EXHIBIT 10.13
NOTE AND WARRANT PURCHASE AGREEMENT, dated
as of March 3, 2000, among GREENFIELD
ONLINE, INC., a Delaware corporation (the
"Corporation"), and GREENFIELD HOLDINGS,
LLC, a Delaware limited liability company
(the "Purchaser").
WHEREAS, the Corporation desires to sell to the Purchaser and the
Purchaser desires to purchase from the Corporation (i) up to an aggregate of
$5,000,000 in principal amount of the Corporation's 10% subordinated promissory
notes and (ii) warrants to purchase shares of the Corporation's Class A Common
Stock, $0.01 par value per share (the "Class A Common Shares"), on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. ISSUANCE OF THE NOTES AND THE WARRANTS.
Upon the terms and subject to the conditions contained in this
Agreement, the Corporation has authorized the issuance to the Purchaser of, and
the Purchaser has committed to purchase from the Corporation, (a) up to
$5,000,000 (the "Total Commitment") in aggregate principal amount of its 10%
subordinated promissory notes (the "10% Notes") due on the date (the "Maturity
Date") which is the earlier to occur of (i) any Fundamental Change, Change of
Control or Liquidity Event and (ii) June 30, 2000, each such 10% Note to be
substantially in the form of EXHIBIT A attached hereto, and (b) warrants (the
"Warrants") to purchase up to 69,930 Class A Common Shares (the "Warrant
Shares"), each such Warrant to be substantially in the form of EXHIBIT B
attached hereto.
Section 2. RESERVATION OF CLASS A COMMON SHARES.
Upon the terms and subject to the conditions contained in this
Agreement, the Corporation shall reserve up to 69,930 Class A Common Shares for
issuance upon exercise of the Warrants.
Section 3. SALE AND PURCHASE OF NOTES AND WARRANTS.
At each Closing (as defined herein), the Corporation shall sell to the
Purchaser, and the Purchaser shall purchase from the Corporation, upon the terms
and subject to the conditions set forth herein 10% Notes in the aggregate
principal amount to be funded at such Closing as requested by the Corporation in
a written request for funding pursuant to Section 4(a). At the Initial Closing
(as defined herein), the Corporation shall sell to the Purchaser, and the
Purchaser shall purchase from the Corporation, a Warrant to purchase that number
of Warrant Shares as may be determined by dividing $500,000 by the Exercise
Price. Anything contained in the Financing Documents to the contrary
notwithstanding, in no event shall the Purchaser be obligated to purchase an
aggregate principal amount of 10% Notes in excess of the Total Commitment. The
Corporation and the Purchaser agree that 99.5% of the aggregate purchase price
to be paid by the Purchaser for the 10% Notes and the Warrants shall be
allocated to the sale and purchase of the 10% Notes. No party hereto shall take
a position inconsistent with this allocation unless otherwise required by law.
Section 4. THE CLOSINGS; THE INITIAL CLOSING.
(a) The sale of the 10% Notes and the Warrants to be purchased
hereunder shall take place at the offices of Wake, See, Dimes & Bryniczka, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at a closing occurring
simultaneously with the execution and delivery hereof (the "Initial Closing")
and on not more than one other date subsequent to the date hereof as may be
agreed upon by the Corporation and the Purchaser, but in any event not less than
10 business days following receipt by the Purchaser from the Corporation of a
written request for funding pursuant hereto (the "Second Closing", together with
the Initial Closing, are collectively referred to as the "Closings" and each a
"Closing"). At each Closing, the Purchaser shall purchase and the Corporation
shall sell an aggregate principal amount of 10% Notes equal to $2,500,000 of the
Total Commitment.
(b) At the Initial Closing, the Corporation shall deliver to the
Purchaser: (i) a 10% Note registered in the name of the Purchaser in the
aggregate principal amount equal to $2,500,000, (ii) a warrant certificate
representing the Warrant to be purchased by the Purchaser pursuant to Section 3,
(iii) an opinion of Wake, See, Dimes & Bryniczka, counsel to the Corporation,
dated as of the Initial Closing date with respect to the matters set forth in
EXHIBIT C and in form and substance satisfactory to the Purchaser and (iv) a
certificate signed by the chief financial officer or treasurer of the
Corporation to the effect that, both before and immediately after the
consummation of the Initial Closing and the other transactions contemplated to
take place on the Initial Closing date, (a) no Event of Default shall have
occurred and be continuing under the 10% Notes, and (b) the representations and
warranties of the Corporation made in or pursuant to the Financing Documents are
true in all respects (or in all material respects in the case of any such
representation or warranty that is not by its terms already qualified as to
materiality).
