EXHIBIT 2
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND SUCH
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE. THIS LEGEND SHALL BE
IMPRINTED ON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT AGREEMENT
FOR COMMON STOCK OF
▇▇▇▇▇▇.▇▇▇, Inc.
Warrant No. PR-__
THIS CERTIFIES that, for value received, _________, or its permitted
assigns (collectively, the "Holder"), is entitled to purchase from ▇▇▇▇▇▇.▇▇▇,
Inc., a Delaware corporation (the "Company"), at any time, and from time to
time, during the exercise period referred to in Section 1 hereof ________ fully
paid, validly issued and nonassessable shares (the "Warrant Shares") of common
stock of the Company, par value $0.001 (the "Common Stock") at the exercise
price of $0.35 per share, subject to adjustment as provided herein (the "Warrant
Share Price"). Securities issuable upon exercise of this Warrant and the
exercise price payable therefor are subject to adjustment from time to time as
hereinafter set forth. As used herein, the term "Warrant" shall include any
warrant or warrants hereafter issued in consequence of the exercise of this
Warrant in part or transfer of this Warrant in whole or in part. This Warrant is
being issued pursuant to that certain letter agreement of even date herewith
between Prime and the Company.
1. Exercise; Payment for Ownership Interest.
----------------------------------------
(a) Upon the terms and subject to the conditions set forth herein,
this Warrant may be exercised in whole or in part by the Holder hereof at any
time, or from time to time, on or after the date hereof and prior to 5 p.m. New
York time on August 22, 2005, by presentation and surrender of this Warrant to
the principal offices of the Company, or at the office of its Transfer Agent (as
hereinafter defined), if any, together with the Purchase Form annexed hereto,
duly executed, and accompanied by payment to the Company of an amount equal to
the Warrant Share Price multiplied by the number of Warrant Shares as to which
this Warrant is then being exercised; provided, however, that in each case, the
-------- -------
minimum number of Warrant Shares as to which this Warrant is being
exercised shall not be less than 1,000 Warrant Shares; provided, further, that
-------- -------
in the event of any merger, consolidation or sale of all or substantially all
the assets of the Company resulting in any distribution to the Company's
stockholders, prior to August 22, 2005, the Holder shall have the right to
exercise this Warrant commencing at such time through August 22, 2005 into the
kind and amount of shares of stock and other securities and property (including
cash) receivable by a holder of the number of shares of Common Stock into which
this Warrant might have been exercisable immediately prior thereto. Any transfer
of Warrant Shares obtained by the Holder in exercise of this Warrant is subject
to the requirement that such securities be registered under the Securities Act
of 1933, as amended (the "1933 Act"), and applicable state securities laws or
exempt from registration under such laws. The Holder of this Warrant shall be
deemed to be a shareholder of the Warrant Shares as to which this Warrant is
exercised in accordance herewith effective immediately after the close of
business on the date on which the Holder shall have delivered to the Company
this Warrant in proper form for exercise and payment by certified or official
bank check or wire transfer of the cash purchase price for the number of Warrant
Shares as to which the exercise is being made, notwithstanding that the stock
transfer books of the Company shall be then closed or that certificates
representing such Warrant Shares shall not then be physically delivered to the
Holder.
(b) All or any portion of the Warrant Share Price may be paid by
surrendering Warrants effected by presentation and surrender of this Warrant to
the Company, or at the office of its Transfer Agent, if any, with a Cashless
Exercise Form annexed hereto duly executed (a "Cashless Exercise"). Such
presentation and surrender shall be deemed a waiver by the Company of the
Holder's obligation to pay all or any portion of the aggregate Warrant Share
Price. Except as provided in Section 3(b) below, in the event of a Cashless
Exercise, the Holder shall exchange its Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant Shares for which
the Holder desires to exercise this Warrant by a fraction, the numerator of
which shall be the difference between the then current market price per share of
the Common Stock and the Warrant Share Price, and the denominator of which shall
be the then current market price per share of Common Stock. For purposes of any
computation under this Section 1(b), the then current market price per share of
Common Stock at any date shall be deemed to be the average for the ten
consecutive business days immediately prior to the Cashless Exercise of the
daily closing prices of the Common Stock on the principal national securities
exchange on which the Common Stock is admitted to trading or listed, or if not
listed or admitted to trading on any such exchange, the closing prices as
reported by the Nasdaq National Market or, if applicable, the Nasdaq SmallCap
Market, or if not then included for quotation on the Nasdaq National Market or
the Nasdaq SmallCap Market, the average of the highest reported bid and lowest
reported asked prices as reported by the OTC Bulletin Board or the National
Quotations Bureau, as the case may be, or if not then publicly traded, the fair
market price, not less than book value thereof, of the Common Stock as
determined in good faith by the independent members of the Board of Directors of
the Company.
