EXHIBIT 4.9
PREFERRED STOCK WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement"), dated as of March 20, 1996,
is made and entered into between ▇▇▇ ▇▇▇ Roo, Inc., a Delaware corporation (the
"Company"), and ___________________________________________________ (the
"Warrantholder").
The Company hereby issues and sells to the Warrantholder a Stock
Purchase Warrant as hereinafter described (the "Warrant") to purchase up to an
aggregate of _____________ (subject to adjustment pursuant to Section 7 hereof)
shares of 5% Convertible Preferred Stock of the Company (the "Shares").
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrant and the respective rights and obligations
thereunder, the Company and the Warrantholder hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF WARRANT.
1.1 REGISTRATION. The Warrant shall be numbered and shall be
------------
registered on the books of the Company when issued.
1.2 TRANSFER. Subject to Section 10 hereof, the Warrant shall be
--------
transferable on the books of the Company only upon delivery thereof duly
endorsed by the Warrantholder or by its duly authorized attorney or
representative, accompanied by proper evidence of succession, assignment or
authority to transfer and compliance with securities laws. Upon any registration
of transfer, the Company shall execute and deliver a new Warrant to the person
entitled thereto. The Warrant may be divided or combined, upon request to the
Company by the Warrantholder, into a certificate or certificates representing
the right to purchase the same aggregate number of Shares. Unless the context
indicates otherwise, the term "Warrantholder" shall include any transferee or
transferees of the Warrants pursuant to this Subsection 1.2, and the term
"Warrant" shall include any and all warrants outstanding pursuant to this
Agreement, including those evidenced by a certificate or certificates issued
upon division, exchange, substitution or transfer pursuant to this Agreement.
1.3 FORM OF WARRANT. The text of the Warrant and of the form of
---------------
election to purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The price per Share and the number of Shares issuable upon
exercise of the Warrant are subject to adjustment upon the occurrence of certain
events, all as hereinafter provided. The Warrant shall be executed on behalf of
the Company by its President, Vice President or other authorized officer.
1
A Warrant bearing the signature of an individual who was at any time
the proper officer of the Company shall bind the Company, notwithstanding that
such individual shall have ceased to hold such office prior to the delivery of
such Warrant.
The Warrant shall be dated as of the date of signature thereof by the
Company either upon initial issuance or upon division, exchange, substitution or
transfer.
1.4 LEGEND ON WARRANTS AND SHARES. Each Warrant certificate and
-----------------------------
certificate for Shares initially issued upon exercise of this Warrant shall bear
the following legend:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") and
neither the securities nor any interest therein may be sold, exchanged,
hypothecated, transferred or otherwise disposed of in the absence of
registration or an exemption therefrom under the Act."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act of the securities represented thereby) shall also bear the above
legend unless, in the opinion of the Company's counsel, the securities
represented thereby need no longer be subject to such restrictions.
SECTION 2. TERM OF WARRANTS; EXERCISE OF WARRANTS.
2.1 EXERCISE OF WARRANTS. Subject to the terms of this Agreement,
--------------------
the Warrantholder shall have the right, at any time during the five-year period
ending at 5:00 P.M., New York time, on the fifth anniversary of the date hereof
(the "Termination Date"), to purchase from the Company up to the number of fully
paid and nonassessable Shares which the Warrantholder may at the time be
entitled to purchase pursuant to this Agreement, upon surrender to the Company,
at its principal office, of the certificate evidencing the Warrant to be
exercised, together with the purchase form annexed thereto duly filled in and
signed, and upon payment to the Company of the Warrant Price (as defined in and
determined in accordance with the provisions of Sections 6 and 7 hereof), for
the number of Shares in respect of which such Warrant is then exercised.
Payment of the aggregate Warrant Price shall be made in cash or by certified or
cashier's check or by wire transfer of funds or by surrender of Warrants for
cashless exercise as provided in Section 6.
Upon such surrender of the Warrant and payment of the Warrant Price,
the Company shall issue and cause to be delivered with all reasonable dispatch
to or upon the written order of the
2
Warrantholder and in such name or names as the Warrantholder may designate, a
certificate or certificates for the number of full Shares so purchased upon the
exercise of the Warrant, together with cash, as provided in Section 8 hereof, in
respect of any fractional Shares otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
record of such Shares as of the date of surrender of the Warrant and payment of
the Warrant Price, as aforesaid, notwithstanding that the certificates
representing such Shares shall not actually have been delivered or that the
stock transfer books of the Company shall then be closed. The Warrant shall be
exercisable, at the election of the Warrantholder, either in full or from time
to time in part and, in the event that a certificate evidencing the Warrant is
exercised in respect of less than all of the Shares specified therein at any
time prior to the Termination Date, a new certificate evidencing the remaining
portion of the Warrant will be issued by the Company.
