Exhibit 4.10
NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
QUALIFIED UNDER THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION (THE
"LAW"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED UPON
EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER
DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND QUALIFICATION UNDER THE LAW RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY (AS THAT TERM IS DEFINED BELOW) AND ITS COUNSEL,
THAT SAID REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT AND LAW,
RESPECTIVELY.
XXXXXXXX.XXX, INC.
March 14, 2000 4,785,000 Shares
of Common Stock
Warrant for Common Stock
This certifies that GE Capital Equity Investments, Inc., whose
address is 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000 ("HOLDER") is entitled to
subscribe for and purchase up to four million seven hundred eighty five thousand
(4,785,000) shares of fully paid and nonassessable Common Stock, $0.001 par
value per share ("COMMON STOCK"), of XxxxxXxx.xxx, Inc., a Delaware corporation
(the "COMPANY"), subject to the terms and conditions herewith set forth. The
purchase price of each such share shall be the amount set forth in Section 1.5
herein. Except as set forth in Sections 6.1 and 9, this Warrant shall not be
assignable, and shall only be exercisable, by Holder.
1. EXERCISE; PAYMENT
1.1. EXERCISABILITY. This Warrant, and the right to purchase vested
Common Stock hereunder, shall be exercisable, at any time and from time to time,
commencing on the date hereof and terminating at 5:00 P.M., New York local time
on the sixth anniversary of the Launch Date (as defined in the Strategic
Alliance Agreement dated as of March 14, 2000 by and between General
Electric Capital Corporation and the Company (the "AGREEMENT")).
1.2. PAYMENT. The purchase rights under this Warrant may be exercised
by Holder, in whole or in part, by the surrender of this Warrant at the
principal office of the Company located at 000 Xxx Xxxx Xxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxx Xxxx 00000, and by the payment to the Company, by certified,
cashier's or other check acceptable to the Company, of an amount equal to the
aggregate Warrant Price of the shares being purchased.
1.3. NET ISSUE EXERCISE.
(a) In lieu of exercising this Warrant pursuant to Section 1.2,
Holder may elect to receive shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company together with notice of such election, in which event the
Company shall issue to Holder a number of shares of the Company's Common Stock
computed using the following formula:
X = Y (A-B)
-------
A
Where:
X = the number of shares of Common Stock to be issued to
Holder
Y = the number of shares of Common Stock purchasable under
this Warrant (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); and
B = Warrant Price (as adjusted to the date of such
calculation).
(b) For purposes of this Section 1.3, the "fair market value" of
one share of the Company's Common Stock shall mean:
(i) The average of the closing bid and asked prices of the
Common Stock in the over-the-counter market or the closing sale price
quoted on any exchange on which the Common Stock is listed as published
in THE WALL STREET JOURNAL for the ten (10) trading days prior to the
date of determination of fair market value;
(ii) If the Common Stock is not traded in the
over-the-counter market or on an exchange, fair market value of the
Common Stock per share shall be the price per share which the Company
could obtain from a willing buyer for shares sold by the Company from
authorized but unissued shares as determined by the Company's Board of
Directors.
1.4. STOCK CERTIFICATES. In the event of any exercise of the rights to
acquire Common Stock granted under this Warrant, certificates for the shares of
Common Stock so purchased shall be delivered to Holder within a reasonable time
and, unless this Warrant has been fully exercised or has expired, a new Warrant
representing the shares with respect to which this Warrant shall not have been
exercised shall also be issued to Holder within such time.
1.5. WARRANT PRICE. The purchase price for the shares of Common Stock
to be issued upon exercise of this Warrant shall be $1.00 per share, subject to
adjustment as provided in Section 4 herein (the "WARRANT PRICE").
1.6. VESTING SCHEDULE. Subject to the terms and conditions of the
Agreement, this Warrant shall vest as set forth on SCHEDULE A hereto.
2. STOCK FULLY PAID; RESERVATION OF SHARES
The Company covenants and agrees that all securities which may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof (excluding taxes based on the
income of Holder). The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved for issuance a sufficient
number of
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shares of its Common Stock or other securities as would be required upon the
full exercise of the rights represented by this Warrant.