2
(c) If this Warrant shall be exercised in part only, the Company
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the Warrant Shares purchasable hereunder as to which the Warrant has not been
exercised. If this Warrant is exercised in part, such exercise shall be for a
whole number of Warrant Shares. Upon any exercise and surrender of this Warrant,
the Company (i) will issue and deliver to the Holder a certificate or
certificates in the name of the Holder for the largest whole number of Warrant
Shares to which the Holder shall be entitled and, if this Warrant is exercised
in whole, in lieu of any fractional Warrant Share to which the Holder otherwise
might be entitled, cash in an amount equal to the fair value of such fractional
Warrant Share (determined in such reasonable and equitable manner as the Board
of Directors of the Company shall in good faith determine), and (ii) will
deliver to the Holder such other securities, properties and cash which the
Holder may be entitled to receive upon such exercise, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
2. Anti-Dilution Provisions. The Warrant Share Price in effect at any time
------------------------
and the number and kind of securities issuable upon exercise of this Warrant and
the Warrant Share Price shall be subject to adjustment from time to time upon
happening of certain events as follows:
2.1 Reorganization, Reclassification, Consolidation, Merger or Sale. If
---------------------------------------------------------------
any capital reorganization, reclassification or any other change of capital
stock of the Company, or any consolidation or merger of the Company with another
person, or the sale or transfer of all or substantially all of its assets to
another person shall be effected in such a way that holders of shares of Common
Stock shall be entitled to receive stock, securities or assets with respect to
or in exchange for their shares of Common Stock, then provision shall be made by
the Company, in accordance with this Section 2.1, whereby the Holder hereof
shall thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in this Warrant Agreement and in addition to
or in exchange for, as applicable, the Warrant Shares subject to this Warrant
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such securities or assets as would have been issued
or payable with respect to or in exchange for the aggregate Warrant Shares
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby if exercise of the Warrant had occurred immediately
prior to such reorganization, reclassification, consolidation, merger or sale.
The Company will not effect any such consolidation, merger, sale, transfer or
lease unless prior to the consummation thereof the successor entity (if other
than the Company) resulting from such consolidation or merger or the entity
purchasing such assets shall assume by written instrument (i) the obligation to
deliver to the Holder such securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and (ii) all other
obligations of the Company under this Warrant; provided, however, that the
failure to comply with the foregoing shall not affect the validity or legality
of such consolidation, merger, sale, transfer or lease. The provisions
3
of this Section 2.1 shall similarly apply to successive consolidations, mergers,
exchanges, sales, transfers or leases. In the event that in connection with any
such capital reorganization or reclassification, consolidation, merger, sale or
transfer, additional shares of Common Stock shall be issued in exchange,
conversion, substitution or payment, in whole or in part, for a security of the
Company other than Common Stock, any such issue shall be treated as an issue of
Common Stock covered by the provisions of Section 2.2 hereof.
2.2 Stock Dividends and Securities Distributions. If, at any time or from
--------------------------------------------
time to time after the date of this Warrant, the Company shall distribute to the
holders of shares of Common Stock (i) securities (including rights, warrants,
options or another form of convertible securities), (ii) property, other than
cash, or (iii) cash, without fair payment therefor, then, and in each such case,
the Holder, upon the exercise of this Warrant, shall be entitled to receive such
securities, property and cash which the Holder would hold on the date of such
exercise if, on the date of the distribution, the Holder had been the holder of
record of the shares of Common Stock issued upon such exercise and, during the
period from the date of this Warrant to and including the date of such exercise,
had retained such shares of Common Stock and the securities, property and cash
receivable by the Holder during such period, subject, however, to the Holder
agreeing to any conditions to such distribution as were required of all other
holders of shares of Common Stock in connection with such distribution.