SECTION 3. PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any, attributable
to the initial issuance of the Shares to the Warrantholder; provided, however,
-------- -------
that the Company shall not be required to pay any tax or taxes which may be
payable in respect of any secondary transfer of the Warrant or the Shares.
SECTION 4. MUTILATED OR MISSING WARRANTS.
In case the certificate or certificates evidencing the Warrant shall
be mutilated, lost, stolen or destroyed, the Company shall, at the request of
the Warrantholder, issue and deliver in exchange and substitution for and upon
cancellation of the mutilated certificate or certificates, or in lieu of and in
substitution for the certificate or certificates lost, stolen or destroyed, a
new Warrant certificate or certificates of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence satisfactory to
the Company of such loss, theft or destruction of such Warrant and of bond of
indemnity, if requested, also satisfactory in form and amount at the applicant's
cost. Applicants for such substitute Warrant certificate shall also comply with
such other reasonable regulations and pay such other reasonable charges as the
Company may prescribe.
SECTION 5. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep
reserved so long as the Warrant remains outstanding, out of its authorized 5%
Convertible Preferred Stock, such number of shares as shall be subject to
purchase under the Warrant;
3
subject, however, to the limitation set forth in Section 4(m) of the Certificate
of Designations with respect to such Stock.
SECTION 6. WARRANT PRICE; METHODS OF EXERCISE.
6.1 PRICE. The price per Share (the "Warrant Price") at which Shares
-----
of 5% Convertible Preferred Stock shall be purchasable upon the exercise of the
Warrant shall be $25, subject to further adjustment pursuant to Section 7
hereof.
6.2 CASHLESS EXERCISE. In addition to the exercise of all or a
-----------------
portion of this Warrant by the payment of the exercise price as provided in
Section 2.1, and in lieu of any such payment, the Warrantholder shall have the
right at any time and from time to time to exercise the Warrant in full or in
part by surrendering the Warrant certificate in exchange for that number of
Shares which, valued at Current Market Value, have a value equal to the total
Current Market Value of the Shares as to which this Warrant is then being
exercised less the total Warrant Price payable for such Shares. For the purposes
of this paragraph, Current Market Value of a Share shall be the product of (i)
the number of shares of Common Stock into which one Share is then convertible,
and (ii) the price of the Common Stock which has been used in the calculation of
the Conversion Price pursuant to Section 4(d) of the Certificate of
Designations, but without discount.
6.3 SIMULTANEOUS EXERCISE AND CONVERSION. Upon exercise of this
------------------------------------
Warrant, the Company shall simultaneously convert the Shares issuable upon such
exercise into Common Stock pursuant to the Certificate of Designations. The
Warrantholder shall be deemed to be a holder of record of the Common Stock or
other securities issuable upon conversion of the Shares at the close of business
on the day such notice is given, and the Company shall immediately issue and
deliver certificates representing such Common Stock or other securities in the
manner and within the times specified in Section 4(c) of the Certificate of
Designations.
SECTION 7. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon the exercise of the
Warrants and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
7.1 ADJUSTMENTS. The number of Shares purchasable upon the exercise
-----------
of the Warrants and the Warrant Price shall be subject to adjustment as follows:
4
(a) In case the Company shall (i) in respect of its Common Stock, pay
a dividend in shares of Common Stock or make a distribution in shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock or (iv) issue by reclassification of its Common
Stock other securities of the Company, the number of Shares purchasable
upon exercise of the Warrants immediately prior thereto shall be adjusted
so that the Warrantholder shall be entitled to receive the kind and number
of shares or other securities of the Company which it would have owned or
would have been entitled to receive after the happening of any of the
events described above, had the Warrants been exercised immediately prior
to the happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall issue rights, options, warrants or
convertible securities to all or substantially all holders of its Common
Stock, without any charge to such holders, entitling them to subscribe for
or to purchase shares of Common Stock at a price per share which is lower
at the record date mentioned below than the then Current Market Price (as
defined in Section 8), the number of Shares thereafter purchasable upon the
exercise of a Warrant shall be determined by multiplying the number of
Shares theretofore purchasable upon exercise of each Warrant by a fraction,
of which the numerator shall be (1) the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, options or
warrants plus (2) the number of additional shares of Common Stock offered
for subscription or purchase, and of which the denominator shall be (x) the
number of shares of Common Stock outstanding immediately prior to the
issuance of such rights, options or warrants plus (y) the number of shares
which the aggregate offering price of the total number of shares offered
would purchase at the Current Market Price. Such adjustment shall be made
whenever such rights, options or warrants are issued, and shall become
effective immediately and retroactively after the record date for the
determination of stockholders entitled to receive such rights, options or
warrants.
