Exhibit 4.8
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH
RESPECT THERETO.
PREFERRED STOCK PURCHASE WARRANT
Warrant No. 1
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MPATH INTERACTIVE, INC.
Void after September 30, 2002
1. Issuance. This Warrant is issued to Lighthouse Capital Partners, L.P.
by Mpath Interactive, Inc., a Delaware corporation (hereinafter with its
successors called the "Company").
2. Purchase Price; Number of Shares. The registered holder of this
Warrant (the "Holder"), commencing on the date hereof, is entitled upon
surrender of this Warrant with the subscription form annexed hereto duly
executed, at the principal office of the Company, to purchase from the
Company:
(a) at a price per share (the "Lot A Purchase Price") of $4.14, 9,058 fully
paid and nonassessable shares of Series B Preferred Stock, $.0001 par
value, of the Company (the "Lot A Preferred Stock");
(b) at a price per share equal to the Lot A Purchase Price. 5,434 fully
paid and nonassessable shares of Series B Preferred Stock, $.0001 par
value, of the Company (the "Lot B Preferred Stock"); provided. however,
that the right to purchase shares under this paragraph (b) shall not be
exercisable until on or after the date on which the Company delivers to
Holder a Notice of Election to increase the lease line amount to $800,000
under that certain Master Equipment Lease Agreement and the related Lease
Line Schedule, each dated as of September 29, 1995, by and between the
Company and Holder (the "Master Lease"), as contemplated by the Master
Lease;
(c) at a price per share equal to the then current fair market value per
share of Series B Preferred Stock, as determined in good faith by the
Company's board of directors (the "Lot C Purchase Price"), that number of
shares of fully paid and nonassessable shares of Series B Preferred Stock,
$.0001 par value, of the Company (the "Lot C Preferred Stock") equal to (i)
$30,000 divided by (ii) Lot C Purchase Price; provided, however, that the
right to purchase shares under this paragraph (c) shall not be exercisable
until on or after the date on which the Company delivers to Holder a Notice
of Election to increase the lease line amount to $1,200,000 under the
Master Lease, as contemplated by the Master Lease;
(The Lot A Purchase Price and the Lot C Purchase Price are sometimes referred to
herein collectively, as the "Purchase Price" and the Lot A Preferred Stock, Lot
B Preferred Stock and Lot C Preferred Stock are sometimes referred to herein
collectively, as the "Preferred Stock.") Until such time as this Warrant is
exercised in full or
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expires, the Purchase Price and the securities issuable upon exercise of this
Warrant are subject to adjustment as hereinafter provided. The person or persons
on whose name or names any certificate representing shares of Preferred Stock is
issued hereunder shall be deemed to have become the holder of record of the
shares represented thereby as at the close of business on the date this Warrant
is exercised with respect to such shares, whether or not the transfer books of
the Company shall be closed.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in cash
or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, or (iii) by any combination of the foregoing.
4. Net Issue Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares of Preferred Stock
equal to the value of this Warrant or any portion hereof by the surrender of
this Warrant or such portion to the Company, with the net issue election notice
annexed hereto duly executed, at the principal office of the Company. Thereupon,
the Company shall issue to the Holder such number of fully paid and
nonassessable shares of Preferred Stock as is computed using the following
formula:
X= Y(A-B)
------
A
where: X = the number of shares of Preferred Stock to be issued to the
Holder pursuant to this Section 4.
Y = the number of shares of Preferred Stock covered by this Warrant
in respect of which the net issue election is made pursuant to
this Section 4.
A = the fair market value of one share of Preferred Stock, as
determined in good faith by the Board, as at the time the net
issue election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time the
net issue election is made pursuant to this Section 4.
Subject to Section 7 hereof, the exercise of this Warrant pursuant to this
Section 4 may be made contingent upon the closing of the Company's public
offering of Common Stock. The fair market value of a share of Preferred Stock or
Common Stock (issued upon conversion thereof) as of a particular date means: (a)
if conversion is effective as of the closing of the Company's public offering of
any securities pursuant to a registration statement under the Securities Act,
the "price to public" specified for such shares in the final prospectus for such
public offering, (b) if the Company's stock is publicly traded, the closing sale
price of the Company's stock for the trading day immediately preceding the date
of exercise, and (c) otherwise, the price as determined in good faith by, the
Board of Directors of the Company.
5. Partial Exercise. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which
this Warrant shall not have been exercised.
6. Fractional Shares. In no event shall any fractional share of
Preferred Stock be issued upon any exercise of this Warrant. If, upon exercise
of this Warrant as an entirety, the Holder would, except as provided in this
Section 6, be entitled to receive a fractional share of Preferred Stock, then
the Company shall issue the next higher number of full shares of Preferred
Stock, issuing a full share with respect to such fractional share.