2.3 Other Adjustments. In addition to those adjustments set forth in
-----------------
Sections 2.1 and 2.2, but without duplication of the adjustments to be made
under such Sections, if the Company:
(i) declares or pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides or reclassifies its outstanding shares of Common
Stock into a greater number of shares;
(iii) combines or reclassifies its outstanding shares of Common
Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; and/or
(v) issues, by reclassification of its Common Stock, any shares
of its capital stock;
then the number and kind of Warrant Shares purchasable upon exercise of this
Warrant shall be adjusted so that the Holder upon exercise hereof shall be
entitled to receive the kind and number of Warrant Shares or other securities of
the Company that the Holder would have owned or have been entitled to receive
after the happening of any of the
4
events described above had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. An adjustment
made pursuant to this Section 2.3 shall become effective immediately after the
record date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or issuance. If, as a result of an adjustment made pursuant to this Section 2.3,
the Holder of this Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and any other class of capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
written notice to all holders of Warrants promptly after such adjustment) shall
determine the allocation of the adjusted Warrant Share Price between or among
shares of such classes of capital stock or shares of Common Stock and such other
class of capital stock.
The adjustment to the number of Warrant Shares purchasable upon the
exercise of this Warrant described in this Section 2.3 shall be made each time
any event listed in paragraphs (i) through (v) of this Section 2.3 occurs.
Simultaneously with all adjustments to the number and/or kind of
securities, property and cash under this Section 2.3 to be issued in connection
with the exercise of this Warrant, the Warrant Share Price will also be
appropriately and proportionately adjusted.
In the event that at any time, as a result of an adjustment made
pursuant to this Section 2.3, the Holder of this Warrant thereafter shall become
entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant 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
Common Stock contained in Sections 2.1 and 2.2 above and Section 2.4 below.
2.4 Sale of Securities. In the event the Company, at any time after August
------------------
22, 2000, issues or sells Common Stock, convertible preferred stock, options,
warrants, or other securities convertible into or exercisable for Common Stock
other than securities issued upon the conversion or exercise of any securities
outstanding as of August 22, 2000, or pursuant to the Agency Agreement (as
defined below) in connection with the Offering (as defined in the Agency
Agreement), or the transaction contemplated thereby, at a purchase price
("Purchase Price") less than the current market price per share of Common Stock
(determined in the manner contemplated by Section 1(b) above) on the date the
Company becomes obligated to make such issuance or sale, then the Warrant Share
Price shall be reduced to the price determined by multiplying the Warrant Share
Price in effect immediately prior to such issuance or sale by a fraction, the
numerator of which shall be the sum of (A) the number of shares of Common Stock
outstanding (exclusive of any treasury shares) immediately prior to such
issuance or sale multiplied
5
by the current market price per share of Common Stock on the date of such
issuance or sale (determined in the manner contemplated by Section 1(b) above),
plus (B) the consideration received by the Company upon such issuance or sale,
and the denominator of which shall be the product of (X) the total number of
shares of Common Stock outstanding (exclusive of any treasury shares)
immediately after such issuance or sale, multiplied by (Y) the current market
price per share of Common Stock on the date of such issuance or sale (determined
in the manner contemplated by Section 1(b) above), unless the Purchase Price is
below the Warrant Share Price in effect immediately prior to such issuance or
sale, in which event the Warrant Share Price shall be automatically reduced to
such lower Purchase Price; provided, however, that no adjustment to the Warrant
-------- -------
Share Price or the number and kind of Warrant Shares shall be made pursuant to
this Section 2.4 in the event (i) the Company grants options to employees,
officers, directors or consultants of the Company pursuant to contracts or plans
approved by the Board of Directors of the Company, (ii) of the issuance of
securities to a "strategic partner" as determined by the Board of Directors of
