EX10(g)(2)
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER ANY FEDERAL OR STATE SECURITIES LAWS. THIS
WARRANT HAS BEEN ISSUED UNDER EXEMPTIONS THAT DEPEND, IN PART, ON THE INTENT OF
THE HOLDER HEREOF NOT TO SELL OR TRANSFER THIS WARRANT OR SUCH SHARES IN ANY
MANNER NOT PERMITTED BY SUCH LAWS. THIS WARRANT AND SUCH SHARES THEREFORE MAY
NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
HEREIN.
INTER ACT ELECTRONIC MARKETING, INC.
COMMON STOCK PURCHASE WARRANT
No. SSC-0 _______ Shares
FOR VALUE RECEIVED, InteroAct Electronic Marketing, Inc., a North Carolina
corporation (the "Company"), hereby grants to ____________________, or his
registered assigns, the right to purchase_____________________________________
(________) shares at a price per share equal to the Exercise Price, as defined
in Section 2 below, (such number of shares and Exercise Price being subject to
adjustment as provided hereinafter) of the validly authorized and issued, fully
paid and nonassessable shares of common stock of the Company, no par value per
share (the "Common Stock"), upon compliance with and subject to the following
terms and conditions:
1. Exercise of Warrant. This Warrant may be exercised in whole at any time,
-------------------
or in part from time to time, on or before the expiration date set forth in
Section 3 below and subject to Section 2 below by surrendering this Warrant, or
the applicable portion hereof, with a duly executed subscription form
substantially in the form attached hereto, at the offices of the Company in
Charlotte, North Carolina, and by paying in full the Exercise Price, in
immediately available funds or as otherwise hereinafter provided, for the number
of shares of Common Stock as to which this Warrant or applicable portion hereof
is exercised. No fractional shares shall be issued upon the exercise of this
Warrant and, instead, any fractional shares created by exercise hereunder shall
be purchased by the Company at the rate of the Exercise Price per share then in
effect.
2. Exercise Price. The exercise price per share of this Warrant (the
--------------
"Exercise Price") shall be equal to the exercise price of warrants to purchase
Common Stock issued by the Company in connection with the next equity or debt
offering in excess of $1,000,000. Accordingly, the Warrant may not be exercised
unless and until warrants have been issued in such equity or debt offering and
the Exercise Price is determined. If the Exercise Price has not been determined
on or before December 31, 2005, the Exercise Price will be at the price at which
the latest warrant issued by the Company prior to the date of this Warrant was
exercisable, as such price may be adjusted from time to time, which price shall
become the Exercise Price.
3. Expiration of Warrant. This Warrant shall expire and all rights
---------------------
hereunder shall cease on the date which is ten years from the date hereof.
4. Adjustment. The number of shares of Common Stock for which this Warrant
----------
may be exercised and the Exercise Price per share shall be adjusted in amount
and number in accordance with the following:
(a) If the Company shall declare and pay on shares of Common Stock a
dividend payable in shares of Common Stock or shall split the then
outstanding shares of Common Stock into a greater number of shares, the
number of shares of Common Stock for which this Warrant may be exercised,
as in effect at the time of taking of a record for such dividend or at the
time of such stock split, shall be proportionately increased and the
Exercise Price per share shall be proportionately decreased. Conversely, if
at any time the Company shall contract or reduce the number of outstanding
shares of Common Stock by combining such shares into a smaller number of
shares, the number of shares of Common Stock for which this Warrant may be
exercised at the time of such action shall be proportionately decreased and
the Exercise Price per share shall be proportionately increased.