(c) In case the Company shall distribute to all or substantially all
holders of its shares of Common Stock evidences of its indebtedness or
assets (excluding cash dividends or distributions out of earnings) or
rights, options, warrants or convertible securities containing the right to
subscribe for or purchase shares of Common Stock (excluding those referred
to in paragraph (b) above), then,
5
in each case, the number of Shares thereafter purchasable upon the exercise
of the Warrants shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of the Warrants by a fraction, of
which the numerator shall be the then Current Market Price on the date of
such distribution, and of which the denominator shall be such Current
Market Price on such date minus the then fair value of the portion of the
assets or evidence of indebtedness so distributed or of such subscription
rights, options or warrants applicable to one share. Such adjustment shall
be made whenever any such distribution is made and shall become effective
on the date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such distribution.
(d) No adjustment in the number of Shares purchasable hereunder shall
be required unless such adjustment would require an increase or decrease of
at least one percent (1%) in the number of Shares then purchasable upon the
exercise of a Warrant; provided, however, that any adjustments which by
-------- -------
reason of this Paragraph (d) are not required to be made immediately shall
be carried forward and taken into account in any subsequent adjustment.
(e) Whenever the number of Shares purchasable upon the exercise of a
Warrant is adjusted as herein provided, the Warrant Price payable upon
exercise of a Warrant shall be adjusted by multiplying such Warrant Price
immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Shares purchasable upon the exercise of a Warrant
immediately prior to such adjustment, and of which the denominator shall be
the number of Shares so purchasable immediately thereafter.
(f) Whenever the number of Shares purchasable upon the exercise of a
Warrant or the Warrant Price is adjusted as herein provided, the Company
shall cause to be promptly mailed to the Warrantholder by first class mail,
postage prepaid, notice of such adjustment or adjustments and a certificate
of a firm of independent public accountants selected by the Board of
Directors of the Company (who may be the regular accountants employed by
the Company) setting forth the number of Shares purchasable upon the
exercise of a Warrant and the Warrant Price after such adjustment, a brief
statement of the facts requiring such adjustment and the computation by
which such adjustment was made.
(g) For the purpose of this Subsection 7.1, the term "Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement or (ii) any other class of stock
resulting from successive changes or reclassifications of such Common
Stock. In the event that at any time, as a result of an
6
adjustment made pursuant to this Section 7, the Warrantholder shall become
entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other securities so purchasable
upon exercise of the Warrant and the Warrant Price of such securities shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Shares contained in this Section 7.
(h) Upon the expiration of any rights, options, warrants or conversion
privileges, if such shall not have been exercised, the number of Shares
purchasable upon exercise of the Warrants and the Warrant Price, to the
extent the Warrants have not then been exercised, shall, upon such
expiration, be readjusted and shall thereafter be such as they would have
been had they been originally adjusted (or had the original adjustment not
been required, as the case may be) on the basis of (A) the fact that the
only shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion rights and (B) the fact that such shares of Common
Stock, if any, were issued or sold for the consideration actually received
by the Company upon such exercise plus the consideration, if any, actually
received by the Company for the issuance, sale or grant of all such rights,
options, warrants or conversion rights whether or not exercised; provided,
--------
however, that no such readjustment shall have the effect of increasing the
-------
Warrant Price by an amount in excess of the amount of the adjustment
initially made in respect of the issuance, sale or grant of such rights,
options, warrants or conversion privileges.
7.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Subsection
---------------------------
7.1, no adjustment in respect of any dividends shall be made during the term of
the Warrant or upon the exercise of the Warrant.