the Company (which shall include without limitation any securities issued to
Infoseek Corporation or its affiliates pursuant to that certain (1) Distribution
Agreement by and between the Company and Infoseek, ABCNews Internet Ventures and
ESPN Internet Ventures (the "▇▇.▇▇▇ Parties") Corporation dated April 9, 1999;
--------------
(2) Distribution Agreement by and between the Company and Buena Vista Internet
Group ("BVIG") dated April 9, 1999, and (3) Amendment dated April 20, 2000 by
----
and between the Company, the ▇▇.▇▇▇ parties and BVIG), (iii) the Company pays a
dividend payable in Common Stock, (iv) of the issuance of securities pursuant to
an acquisition transaction approved by the Board of Directors of the Company or
the issuance of securities to trade creditors in connection with the
restructuring of their claims, (v) of the issuance of warrants to lenders or
lessors or other business partners of the Company or the issuance of securities
to trade creditors in connection with the restructuring of their claims, (vi)
the issuance of any securities (the "Issued Securities") upon exercise or
conversion of any derivative securities issued pursuant to that certain Agency
Agreement, as amended, dated as of June 23, 2000 by and between the Company and
Commonwealth Associates, L.P. (the "Agency Agreement") in connection with the
Offering or the transactions contemplated thereby, including, without
limitation, any subsequent adjustment in any such Issued Securities or any
securities issued in respect thereof or (vii) of the issuance of up to an
aggregate of 500,000 shares (as appropriately adjusted for stock splits, stock
dividends, and similar adjustments after the Issuance Date) of Common Stock (or
convertible preferred stock, options, warrants or other securities convertible
into or exercisable for Common Stock) at a purchase price less than the Warrant
Share Price and not otherwise excepted pursuant to clauses (i) through (vii)
above.
(a) For the purpose of making any adjustment in the Warrant Share
Price as provided in this Section 2.4, the consideration received by the Company
for any issue or sale of Common Stock will be computed:
6
(i) to the extent it consists of cash, as the amount of cash
received by the Company before deduction of any offering
expenses payable by the Company and any underwriting or
similar commissions, compensation, or concessions paid or
allowed by the Company in connection with such issue or
sale;
(ii) to the extent it consists of property other than cash, at
the fair market value of that property as determined in
good faith by the Company's Board of Directors
(irrespective of the accounting treatment thereof); and
(iii) if Common Stock is issued or sold together with other stock
or securities (including convertible preferred stock,
options, warrants or securities convertible into or
exchangeable for common stock) or other assets of the
Company for a consideration which covers both, as the
portion of the consideration so received that may be
reasonably determined in good faith by the Company's Board
of Directors to be allocable to such Common Stock;
provided, however, that with respect to such other stock or
-------- -------
securities, such consideration as determined by the
Company's Board of Directors shall not be less than the
total consideration received by the Company for the
issuance of such other stock or securities plus the
additional aggregate consideration, if any, to be received
by the Company upon conversion or exchange thereof.
(b) If the Company (i) issues, grants or sells any rights or options
to subscribe for, purchase, or otherwise acquire shares of Common Stock, or (ii)
issues or sells any security convertible into shares of Common Stock, then, in
each case, the price per share of Common Stock issuable on the exercise of the
rights or options or the conversion of the securities will be determined by
dividing (x) the total amount, if any, received or receivable by the Company as
consideration for the granting or sale of the rights or options or the issue or
sale of the convertible securities (before fees and expenses), plus the minimum
aggregate amount of additional consideration payable to the Company on exercise
or conversion of the securities, by (y) the maximum number of shares of Common
Stock issuable on the exercise of conversion. Such granting or issue or sale
will be considered to be an issue or sale for cash of the maximum number of
shares of Common Stock issuable on exercise or conversion at the price per share
determined under this Section 2.4, and the Warrant Share Price will be adjusted
as above provided to reflect (on the basis of that determination) the issue or
sale. No further adjustment of the Warrant Share Price will be made as a result
of the actual issuance of
7
shares of Common Stock on the exercise of any such rights or options or the
conversion of any such convertible securities.