(b) If at any time the Company shall initiate any transaction or be a
party to any transaction (including, without limitation, a merger,
consolidation, share exchange, sale, lease or other disposition of all or
substantially all of the Company's assets, charter amendment,
recapitalization or reclassification of the Common Stock or a "Stock Sale,"
as defined below) in connection with which the previously outstanding
Common Stock shall be changed into or exchanged for different securities of
the Company or capital stock or other securities of another corporation or
interests in a non-corporate entity or other property (including cash) or
any combination of the foregoing (each such transaction being herein called
a "Transaction"), then, as a condition of the consummation of the
Transaction, lawful, enforceable and adequate provision shall be made so
that the holder of this Warrant shall be entitled to receive upon exercise
of the Warrant at any time on or after the consummation of the Transaction,
in lieu of the shares of Common Stock issuable upon such exercise prior to
such consummation, the securities or other property (including cash) to
which the holder would have been entitled upon consummation of the
Transaction if the holder had exercised the Warrant immediately prior
thereto (subject to adjustments from and after the consummation date as
nearly equivalent as possible to the adjustments provided for in this
Section 4). If a purchase, tender or exchange offer is made to and accepted
by the holders of more than 50% of the outstanding Common Stock (a "Stock
Sale"), and if the holder of the Warrant so designates in a written notice
given to the Company, the holder shall be entitled to receive upon the
exercise of the Warrant at any time on or after the consummation of the
Stock Sale in lieu of the shares of Common Stock issuable upon exercise
prior to the consummation of the Stock Sale, the securities or other
property to which the holder would have been entitled if the holder had
exercised this Warrant prior to the expiration of such purchase, tender or
exchange offer and had accepted such offer (subject to adjustments from and
after the consummation of such purchase, tender or exchange offer as nearly
equivalent as possible to the adjustments provided for in this Section 4).
The Company will not effect any Transaction unless prior to the
consummation thereof each
corporation or entity (other than the Company) which may be required to
deliver any securities or other property upon the exercise of the Warrant
as provided herein shall assume, by written instrument delivered to the
holder, the obligation to deliver to the holder such securities or other
property as in accordance with the foregoing provisions the holder may be
entitled to receive. The foregoing provisions of this Section 4(d) shall
similarly apply to successive Transactions.
5. Notice of Adjustments. Within five (5) days after any adjustment
---------------------
pursuant to Section 4 above, the Company shall give written notice thereof to
the registered holder. Such notice shall state the Exercise Price as adjusted
and the increased or decreased number of shares purchasable upon the exercise of
this Warrant, setting forth in detail the method of calculation.
6. Partial Exercise of Warrant. In the event of any partial exercise of
---------------------------
this Warrant, the Company shall return to the registered holder this Warrant,
which shall have noted thereon the date of partial exercise and the number of
shares of Common Stock issued upon the partial exercise thereof.
7. Reservation of Shares. The Company shall at all times reserve and keep
---------------------
available a number of its authorized but unissued shares of its Common Stock
sufficient to permit the exercise in full of this Warrant.
8. Sale of Warrant or Shares. Neither this Warrant nor the shares of Common
-------------------------
Stock issuable upon exercise hereof have been registered under the Securities
Act of 1933, as amended, or under the securities laws of any state. Neither this
Warrant nor such shares, when issued, may be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement for this
Warrant, or the shares of Common Stock, as the case may be, under the Securities
Act of 1933, as amended, and such registration or qualification as may be
necessary under the securities laws of any state, or an opinion of counsel
satisfactory to the Company that such registration or qualification is not
required.
9. Shareholders' Agreement. The holder understands and agrees that the
-----------------------
shares of Common Stock issuable upon exercise of this Warrant shall also be
subject to the restrictions on transfer and other provisions of the
shareholders' agreement, if any, that may be in effect among the Company and all
its shareholders as of the date of any exercise of this Warrant. As a condition
to the exercise of this Warrant, the holder agrees to become a party to any such
shareholders' agreement by executing a joinder agreement or other appropriate
document. In the event that the Shareholders' Agreement dated as of April 16,
1993, as amended by Amendment No. 1 thereto dated as of June 17, 1994, has
terminated as a result of a public offering of capital stock of the Company
prior to the exercise of this Warrant, the holder nevertheless agrees to be
bound by the lock-up agreement contained in Section 23 thereof or any similar
lock-up agreement then in effect with respect to the Company's shareholders.
10. Legends. The certificate or certificates evidencing all or any of the
-------
shares of Common Stock issued upon exercise of this Warrant shall bear the
following legend:
"The Shares evidenced by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of any
state. The
shares may not be sold, transferred, pledged or hypothecated in the absence
of an effective registration statement under the Securities Act of 1933, as
amended, and such registration or qualification as may be necessary under
the securities laws of any state, or any opinion of counsel satisfactory to
the Company that such registration or qualification is not required."