7.3 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
------------------------------------------------------
CONSOLIDATION, ETC. In case of any consolidation of the Company with or merger
------------------
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall provide by agreement that the
Warrantholder shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon exercise of the
Warrant the kind and amount of shares and/or other securities, cash and property
which he would have owned or have been entitled to receive after the happening
of such consolidation, merger, sale or conveyance had the Warrant been
7
exercised immediately prior to such action. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 7. The provisions of this Subsection
7.3 shall similarly apply to successive consolidations, mergers, sales or
conveyances.
7.4 PAR VALUE OF SHARES. Before taking any action which would cause
-------------------
an adjustment reducing the Warrant Price below the then par value of the Shares
of 5% Preferred Stock issuable upon exercise of the Warrant, the Company will
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and non-
assessable shares of 5% Preferred Stock at such adjusted Warrant Price.
7.5 STATEMENT ON WARRANT CERTIFICATES. Irrespective of any
---------------------------------
adjustments in the Warrant Price or the number of securities purchasable upon
the exercise of the Warrant, the Warrant certificate or certificates theretofore
or thereafter issued may continue to express the same price and number of
securities as are stated in the similar Warrant certificates initially issuable
pursuant to this Agreement. However, the Company may at any time in its sole
discretion (which shall be conclusive) make any change in the form of the
Warrant certificate that it may deem appropriate and that does not affect the
substance thereof; and any Warrant certificate thereafter issued, whether upon
registration or transfer of, or in exchange or substitution for, an outstanding
Warrant certificate, may be in the form so changed.
SECTION 8. FRACTIONAL INTERESTS; CURRENT MARKET PRICE.
The Company shall not be required to issue fractional Shares on the
exercise of the Warrant. If any fraction of a share of Common Stock would,
except for the provisions of this Section 8, be issuable on the exercise of the
Warrant (or specified portion thereof), the Company shall pay an amount in cash
equal to the then Current Market Price multiplied by such fraction, provided
that no such cash payment shall be made more often than for one transaction per
month. For the purpose of this Agreement, the term "Current Market Price" shall
mean (i) if the Common Stock is traded in the over-the-counter market or on the
National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ"), the average per share closing prices of the Common Stock on the 20
consecutive trading days immediately preceding the date in question, as reported
by NASDAQ or an equivalent generally accepted reporting service, or (ii) if the
Common Stock is traded on a national securities exchange, the average for the 20
consecutive trading days immediately preceding the date in question of the daily
per share closing prices of the Common Stock on the principal stock exchange on
which it is listed, as the case may be. The closing price referred to above
8
shall be the last reported sales price or in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices, in
either case on the national securities exchange or automated quotation system on
which the Common Stock is then listed.
SECTION 9. NO RIGHTS AS STOCKHOLDER; NOTICES TO WARRANTHOLDER.
Nothing contained in this Agreement or in any of the Warrants shall be
construed as conferring upon the Warrantholder or its transferees any rights
whatsoever as a stockholder of the Company, including the right to vote, to
receive dividends, to consent or to receive notices as a stockholder in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter. If, however, at any time prior to the expiration of the
Warrant and prior to its exercise, any of the following events shall occur:
(a) any action which would require an adjustment pursuant to Sections
7.1 or 7.3; or
(b) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation, merger or sale of its property,
assets and business, as an entirety) shall be proposed;
then in any one or more of said events, the Company shall give notice in writing
of such event to the Warrantholder as provided in Section 12 hereof at least ten
(10) days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to any
relevant dividend, distribution, subscription rights or other rights or for the
determination of stockholders entitled to vote on such proposed dissolution,
liquidation or winding up, or otherwise make appropriate arrangements in
connection with the consummation of any such transaction to permit exercise of
the Warrant contemporaneously therewith. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be.
SECTION 10. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Warrantholder agrees that prior to making any disposition of
any of the Warrants or Shares, the Warrantholder shall give written notice to
the Company describing briefly the manner in which any such proposed disposition
is to be made; and no such disposition shall be made except pursuant to an
effective registration statement or in a transaction exempt from the
registration requirements of the Act, or if the Company has notified the
Warrantholder that, in the reasonable opinion of counsel to the Company, a
registration statement or other
9
notification or post-effective amendment thereto (hereinafter collectively a
"Registration Statement") under the Securities Act is required with respect to
such disposition and no such Registration Statement has been filed by the
Company with, and declared effective, if necessary, by, the Securities and
Exchange Commission (the "Commission").