(c) Upon the redemption or repurchase of any such securities or the
expiration or termination of the right to convert into, exchange for, or
exercise with respect to, Common Stock, the Warrant Share Price will be
readjusted to such price as would have been obtained had the adjustment made
upon their issuance been made upon the basis of the issuance of only the number
of such securities as were actually converted into, exchanged for, or exercised
with respect to, Common Stock. If the purchase price or conversion or exchange
rate provided for in any such security changes at any time, then, upon such
change becoming effective, the Warrant Share Price then in effect will be
readjusted to such price as would have been obtained had the adjustment made
upon the issuance of such securities been made upon the basis of (i) the
issuance of only the number of shares of Common Stock theretofore actually
delivered upon the conversion, exchange or exercise of such securities, and the
total consideration received therefor, and (ii) the granting or issuance, at the
time of such change, of any such securities then still outstanding for the
consideration, if any, received by the Company therefor and to be received on
the basis of such changed price or rate.
2.5 Notice of Adjustments. Upon the occurrence of each adjustment or
---------------------
readjustment of the Warrant Share Price pursuant to this Section 2, the Company
at its expense will promptly compute such adjustment or readjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment or readjustment, including a statement of the adjusted
Warrant Share Price or adjusted number of shares of Common Stock, if any,
issuable upon exercise of each Warrant, describing the transaction giving rise
to such adjustments and showing in detail the facts upon which such adjustment
or readjustment is based. The Company will forthwith mail, by first class mail,
postage prepaid, a copy of each such certificate to the Holder of this Warrant
at the address of such Holder as shown on the books of the Company, and to its
Transfer Agent.
2.6 Other Notices. If at any time:
-------------
(a) the Company shall (i) offer for subscription pro rata to the
holders of shares of the Common Stock any additional equity in the Company or
other rights; (ii) pay a dividend in additional shares of the Common Stock or
distribute securities or other property to the holders of shares of the Common
Stock (including, without limitation, evidences of indebtedness and equity and
debt securities); or (iii) issue securities convertible into, or rights or
warrants to purchase, securities of the Company;
(b) there shall be any capital reorganization or reclassification or
consolidation or merger of the Company with, or sale, transfer or lease of all
or substantially all of its assets to, another entity; or
8
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, to the Holder of this Warrant at the address of such
Holder as shown on the books of the Company, (a) at least 15 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such subscription rights, dividend, distribution or issuance,
and (b) in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least 15 days' prior
written notice of the date when the same shall take place if no stockholder vote
is required and at least 15 days' prior written notice of the record date for
stockholders entitled to vote upon such matter if a stockholder vote is
required. Such notice in accordance with the foregoing clause (a) shall also
specify, in the case of any such subscription rights, the date on which the
holders of shares of Common Stock shall be entitled to exercise their rights
with respect thereto, and such notice in accordance with the foregoing clause
(b) shall also specify the date on which the holders of shares of Common Stock
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Failure to give the notice referred to herein shall not affect the
validity or legality of the action which should have been the subject of the
notice.
2.7 No adjustment in the Warrant Share Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($0.01) in
such price; provided, however, that any adjustments which by reason of this
-------- -------
Section 2.8 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment required to be made hereunder. All
calculations under this Section 2 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
3. Re-set of Warrant Share Price. In the event that the average closing bid
-----------------------------
price for the Company's Common Stock for the 20 trading days preceding the two-
year anniversary of the date hereof is less than the Warrant Share Price, then
the Warrant Share Price shall be automatically reset to such lower price.
4. No Voting Rights. This Warrant shall not be deemed to confer upon the
----------------
Holder any right to vote or to consent to or receive notice as a stockholder of
the Company, as such, in respect of any matters whatsoever, or any other rights
or liabilities as a stockholder, prior to the exercise hereof.