7. Expiration Date; Automatic Exercise. This Warrant shall expire at the
close of business on September 30, 2002, and shall be void thereafter.
Notwithstanding the foregoing, this Warrant shall automatically be deemed to be
exercised in full pursuant to the provisions of Section 4 hereof, without any
further action on
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behalf of the Holder, immediately prior to the time this Warrant would otherwise
expire pursuant to the preceding sentence.
8. Reserved Shares; Valid Issuance. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Preferred Stock and Common Stock, $.0001
par value, of the Company (the "Common Stock", free from all preemptive or
similar rights therein, as will be sufficient to permit, respectively, the
exercise of this Warrant in full and the conversion into shares of Common
Stock of all shares of Preferred Stock receivable upon such exercise. The
Company further covenants that such shares as may be issued pursuant to such
exercise and/or conversion will, upon issuance, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof.
9. Stock Splits and Dividends. If after the date hereof the Company
shall subdivide the Preferred Stock, by split-up or otherwise, or combine the
Preferred Stock, or issue additional shares of Preferred Stock in payment of a
stock dividend on the Preferred Stock, the number of shares of Preferred Stock
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination, and the Purchase Price shall forthwith
be proportionately decreased in the case of a subdivision or stock dividend,
or proportionately increased in the case of a combination.
10. Mergers and Reclassifications. If after the date hereof the Company
shall enter into any Reorganization (as hereinafter defined), then, as a
condition of such Reorganization, lawful provisions shall be made, and duly
executed documents evidencing the same from the Company or its successor shall
be delivered to the Holder, so that the Holder shall thereafter have the right
to purchase, at a total price not to exceed that payable upon the exercise of
this Warrant in full, the kind and amount of shares of stock and other
securities and property receivable upon such Reorganization by a holder of the
number of shares of Preferred Stock which might have been purchased by the
Holder immediately prior to such Reorganization, and in any such case
appropriate provisions shall be made with respect to the rights and interest
of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the number
of shares issuable hereunder) shall thereafter be applicable in relation to
any shares of stock or other securities and property thereafter deliverable
upon exercise hereof. For the purposes of this Section 10, the term
"Reorganization" shall include without limitation any reclassification,
capital reorganization or change of the Preferred Stock )other than as a
result of a subdivision, combination or stock dividend provided for in Section
9 hereof), or any consolidation of the Company with, or merger of the Company
into, another corporation or other business organization (other than a merger
in which the Company is the surviving corporation and which does not result in
any reclassification or change of the outstanding Preferred Stock), or any
sale or conveyance to another corporation or other business organization of
all or substantially all of the assets of the Company.
11. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of the Company's chief financial officer setting forth the
Purchase Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment.
12. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company 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 or other distribution, or any
fight to subscribe for, purchase, sell or otherwise acquire or dispose of
any shares of stock of any class or any other securities or property, or
to receive any other right;
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving
the Company, or sale or conveyance of all or substantially all of its
assets; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
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then in each such event the Company will provide or cause to be provided to the
Holder a written notice thereof. Such notice shall be provided at least twenty
(20) business days prior to the date specified in such notice on which any such
action is to be taken.
13. Representations, Warranties and Covenants. This Warrant is issued
and delivered by the Company and accepted by each Holder on the basis of the
following representations, warranties and covenants made by the Company:
A. The Company has all necessary authority to issue, execute and
deliver this Warrant and to perform its obligations hereunder. This Warrant has
been duly authorized issued, executed and delivered by the Company and is the
valid and binding obligation of the Company, enforceable in accordance with its
terms.
B. The shares of Preferred Stock issuable upon the exercise of this
Warranty have been duly authorized and reserved for issuance by the Company and
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable.
C. The issuance, execution and delivery of this Warrant do not, and
the issuance of the shares of Preferred Stock upon the exercise of this Warrant
in accordance with the terms hereof will not, (i) violate or contravene the
Company's Amended and Restated Certificate of Incorporation or by-laws, or any
law, statute, regulation, role, judgment or order applicable to the Company,
(ii) violate, contravene or result in a breach or default under any contract,
agreement or instrument to which the Company is a party or by which the Company
or any of its assets are bound or (iii) require the consent or approval of or
the filing of any notice or registration with any person or entity.
D. As long as this Warrant is, or any shares of Preferred Stock
issued upon exercise of this Warrant or any shares of Common Stock issued upon
conversion of such shares of Preferred Stock are, issued and outstanding, the
Company will provide to the Holder the financial and other information described
in that certain Lease Line Schedule No. 01 to Master Equipment Lease Agreement
No. 116 between the Company and Lighthouse Capital Partners, L.P. dated as of
September 29, 1995.