(c) In the event of a Second Closing, the Corporation shall deliver
to the Purchaser: (i) a 10% Note registered in the name of the Purchaser in the
aggregate principal amount equal to $2,500,000, (ii) an opinion of Wake, See,
Dimes & Bryniczka, counsel to the Corporation, dated as of the Second Closing
date with respect to the matters set forth in EXHIBIT C and in form and
substance satisfactory to the Purchaser and (iii) a certificate signed by the
chief financial officer or treasurer of the Corporation to the effect that, both
before and immediately after the consummation of the Second Closing and the
other transactions contemplated to take place on the Second Closing date, (a) no
Event of Default shall have occurred and be continuing under the 10% Notes, and
(b) the representations and warranties of the Corporation made in or pursuant to
the Financing Documents are true in all respects (or in all material respects in
the case of any such representation or warranty that is not by its terms already
qualified as to materiality).
(d) It being understood that this Agreement does not constitute a
revolving loan commitment, any amounts repaid or prepaid on 10% Notes purchased
hereunder may not be reborrowed.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation hereby represents and warrants to the Purchaser as
follows:
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5.1. ORGANIZATION.
Each of the Corporation and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as listed on SCHEDULE 5.1, and has all requisite
corporate or other power and authority to own, lease and operate its properties
and other assets and to carry on its business as presently conducted and as a
foreign Person in those jurisdictions listed on SCHEDULE 5.1, which constitute
all the jurisdictions in which the character of the property owned or leased by
the Corporation or such subsidiary or the nature of the activities conducted by
the Corporation or such subsidiary makes such qualification necessary. Attached
hereto as EXHIBIT D is a correct and complete copy of the Certificate of
Incorporation of the Corporation (the "Charter") and attached hereto as EXHIBIT
E is a correct and complete copy of the By-Laws of the Corporation (the
"By-Laws"), in each case as currently in effect.
5.2. CAPITALIZATION.
(a) The authorized capital stock of the Corporation as of the date
of the Initial Closing shall consist of:
(i) 4,000,000 duly authorized shares of Class A Common Stock,
of which:
(A) 1,900,750 shares of Class A Common Stock shall be
validly issued and outstanding, fully paid and nonassessable, with
no personal liability attaching to the ownership thereof; and
(B) 2,210,179 shares of Class A Common Stock shall be
duly reserved for issuance upon the exercise of the Warrants and
outstanding options and other warrants listed on SCHEDULE 5.2
(whether or not presently exercisable);
(ii) 15,000,000 duly authorized shares of Class B Common
Stock, of which 10,927,575 shares shall have been validly issued and
outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof.
All of such outstanding shares in each case are owned of record and beneficially
by the Persons identified on SCHEDULE I attached hereto, without Encumbrance, in
the amounts set forth thereon.
(b) SCHEDULE 5.2 hereto contains a list, as of the date hereof and
assuming the consummation at each Closing of all the transactions contemplated
by the Financing Documents (as defined in Section 5.3), of all outstanding
warrants, options, agreements, convertible securities or other commitments
pursuant to which the Corporation or any stockholder thereof is or may become
obligated to issue, sell or otherwise transfer any capital stock or other
securities of the Corporation, which list (i) names all parties entitled to
receive such shares of capital stock or other securities, (ii) indicates whether
or not such shares of capital stock or other securities are entitled to any
anti-dilution or similar adjustments upon the issuance of additional securities
of the Corporation or otherwise and (iii) sets forth the capital stock or other
securities required to be issued thereunder. Except as contemplated hereby,
there are, and immediately upon consummation at each Closing of the transactions
contemplated hereby, there will be, no preemptive or similar rights to purchase
or otherwise acquire the capital stock of the Corporation
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pursuant to any provision of law, the Charter, the By-Laws or any agreement to
which the Corporation or any shareholder thereof is a party other than as set
forth in the Stockholders' Agreement dated as of May 17, 1999 by and among the
parties thereto (the "Stockholders' Agreement"). Except as set forth on SCHEDULE
5.2, there is, and immediately upon the consummation at each Closing of the
transactions contemplated hereby, there will be, no agreement, restriction or
encumbrance (such as a right of first refusal, right of first offer, proxy,
voting trust, voting agreement, etc.) with respect to the sale or voting of any
capital stock of the Corporation (whether outstanding or issuable upon
conversion or exercise of outstanding securities) other than as set forth in the
Stockholders' Agreement.