5. Warrants Transferable. This Warrant and all rights hereunder are
---------------------
transferable, in whole or in part, at the principal offices of the Company by
the Holder hereof, upon surrender of this Warrant properly endorsed; provided,
--------
however, that in each case the minimum number of Warrant Shares being
-------
transferred by the Holder shall not be less than 1,000 Warrant Shares; provided,
further, that without the prior written consent of the Company, this Warrant and
all rights hereunder may be transferred only (i) to an affiliate
9
of the initial Holder hereof or successor in interest to any such person in a
transaction exempt from registration under the 1933 Act, it being understood
that each member of Prime Ventures, LLC shall be deemed an affiliate of the
initial Holder for purposes of this Warrant, provided that the Company receives
an opinion of counsel that such a transfer may be effected without registration
under the 1933 Act; or (ii) pursuant to the registration of this Warrant or the
Warrant Shares under the 1933 Act or subsequent to one year from the date hereof
pursuant to an available exemption from such registration. The Holder hereby
covenants that it will not sell, assign or transfer this Warrant or the Warrant
Shares unless the lock-up period set forth in Section 3(b)(ix) of the Agency
Agreement applicable to ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Scalpadi,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Existing
Stockholders") has expired or all of the Existing Stockholders have been
released from their lock-up agreements; provided, however, without limiting the
foregoing, the Holder may sell, assign or transfer such securities to its
affiliates and employees provided they agree to be bound by the terms of the
foregoing restrictions on transfer. Further, the Holder hereby covenants that it
will not pledge or otherwise enter into any transaction or device which is
designed to (including, without limitation, through entering into a cash-settled
derivative instrument) result in the sale of any Warrant Shares prior to the
effective date of a registration statement relating to the resale of the Warrant
Shares. It shall be a condition to transfer of this Warrant that the transferee
agrees to be bound by the restrictions on transfer contained in the preceeding
two sentences.
6. Warrants Exchangeable; Assignment; Loss, Theft, Destruction, Etc. This
-----------------------------------------------------------------
Warrant is exchangeable, without expense, upon surrender hereof by the Holder
hereof at the principal offices of the Company, or at the office of its Transfer
Agent, if any, for new Warrants of like tenor representing in the aggregate the
right to subscribe for and purchase the Warrant Shares which may be subscribed
for and purchased hereunder, each such new Warrant to represent the right to
subscribe for and purchase such Warrant Shares as shall be designated by such
Holder hereof at the time of such surrender. Upon surrender of this Warrant to
the Company at its principal office, or at the office of its Transfer Agent, if
any, with an instrument of assignment duly executed and funds sufficient to pay
any transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon presentation
hereof at the principal office of the Company, or at the office of its Transfer
Agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt of evidence satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of any such loss, theft or destruction, upon delivery of a bond or
indemnity satisfactory to the Company, or, in the case of any such mutilation,
upon surrender or cancellation of this Warrant, the Company will issue to the
Holder hereof a new Warrant of like tenor, in lieu of this Warrant, representing
the right to subscribe for
10
and purchase the Warrant Shares which may be subscribed for and purchased
hereunder. Any such new Warrant executed and delivered shall constitute an
additional contractual obligation of the Company, whether or not this Warrant so
lost, stolen, destroyed, or mutilated shall be at any time enforceable by
anyone.
7. Legends; Investment Representations.
-----------------------------------
(a) Any certificate evidencing the securities issued upon exercise of
this Warrant shall bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
IT SHALL BE A CONDITION TO TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE THAT THE TRANSFEREE AGREES TO BE BOUND BY THE RESTRICTIONS
ON TRANSFER CONTAINED IN SECTION 5 OF THAT CERTAIN ▇▇▇▇▇▇.▇▇▇, INC. WARRANT
AGREEMENT NO. PR-02 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
CORPORATION).
