction (x) the numerator of which shall
be the amount obtained by subtracting the Exercise Price in effect
immediately prior to the Adjustment Date from the Pre-Event Market
Price for the Company's Common Stock and (y) the denominator of which
shall be the amount obtained by subtracting the Exercise Price in
effect immediately following the Adjustment Date from the Post-Event
Market Price for the Company's Common Stock; or
(ii) The Company shall deliver to the holder hereof a
dilution fee (a "DILUTION FEE") payable in cash on the date of payment
of such dividend or other distribution equal to the number of shares
of Common Stock (or such other shares of stock) issuable upon
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exercise of this Warrant on such date multiplied by the amount of cash
and the fair value of any other property distributed with respect to
each share of Common Stock (or such other stock). The fair value of
any such other property shall mean the fair market value thereof on
the record date for such dividend, as determined by the Board of
Directors of the Company in good faith and supported, upon the request
of the holder, by an opinion of an investment banking firm or
appraisal firm of recognized national standing selected by the Company
and acceptable to the holder.
Notwithstanding the foregoing, in no event shall the Exercise Price be
increased or the number of Warrant Shares issuable upon exercise hereof be
reduced pursuant to the provisions of this Section 4.
5. REGISTRATION; EXCHANGE AND REPLACEMENT OF WARRANT; RESERVATION OF
SHARES.
The Company shall keep at the Designated Office a register in
which the Company shall provide for the registration, transfer and exchange of
this Warrant. The Company shall not at any time, except upon the dissolution,
liquidation or winding-up of the Company, close such register so as to result
in preventing or delaying the exercise or transfer of this Warrant.
The Company may deem and treat the person in whose name this
Warrant is registered as the holder and owner hereof for all purposes and
shall not be affected by any notice to the contrary, until presentation of
this Warrant for registration or transfer as provided in this Section 5.
Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor, in lieu of this Warrant without
requiring the posting of any bond or the giving of any security.
The Company shall at all times reserve and keep available out
of its authorized shares of Common Stock, solely for the purpose of issuance
upon the exercise of this Warrant, such number of shares of Common Stock as
shall be issuable upon the exercise hereof. The Company covenants and agrees
that, upon exercise of this Warrant and payment of the Exercise Price all
Warrant Shares issuable upon such exercise shall be duly and validly issued,
fully paid and non-assessable.
6. NOTICES.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered personally, or mailed by registered or certified mail, return
receipt requested. Notice may also be given by facsimile transmission
(effective when receipt is acknowledged by a writing other than a sending
machine generated notice of delivery) or by overnight delivery service
(effective the next business day):
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(a) If to the 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 the address set forth in Section 1
of this Warrant;
or at such other address as the holder or the Company may hereafter have
advised the other.
7. SUCCESSORS.
All the covenants, agreements, representations and warranties
contained in this Warrant shall bind the parties hereto and their respective
heirs, executors, administrators, distributees, successors, assigns and
transferees.
8. GOVERNING LAW.
This Warrant shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York (not including the
choice of law rules thereof) regardless of the jurisdiction of creation or
domicile of the Company or its successors or of the holder at any time hereof.
The exclusive jurisdiction for all actions and proceedings arising out of or
relating to this Agreement which are not subject to arbitration pursuant to
Section 11 shall be in any New York state or federal court thereof.
9. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS.
This Warrant sets forth the entire understanding of the parties
with respect to the transactions contemplated hereby. The failure of any party
to seek redress for the violation or to insist upon the strict performance of
any term of this Warrant shall not constitute a waiver of such term and such
party shall be entitled to enforce such term without regard to such
forbearance. This Warrant may be amended, and any breach of or compliance with
any covenant, agreement, warranty or representation may be waived, only if the
Company has obtained the written consent or written waiver of the holder, and
then such consent or waiver shall be effective only in the specific instance
and for the specific purpose for which given.
10. SEVERABILITY; HEADINGS.
If any term of this Warrant as applied to any person or to any
circumstance is prohibited, void, invalid or unenforceable in any
jurisdiction, such term shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or invalidity without in any way affecting any
other term of this Warrant or affecting the validity or enforceability of this
Warrant or of such provision in any other jurisdiction. The Section headings
in this Warrant have been inserted for purposes of convenience only and shall
have no substantive effect.
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11. ARBITRATION. In the event a dispute occurs with respect to any claim,
dispute or other matter arising out of or relating to this Warrant, the
parties hereto will promptly attempt to settle such dispute through
consultation and negotiation in good faith and in a spirit of mutual
cooperation. If agreement is reached concerning the resolution of such
dispute, then such agreement shall be final, conclusive and binding on the
parties hereto. If, on or before the tenth day after written notice of such
dispute is given by one party to the other parties, such dispute has not been
resolved by the agreement of all the parties, such dispute shall be settled by
an expedited arbitration proceeding conducted in accordance with the
then-current CPR Non-Administered Arbitration Rules and the Federal Rules of
Evidence in Washington, D.C. by a panel of three arbitrators who shall have
experience relating to the dispute or matter to be resolved. Each of the
Company and the holder shall select an arbitrator, and those two arbitrators
shall select a third arbitrator. The parties hereto shall provide such
arbitrators with such information as may be reasonably requested in connection
with the arbitration of such dispute and shall otherwise cooperate with each
other and such arbitrators in good faith and with the goal of resolving such
dispute as promptly as reasonably practicable. The arbitrators' decision and
award with respect to the dispute referred to shall be final and binding on
the parties hereto and may be entered in any court with jurisdiction, and the
parties hereto shall abide by such decision and award. The cost of the
arbitration proceeding and any proceeding in court to confirm or to vacate any
arbitration award, as applicable (including, without limitation, attorneys'
fees and costs), shall be borne by the unsuccessful party (if any) and shall
be awarded as part of the arbitrators' award; provided however, that if the
arbitrators do not find one party to be unsuccessful then the cost of the
arbitral proceeding shall be paid equally by the parties hereto.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed as of the date first written above.
USINTERNETWORKING, INC.
By: ________________________________
Name:
Title:
Accepted and agreed:
[ NAME OF COMPANY ]
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By: _______________________________
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ANNEX A
NOTICE OF EXERCISE
(TO BE EXECUTED UPON PARTIAL OR FULL
EXERCISE OF THE WITHIN WARRANT)
The undersigned hereby irrevocably elects to exercise the right
to purchase ___________ shares of Common Stock of USinternetworking, Inc.
covered by the Warrant according to the conditions hereof and herewith makes
payment of the Exercise Price of such shares in full in the amount of
$____________________.
By:________________________________
(Signature of Registered Holder)
Dated:_______________
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ANNEX B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all
of the rights of the undersigned under this Warrant, with respect to the
number of shares of Common Stock set forth below:
No. of Shares of
Name and Address of Assignee Common Stock
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and does hereby irrevocably constitute and appoint ________ _____________
attorney-in-fact to register such transfer onto the books of
USinternetworking, Inc. maintained for the purpose, with full power of
substitution in the premises.
Dated:___________________ Print Name:___________________
Signature:____________________
Witness:______________________
NOTICE: The signature on this assignment must correspond with the name
as written upon the face of this Warrant in every particular,
without alteration or enlargement or any change whatsoever.