3. ADJUSTMENT
The kind of securities purchasable upon the exercise of this
Warrant, the number of shares under this Warrant and the Warrant Price shall be
subject to adjustment from time to time upon the happening of certain events, as
follows:
3.1. RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of: (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant; (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification, change or exchange of outstanding securities issuable upon
exercise of this Warrant); or (iii) any sale or transfer to another corporation
of all, or substantially all, of the property of the Company, then, and in each
such event, the Company or such successor or purchasing corporation, as the case
may be, shall execute a new Warrant which will provide that Holder shall have
the right to exercise such new Warrant and purchase upon such exercise, in lieu
of each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind of securities, money and property receivable upon such
reclassification, change, consolidation, merger, sale or transfer by a holder of
Common Stock issuable upon exercise of this Warrant had this Warrant been
considered exercised immediately prior to such reclassification, change,
consolidation, merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Section 3 and the provisions of this Section 3 and
the provisions of this Section 3.1 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
3.2. SUBDIVISIONS OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexercised, in whole or in part, (i)
shall divide its Common Stock, the Warrant Price shall be proportionately
reduced and the number of shares under this Warrant shall be proportionately
increased or (ii) shall combine shares of its Common Stock, the Warrant Price
shall be proportionately increased and the number of shares under this Warrant
shall be proportionately reduced.
3.3. STOCK DIVIDENDS. If the Company, at any time while this Warrant is
outstanding and unexpired, shall pay a dividend payable in, or make any other
distribution to shareholders of, its capital stock (except any distribution
described in Sections 3.1 and 3.2 hereof), then and in each case, this Warrant
shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of the security receivable upon exercise of this Warrant on
the date hereof and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by the provisions of this
Section 3.
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3.4. TIME OF ADJUSTMENTS. All adjustments, unless otherwise specified
herein, shall be effective as of the earlier of:
3.4.1. the date of issuance of the security causing the
adjustment;
3.4.2. the effective date of a division or combination of shares;
3.4.3. the record date of any action of holders of the Company's
capital stock of any class taken for the purpose of dividing or combining shares
or entitling shareholders to receive a distribution or dividends payable in the
Company's capital stock.
3.5. NOTICE OF ADJUSTMENTS. In each case of an adjustment, the Company,
at its expense, shall cause the Chief Financial Officer (or other such similar
officer) of the Company to compute such adjustments and prepare a certificate
setting forth such adjustments and showing in detail the facts upon which such
adjustment is based. The Company shall promptly mail a copy of each such
certificate to Holder pursuant to Section 13 hereof.
4. FRACTIONAL SHARES
No fractional share of Common Stock will be issued in connection
with any exercise hereof, but in lieu of a fractional share upon complete
exercise hereof, Holder may purchase a whole share at the then effective Warrant
Price.
5. SHAREHOLDER RIGHTS
Holder shall not, solely by virtue hereof, be entitled to any
rights of a shareholder of the Company. Holder shall have all rights of a
shareholder with respect to securities purchased upon exercise hereof at the
time the exercise price for such securities is delivered pursuant to Section l
hereof and this Warrant is surrendered.
6. RESTRICTIONS ON TRANSFER
6.1. TRANSFER OF WARRANT. This Warrant shall only be transferable with
respect to such portion of the Common Stock that has vested and is immediately
exercisable pursuant to Section 1.6 above and shall not otherwise be
transferable by Holder except pursuant to prior written consent of the Company,
which consent shall not be unreasonably withheld or delayed, and provided that
such transferee executes a written agreement to be bound by the provisions of
this Warrant.
6.2. SECURITIES LAWS RESTRICTIONS. Holder, by acceptance hereof, agrees
that, absent an effective registration statement under the Act covering the
disposition of Common Stock issued or issuable upon exercise hereof, Holder will
not sell or transfer any or all of such Common Stock, without first providing
the Company with an opinion of counsel reasonably acceptable to the Company and
its counsel to the effect that such sale or transfer will be exempt from the
registration requirements of the Act, and Holder consents to the Company making
a notation on its records in order to implement such restriction on
transferability; provided that no such opinion of counsel shall be required with
respect to a transfer by Holder to an affiliate of Holder.