(b) The Holder hereby represents that it is purchasing this Warrant
for its own account for investment and not with the view to or for sale in
connection with the distribution of this Warrant, nor with any present intention
of selling or otherwise disposing of all or any part of this Warrant. The Holder
hereby represents that it understands that there may not be any market for this
Warrant or the Warrant Shares. The Holder hereby agrees that (1) the purchase of
this Warrant is a long-term investment, (2) the Holder may have to bear the
economic risk of investment for an indefinite period of time because neither
this Warrant nor the Warrant Shares has been registered under the Securities Act
and, cannot be resold, pledged, assigned or otherwise disposed of unless they
are subsequently registered under said Securities Act and under applicable
securities laws of certain states or an exemption of such registration is
available and (3) the Holder is an accredited investor as defined in Rule 501
promulgated under the 1933 Act. The Holder hereby represents that it understands
that the Company is under no obligation to register this Warrant and, except as
set forth in a Registration Rights Agreement dated the date hereof, the Company
is under no obligation to register the Warrant Shares. The Holder shall be
deemed to reaffirm the foregoing investment representations at such time the
Holder exercises this Warrant.
8. Modifications and Waivers. The terms of this Warrant may be amended,
-------------------------
modified or waived only by the written agreement of the Company and the Holder.
11
9. Miscellaneous. The Company shall pay all expenses and other charges payable
-------------
in connection with the preparation, issuance and delivery of this Warrant and
all substitute Warrants. The Holder shall pay all taxes (other than any issuance
taxes, including, without limitation, documentary stamp taxes, transfer taxes
and other governmental charges, which shall be paid by the Company) in
connection with such issuance and delivery of this Warrant and the Warrant
Shares.
The Company shall maintain, at the office or agency of the Company
maintained by the Company, books for the registration and transfer of the
Warrant.
10. Reservation of Warrant Shares. Following the filing of the Amendment (as
-----------------------------
defined below), the Company will at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock or its authorized and issued Common Stock held in its treasury,
solely for the purpose of enabling it to satisfy any obligation to issue Warrant
Shares upon exercise of this Warrant, the maximum number of shares of Common
Stock which may then be deliverable upon the exercise of this Warrant. It is
understood that after reserving the number of shares of Common Stock issuable
upon conversion of the Preferred Stock issuable in the Maximum Offering (as such
terms are defined in the Agency Agreement), the Company does not have a
sufficient number of shares of Common Stock authorized and available for
issuance upon exercise of this Warrant and therefore intends to increase the
number of shares of Common Stock it is authorized to issue. The Company shall
use its reasonable best efforts to seek stockholder approval of and an amendment
to its certificate of incorporation to increase the number of authorized shares
of Common Stock so that the Company may legally issue the Warrant Shares.
The Company or, if appointed, the Transfer Agent for the Common Stock (the
"Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the rights of
purchase aforesaid will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Warrant on file with the Transfer Agent and
with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by this
Warrant. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto transmitted to the Holder pursuant
to Section 2.6 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of this Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights and free from all taxes, liens, charges and security interests
with respect to the issue thereof.
11. Registration. The Holder shall be entitled to the registration rights with
------------
respect to the Warrant Shares as set forth in a registration rights agreement
dated August 22, 2000.
12
12. Descriptive Headings and Governing Law. The descriptive headings of the
--------------------------------------
several paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. This Warrant shall be construed and enforced
in accordance with the laws of the State of New York, and the rights of the
parties shall be governed by, the law of such State.
13
IN WITNESS WHEREOF, this Warrant Agreement has been executed as of the 22nd
day of August, 2000.
▇▇▇▇▇▇.▇▇▇, Inc.
By:_______________________________________
Name:
Title:
14
PURCHASE FORM
Dated:__________, ____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ Warrant Shares and hereby makes
payment of $_____________ in payment of the exercise price thereof. The
undersigned further confirms that the representations and warranties contained
in Section 7(b) of the Warrant are true and correct as of the date hereof.
_________________________________________
15
CASHLESS EXERCISE
Dated:__________, ____
The undersigned irrevocably elects to exercise the within Warrant for
Warrant Shares and hereby makes payment pursuant to the Cashless Exercise
provision of the within Warrant, and directs that the payment of the Warrant
Share Price be made by cancellation as of the date of exercise of a portion of
the within Warrant in accordance with the terms and provisions of Section 1(b)
of the within Warrant.
_________________________________________
16