(c) All of the outstanding shares of capital stock of the
Corporation have been issued in accordance with applicable foreign, state and
federal laws and regulations governing the sale and purchase of securities.
5.3. AUTHORIZATION OF AGREEMENT, ETC.
The execution, delivery and performance by the Corporation of this
Agreement, the 10% Notes, the Warrants and each other document or instrument
contemplated hereby (collectively, the "Financing Documents") have been duly
authorized by all requisite action (corporate or otherwise) by the Corporation;
and this Agreement and each other Financing Document has been duly executed and
delivered by the Corporation. Each of the Financing Documents is or, in the case
of the 10% Notes and the Warrants, will be, the valid and binding obligation of
the Corporation, enforceable against the Corporation in accordance with its
terms.
5.4. NO CONFLICTS.
The execution, delivery and performance by the Corporation of this
Agreement or the other Financing Documents, the issuance, sale and delivery of
the 10% Notes and the Warrants (and the issuance of any Class A Common Shares
issuable upon the exercise of the Warrants), and compliance with the provisions
hereof by the Corporation, will not (a) violate any provision of law, statute,
rule or regulation (whether foreign or domestic) applicable to the Corporation
or any ruling, writ, injunction, order, judgment or decree of any court,
arbitrator, administrative agency or other governmental body (whether foreign or
domestic) applicable to the Corporation or any of its properties or assets or
(b) conflict with or result in any breach of any of the terms, conditions or
provisions of, or constitute (with notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under,
or result in the creation of, any Encumbrance upon any of the properties or
assets of the Corporation under, the Charter or By-Laws of the Corporation or
any material contract to which it is a party.
5.5. APPROVALS.
Except for (a) the filing of any notice subsequent to any Closing which
may be required under applicable foreign, federal or state securities law
(which, if required, will be filed on a timely basis as may be so required) and
(b) obtaining the approval of existing holders of the Corporation's outstanding
capital stock, no permit, authorization, consent or approval of or by, or any
notification of or filing with, any person (governmental or private) is required
in connection with the execution, delivery or performance of the Financing
Documents by the Corporation.
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5.6. AUTHORIZATION OF THE CLASS A COMMON SHARES, ETC.
The issuance, sale and delivery by the Corporation of the 10% Notes,
the Warrants and the Warrant Shares have been duly authorized by all requisite
corporate action of the Corporation, and, when issued as contemplated by the
Warrants, the Warrant Shares will be validly issued and outstanding, fully paid
and nonassessable and not subject to preemptive or any other similar rights of
the stockholders of the Corporation or others.
5.7. BROKERS AND FINDERS.
The Corporation has not employed any broker or finder in connection
with the transactions contemplated by this Agreement.
Section 6. INVESTMENT REPRESENTATIONS OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Corporation as
follows:
(a) The Purchaser is acquiring the Notes and Warrants to be
purchased by the Purchaser hereunder and, in the event that the Purchaser should
acquire any Class A Common Shares, will be acquiring such Class A Common Shares,
for its own account, for investment and not with a view to the distribution
thereof in violation of the Securities Act or applicable foreign or state
securities laws.
(b) The Purchaser understands that (i) the 10% Notes and the
Warrants have not been, and that the Class A Common Shares will not be,
registered under the Securities Act or applicable foreign or state securities
laws, by reason of their issuance by the Corporation in a transaction exempt
from the registration requirements of the Securities Act and applicable foreign
and state securities laws and (ii) the Notes and Warrants and the Class A Common
Shares must be held by the Purchaser indefinitely unless a subsequent
disposition thereof is registered under the Securities Act and applicable
foreign and state securities Laws or is exempt from registration thereof. The
Purchaser is an "accredited investor" (as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act).
(c) The Purchaser has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
Section 7. CERTAIN DEFINITIONS.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq., as amended from time to time.
"Change of Control" shall be deemed to have occurred at such time as a
"person" or "group" (within the meaning of Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly,
of more than 20% of the total voting power of all classes of stock then
outstanding of the Corporation normally entitled to vote in the election of
directors.
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"Encumbrance" shall mean any liens, charges, encumbrances, equities,
claims, options, proxies, pledges, security interests, or other similar rights
of any nature.
"Exercise Price" shall mean $7.15, as adjusted pursuant to the
Warrants.