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7. LOSS OR MUTILATION
Upon receipt by the Company of evidence satisfactory to it of the
ownership of, and the loss, theft, destruction or mutilation of, this Warrant
and (in the case of loss, theft or destruction) of indemnity satisfactory to it,
and (in the case of mutilation) upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant.
8. GOVERNING LAW
The internal laws of the State of New York (irrespective of its
conflict of laws principles) shall govern the validity of this Warrant, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
9. BINDING UPON SUCCESSORS AND ASSIGNS
Subject to, and unless otherwise provided in, this Warrant, each
and all of the covenants, terms, provisions, and agreements contained herein
shall be binding upon, and inure to the benefit of the permitted successors,
executors, heirs, representatives, administrators and assigns of the parties
hereto. Except as otherwise set forth in Section 6, holder shall not assign this
Warrant or any rights or obligations hereunder without the prior written consent
of the Company, which consent shall not be unreasonably withheld. For purposes
of this Section 9, the sale of all or substantially all of Holder's assets or
capital stock shall constitute an assignment.
10. SEVERABILITY
If any provision of this Warrant, or the application hereof, shall
for any reason and to any extent, be invalid or unenforceable, the remainder of
this Warrant and application of such provisions to other persons or
circumstances shall be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provisions of this Warrant with valid or enforceable provisions
which will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provisions.
11. AMENDMENT
This Warrant may be amended upon the written consent of the
Company and Holder.
12. NO WAIVER
The failure of any party to enforce any of the provisions hereof
shall not be construed to be a waiver of the right of such party thereafter to
enforce such provisions.
13. NOTICES
Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Warrant, each such communication
shall be in writing and shall be
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effective only if it is delivered by personal service or mailed, United States
certified mail, postage prepaid, return receipt requested, addressed as follows:
Company: Address set forth in Section 1 hereof
Attn: Chief Executive Officer
Holder: Address as set forth in Section 1 hereof
Attn: Account Manager - TradeOut
Such communications shall be effective when they are received by the addresses
thereof; but if sent by certified mail in the manner set forth above, they shall
be effective five (5) days after being deposited in the United States mail. Any
party may change its address for such communications by giving notice thereof to
the other party in conformity with this Section.
14. CONSTRUCTION OF AGREEMENT
A reference in this Warrant to any Section shall include a
reference to every Section the number of which begins with the number of the
Section to which reference is specifically made. The titles and headings herein
are for reference purposes only and shall not in any manner limit the
construction of this Warrant which shall be considered as a whole.
15. NO ENDORSEMENT
Holder understands that no federal or state securities
administrator has made any finding or determination relating to the fairness of
investment in the Company or purchase of the Common Stock hereunder and that no
federal or state securities administrator has recommended or endorsed the
offering of securities by the Company hereunder.
16. PRONOUNS
All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person, persons, entity or entities may require.
17. FURTHER ASSISTANCE
Each party agrees to cooperate fully with the other parties and to
execute such further instruments, documents and agreements and to give such
further written assurances, as may be reasonably requested by any other party to
better evidence and reflect the transactions described herein and contemplated
hereby, and to carry into effect the intents and purposes of this Warrant.
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XxxxxXxx.xxx, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Title: CEO and President
ACCEPTED THIS 14 DAY OF MARCH 2000
GE Capital Equity Investments, Inc.
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP
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FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO
____________________
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase thereunder,
______ shares of Common Stock of XxxxxXxx.xxx, Inc., a Delaware corporation, and
/_/ herewith makes payment of $_____ therefor; or
/_/ exercises this warrant pursuant to the Net Issue Exercise
provisions as provided for in Section 1.3 of this Warrant.
The undersigned requests that the certificates for such shares to
be issued in the name of, and delivered to ___________, whose address is
___________.
Dated:
____________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
____________________________________________
(Address)
Tax Identification Number:
___________________
SCHEDULE A
SCHEDULE OF VESTING OF WARRANT