(b) The Company shall be obligated to the Warrantholder and the owner
of the Shares issued upon exercise of the Warrant (the "Holder") to file a
Registration Statement only as follows:
(i) Whenever, during the seven-year period following the issuance of
the Warrant, the Company proposes to file with the Commission a
Registration Statement (other than a registration on Form ▇-▇, ▇-▇ or other
limited purpose form) it shall, at least thirty (30) days prior to such
filing, give written notice of such proposed filing to the Warrantholder
and each Holder, at its address appearing on the records of the Company,
and shall offer to include and shall include in such filing any proposed
disposition of the securities issuable upon conversion of the Shares upon
receipt by the Company, not less than fifteen days prior to the proposed
filing date, of a request therefor setting forth the facts with respect to
such proposed disposition.
(c) All fees, disbursements and out-of-pocket expenses in connection
with the filing of any Registration Statement under Paragraph (b) of Section 10
and in complying with applicable securities and Blue Sky laws shall be borne by
the Company, provided, however, that any expenses of the Warrantholder or
-------- -------
Holders, including but not limited to attorneys' fees and discounts and
commissions, shall be borne by the Warrantholder and Holders. The Company at
its expense will supply the Warrantholder and any Holder with copies of such
Registration Statement and the prospectus or offering circular included therein
and other related documents in such quantities as may be reasonably requested by
the Warrantholder or Holder.
(d) The Company shall not be obligated to comply with the provisions
of this Section 10 if the Common Stock or other securities issuable upon
conversion of the Shares have been registered for resale under the Act, or such
Common Stock or other securities may be sold pursuant to an applicable exemption
from the registration requirements of the Act.
(e) The Company shall have no obligation under this Section 10 to the
extent that, with respect to an underwritten public offering registration, the
managing underwriter of such public offering reasonably requests that the Shares
or a portion thereof be excluded; and notwithstanding the use of the term
"Shares" in this Section 10, the Company shall have no obligation to register
shares of its 5% Convertible Preferred Stock but
10
shall be obligated to register the shares of Common Stock issuable upon
conversion of such 5% Convertible Preferred Stock.
(f) The Company agrees that it will use its best efforts to keep such
Registration Statement effective until three months after this Warrant has been
exercised in full or has expired.
SECTION 11. INDEMNIFICATION.
The Company on the one hand, and the Warrantholder and the Holders of
Shares, on the other hand, shall have the same indemnification obligations to
each other, including exceptions therefrom and notification requirements with
respect thereto, as are set forth in Section 1.4(f) of the Preferred Stock
Investment Agreements pursuant to which approximately 1,200,000 shares of 5%
Convertible Preferred Stock were sold by the Company on or about the date of
this Warrant Agreement.
SECTION 12. NOTICES.
Any notice pursuant to this Agreement by the Company or by the
Warrantholder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, return receipt requested.
(a) If to the Warrantholder, at its address set forth at the foot of
this Agreement
(b) If to the Company: ▇▇▇ ▇▇▇ Roo, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Each party hereto may from time to time change the address to which
notices to it are to be delivered or mailed hereunder by notice in accordance
herewith to the other party.
SECTION 13. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrantholder shall bind and inure to the benefit
of their respective successors and assigns hereunder.
SECTION 14. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company will not merge or consolidate with or into any other
corporation or sell all or substantially all of its property to another
corporation, unless the provisions of Section 7.3 are complied with.
SECTION 15. REPRESENTATIONS UPON EXERCISE. Upon exercise of the
-----------------------------
Warrant, the Company shall be entitled, as a
11
condition to acceptance of the Warrant Price and the delivery of certificates
representing the Shares, to require (in the alternative) that (i) the
Warrantholder represent that it is an Accredited Investor as defined under the
Act and is acquiring the Shares for investment, or (ii) the Warrantholder elect
a cashless exercise, or (iii) the Warrantholder elect a simultaneous exercise
and conversion, and if the Common Stock issuable upon such conversion is not
then registered under the Act, that the Warrantholder represent that it is
acquiring such Common Stock for investment, or (iv) the Warrantholder furnish to
the Company an opinion of counsel, reasonably satisfactory to the Company and
its counsel, that exercise of the Warrant by the Warrantholder is a transaction
exempt from the registration requirements of the Act.
SECTION 16. APPLICABLE LAW.