E. The Company grants to the Holder the Registration Rights
contained in Section 1 of the Company's Amended and Restated Investors Rights
Agreement dated as of August 16, 1995 (the "Investors Rights Agreement"), so
that (i) the shares of Common Stock issuable upon conversion of the shares of
Preferred Stock issuable upon exercise of this Warrant shall be "Registrable
Securities," and (ii) the Holder shall be a "Holder", for all purposes of such
Investors Rights Agreement. Holder agrees to be bound by the terms of Section
1 of the Investors Rights Agreement.
14. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Holder
l5. Notices, Transfers, Etc.
A. Any notice or written communication required or permitted to be
given to the Holder may be given by certified mail or delivered to the Holder at
the address most recently provided by the Holder to the Company.
B. Subject to compliance with applicable federal and state
securities laws, this Warrant may be transferred by the Holder with respect to
any or all of the shares purchasable hereunder. Upon surrender of this Warrant
to the Company, together with the assignment notice annexed hereto duly
executed, for transfer of this Warrant as an entirety by the Holder, the Company
shall issue a new warrant of the same denomination to the assignee. Upon
surrender of this Warrant to the Company, together with the assignment hereof
properly endorsed, by the Holder for transfer with respect to a portion of the
shares of Preferred Stock purchasable hereunder, the
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Company shall issue a new warrant to the assignee, in such denomination as shall
be requested by the Holder hereof, and shall issue to such Holder a new warrant
covering the number of shares in respect of which this Warrant shall not have
been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and denomination
and deliver the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of an affidavit of the Holder or other
evidence reasonably satisfactory to the Company of the loss, theft or
destruction of such Warrant
16. No Impairment. The Company will not, by amendment of its Amended and
Restated Certificate of Incorporation of through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance of performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders.
17. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
California.
18. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
19. Business Days. If the last or appointed day for the taking of any
action required of the expiration of any rights granted herein shall be a
Saturday or Sunday or a legal holiday, in California, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
20. Qualifying Public Offering. If the Company shall effect a firm
commitment underwritten public offering of shares of Common Stock which results
in the conversion of the Preferred Stock into Common Stock pursuant to the
Company's Amended and Restated Certificate of Incorporation in effect
immediately prior to such offering, or if all of the Company's Preferred Stock
is converted into Common Stock pursuant to the Company's Amended and Restated
Certificate of Incorporation, then, effective upon such conversion, this Warrant
shall change from the right to purchase shares of Preferred Stock to the right
to purchase shares of Common Stock and the Holder shall thereupon have the right
to purchased, at a total price equal to that payable upon the exercise of this
Warrant in full, the number of shares of Common Stock which would have been
receivable by the Holder upon the exercise of this Warrant for shares of
Preferred Stock immediately prior to such conversion of such shares of Preferred
Stock into shares of Common Stock, and in such event appropriate provisions
shall be made with respect to the rights and interest of the Holder to the end
that the provisions hereof (including, without limitation, provisions for the
adjustment of the Purchase Price and of the number of shares purchasable upon
exercise of this Warrant) shall thereafter be applicable to any shares of Common
Stock deliverable upon the exercise hereof.
21. Value. The Company and the Holder agree that the value of this
Warrant on the date of grant is $100.
Dated: 9/29, 1995 MPATH INTERACTIVE, INC.
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[CORPORATE SEAL] By: Xxxx Xxxxxxxxx
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Title: President and CEO
-----------------
Attest: Xxxxxxx X. Xxxx
---------------
Assistant Secretary
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Assignment
For value received _______________________________________________ hereby
sells, assigns and transfers unto ______________________________________________
________________________________________________________________________________
[Please print or typewrite name and address of Assignee]
________________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint _________
__________________________________ its attorney to transfer the within Warrant
on the books of the within named Company with full power of substitution on the
premises.
Dated:_______________________
_____________________________________________
In the Presence of:
_____________________________
Subscription
To:________________________________________ Date:________________________
The undersigned hereby subscribes for ______________ shares of Preferred
Stock covered by this Warrant. The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below:
________________________________________________
Signature
________________________________________________
Name for Registration
________________________________________________
Mailing Address
Net Issue Election Notice
To:__________________________________________________ Date:__________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase _____________ shares of Preferred Stock pursuant to this Warrant. The
certificate(s) for such shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below:
________________________________________________
Signature
________________________________________________
Name for Registration
________________________________________________
Mailing Address