Such certificate or certificates shall also bear any legend required by the
Shareholders' Agreement.
11. Successors and Assigns. The terms of this Warrant shall be binding upon
----------------------
and shall inure to the benefit of any successors or assigns of the Company and
of the holder or holders hereof and of the Common Stock issued or issuable upon
the exercise hereof.
12. Transfer of Warrant. This Warrant shall be registered on the books of
-------------------
the Company, which shall be kept by it at its principal office for that purpose
and shall be transferable only on said books by the registered holder hereof in
person or by such holder's duly authorized attorney upon surrender of this
Warrant properly endorsed, and only in compliance with the foregoing provisions
of this Warrant. Except as otherwise provided herein, and subject to applicable
securities laws, this Warrant and all rights hereunder are transferable in whole
or in part by the registered holder hereof in person or by the registered
holder's duly authorized attorney on the books of the company upon surrender of
this Warrant, or the applicable portion hereof, with a transfer form
substantially in the form attached hereto duly executed, at the offices of the
Company in Charlotte, North Carolina. The Company may deem and treat the
registered holder of this Warrant at any time as the absolute owner hereof for
all purposes and shall not be affected by any notices to the contrary.
13. Notices. Notices under this Warrant shall be in writing and shall be
-------
deemed to have been duly given (i) when personally delivered, (ii) when
forwarded by Federal Express, Airborne, or another private carrier which
maintains records showing delivery information, (iii) when sent via facsimile
but only if a written or facsimile acknowledgement of receipt is received by the
sending party, or (iv) when place in the United States Mail and forwarded by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the party to whom such notice is being given and, with respect to
the Company, addressed to the Company's principal office, and with respect to
the registered holder of the Warrant, addressed to the address of such holder as
maintained on the records of the Company, or to such other address as may by
furnished in writing to the parties.
14. Governing Law. This Warrant shall be governed in accordance with the
-------------
laws of the State of North Carolina without taking into account conflict of law
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued and
executed in its corporate name by its authorized officer and its corporate seal
to be affixed hereto and attested by its Secretary or Assistant Secretary.
DATED: August 25, 2000 INTER ACT ELECTRONIC MARKETING, INC.
By: __________________________________
Title: __________________________________
ATTEST:
------------------------
(Corporate Seal)
Exercise Form for
Common Stock Purchase Warrant
INTER ACT ELECTRONIC MARKETING, INC.
The undersigned hereby irrevocably subscribes for the shares of Common
Stock of Inter.Act Electronic Marketing, Inc. indicated below, upon the terms
and conditions of the attached Warrant.
No. of Shares:
-----------
Exercise Price per share: $
----------
Subscriber's Name and Address:
(Please print) --------------------------------------------
--------------------------------------------
--------------------------------------------
Subscriber's Telephone Number: ( )
--------------------------------------------
Subscriber's Signature:
(if individual) --------------------------------------------
Subscriber's Signature:
(if entity) --------------------------------------------
(Name of Entity)
By:
-----------------------------------------
(Signature of Authorized Person)
--------------------------------------------
(Title of Authorized Person)
Transfer Form for
Common Stock Purchase Warrant
INTER ACT ELECTRONIC MARKETING, INC.
The undersigned registered holder of the attached Warrant hereby
irrevocable transfers the following portion of the Warrant to purchase shares of
Common Stock of Inter.Act Electronic Marketing, Inc., which transfer is subject
to the terms and conditions described in the Warrant.
Date of Transfer:
--------------------------------------
Number of Shares Exercisable under
Warrant as of Date of Transfer:
--------------------------------------
Portion of Warrant Transferred
Expressed as fraction or percentage:
--------------------------------------
Expressed as number of shares:
--------------------------------------
Transferee's Name and Address:
(Please Print) --------------------------------------
--------------------------------------
--------------------------------------
Transferee's Telephone Number: ( )
--------------------------------------
Transferor's Signature:
(if individual) --------------------------------------
Transferor's Signature:
(if entity) --------------------------------------
(Name of Entity)
By:
-----------------------------------
(Signature of Authorized Person)
--------------------------------------
(Title of Authorized Person)