This Agreement shall be deemed to be a contract made under the laws of
the State of California and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 17. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company and the Warrantholder any legal or equitable
right, remedy or claim under this Agreement, and this Agreement shall be for the
sole and exclusive benefit of the Company and the Warrantholder.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
▇▇▇ ▇▇▇ Roo, Inc.
By: ___________________________________
Warrantholder:
By: ___________________________________
Address: ______________________________
______________________________
13
EXHIBIT A
The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the "Act")
and neither the securities nor any interest therein may be sold,
exchanged, hypothecated, transferred or otherwise disposed of in the
absence of registration or an exemption therefrom under the Act.
WARRANT TO PURCHASE ___________ SHARES
OF 5% Convertible Preferred Stock
VOID AFTER 5:00 P.M., LOS ANGELES TIME, ON MARCH 20, 2001
▇▇▇ ▇▇▇ ROO, INC.
This certifies that, for value received _________________________
____________ the registered holder hereof or assigns (the "Warrantholder") is
entitled to purchase from ▇▇▇ ▇▇▇ Roo, Inc., a Delaware corporation (the
"Company"), at any time before the expiration time and date shown above, at the
purchase price per share of $25 (the "Warrant Price"), the number of shares
shown above which shall be immediately converted by the Company into Common
Stock in accordance with the Warrant Agreement. The number of shares purchasable
upon exercise of this Warrant and the Warrant Price per share shall be subject
to adjustment from time to time as set forth in the Warrant Agreement referred
to below.
This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the reverse side hereof duly executed and
simultaneous payment of the Warrant Price (subject to adjustment) at the
principal office of the Company. Payment of such price shall be made at the
option of the Warrantholder in cash or by certified or cashier's check or as
otherwise specified in the Warrant Agreement.
This Warrant is issued under and in accordance with a Warrant
Agreement dated as of March 20, 1996 (the "Warrant Agreement") between the
Company and the Warrantholder and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which the Warrantholder and any
transferee of this Warrant by acceptance hereof consents.
Upon any partial exercise of this Warrant, there shall be signed and
issued to the Warrantholder a new Warrant in respect of the shares as to which
this Warrant shall not have been exercised. This Warrant may be exchanged at
the office of the Company by surrender of this Warrant properly endorsed for one
or more new Warrants of the same aggregate number of Units as were evidenced by
the Warrant or Warrants exchanged. No fractional interests will be issued upon
the exercise of rights to purchase hereunder, but the Company shall pay the cash
value of any fraction upon the exercise of one or more warrants, subject to the
Warrant Agreement. This Warrant is transferable at the office of the Company in
the manner and subject to the limitations set forth in the Warrant Agreement.
This Warrant does not entitle any Warrantholder hereof to any of the
rights of a stockholder of the Company.
Dated: By: ______________________________
President
14
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
______________ shares (the "Shares") provided for therein, and requests that
certificates be issued in the name of:
_______________________________________________________________________________
(Please Print Name, Address and Taxpayer Identification Number)
_______________________________________________________________________________
and, if said number of Shares shall not be all the Shares purchasable hereunder,
that a new Warrant certificate for the balance of the shares purchasable under
the within Warrant be registered in the name of the undersigned Warrantholder or
his Assignee as below indicated and delivered to the address stated below.
The undersigned:
[_] elects to pay the full Warrant Price in cash or by certified check or
wire funds transfer
[_] elects "cashless exercise" pursuant to Section 6.2 of the Warrant
Agreement
Dated: ________________ _____________________________
Signature of Warrantholder
or Assignee
Name of Warrantholder or Assignee: ______________________________
(Please Print)
Address: _______________________________________________________
_______________________________________________________
Signature Guaranteed: The above signature must correspond with the name as
written upon the face of the Warrant in every
particular, without alteration or enlargement or any
change whatever, unless this Warrant has been assigned.
Signature guarantee is required if certificates are to
be registered in the name of any person other than the
name written upon the face of the Warrant.
15
ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
______________________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
______________________________________________________________________________
______________________________________________________________________________
(Taxpayer Identification Number of Assignee)
the within Warrant, hereby irrevocably consisting and appointing
____________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated: ________________, 19__ ______________________________
Signature of Registered Holder
Signature Guaranteed: The signature of this assignment must correspond with
the name as it appears upon the face of the within
Warrant certificate in every particular, without
alteration or enlargement or any change whatever.
16