"Fundamental Change" shall mean any acquisition, merger, consolidation,
reorganization, or recapitalization, or reclassification of the Corporation's
capital stock, or liquidation, winding up, or dissolution of the Corporation, or
conveyance, sale, assignment, lease, transfer, or other disposition of, in one
transaction or a series of transactions, all or any substantial part of the
Corporation's business, property, or assets, or the acquisition by purchase or
otherwise of all or substantially all of the properties, assets, stock, or other
evidence of beneficial ownership of the Corporation; provided, however, that any
conversion of existing securities by the holders of Class B Common Stock,
including mandatory conversion pursuant to the terms of the Charter pursuant to
an offering by the Corporation of its securities to the general public pursuant
to a registration statement filed under the Securities Act, shall not be deemed
to be a Fundamental Change.
"Liquidity Event" shall mean any transaction (or series of related
transactions) in which the Corporation receives more than $10,000,000 in gross
proceeds from the sale of its capital stock or other securities that are
directly or indirectly convertible or exchangeable into or exercisable for
shares of the Corporation's capital stock.
Section 8. STOCKHOLDERS' AGREEMENT.
The Warrants and the Warrant Shares shall be subject to the provisions
of the Stockholders' Agreement, including, but not limited to, the registration
rights set forth therein, as if the same were Investor Shares.
Section 9. PARTIES IN INTEREST.
This Agreement shall bind and inure to the benefit of the Corporation,
the Purchasers and their respective successors and assigns.
Section 10. ENTIRE AGREEMENT.
This Agreement and the other writings and agreements referred to herein
or delivered pursuant hereto contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
Section 11. NOTICES.
All notices, demands and requests of any kind to be delivered to any
party in connection with this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered or if sent by nationally-
recognized overnight courier or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) if to the Corporation, to:
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Greenfield Online, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.;
with a copy to:
Wake, See, Dimes & Bryniczka
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) if to the Purchaser, to:
Greenfield Holdings, LLC
c/o InSight Capital Partners
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Nissan, Esq.;
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance with the
provisions of this Section 11. Any such notice or communication shall be deemed
to have been received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of nationally-recognized overnight courier, on the
next business day after the date when sent and (iii) in the case of mailing, on
the third business day following that on which the piece of mail containing such
communication is posted.
Section 12. AMENDMENTS.
This Agreement may not be modified or amended, or any of the provisions
hereof waived, except by written agreement of the Corporation and the Purchaser.
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Section 13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
Section 14. HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without giving effect to principles of
conflicts of laws).
Section 16. EXPENSES.
The Corporation agrees to pay, and hold the Purchaser and all holders
of 10% Notes and Warrants or Warrant Shares harmless against liability for the
payment of: (i) the reasonable out-of-pocket expenses (including attorneys' fees
and expenses) of the Purchaser arising in connection with its due diligence and
the negotiation and execution of the Financing Documents and the consummation of
the transactions contemplated by the Financing Documents which shall be payable
at each Closing and with respect to any amendments or waivers (whether or not
the same become effective) under or in respect of the Financing Documents, or
the other agreements contemplated thereby, including the Charter, (ii) stamp and
other taxes which may be payable in respect of the execution and delivery of the
Financing Documents or the issuance, delivery or acquisition of the 10% Notes,
the Warrants or any Warrant Shares and (iii) the reasonable fees and expenses
incurred with respect to the enforcement of the rights granted under the
Financing Documents, the agreements contemplated thereby and the Charter.
* * * * *
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Note
and Warrant Purchase Agreement as of the date first written above.
GREENFIELD ONLINE, INC.
By:
------------------------
Name:
Title:
GREENFIELD HOLDINGS, LLC
By:
------------------------
Name:
Title:
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EXHIBIT A
THIS NOTE AND THE SECURITIES REPRESENTED BY THIS NOTE HAVE BEEN ACQUIRED
FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD OR OTHERWISE TRANSFERRED OR PLEDGED,
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR SUCH APPLICABLE STATE SECURITIES LAWS, OR IF THE PROPOSED TRANSFER MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR REGISTRATION OR
QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO
THE TERMS AND PROVISIONS OF THE NOTE AND WARRANT PURCHASE AGREEMENT AMONG
GREENFIELD ONLINE, INC. AND GREENFIELD HOLDINGS, LLC, DATED AS OF MARCH 3, 2000,
AS AMENDED FROM TIME TO TIME, AND IS ENTITLED TO THE BENEFITS THEREOF.
GREENFIELD ONLINE, INC.
PROMISSORY NOTE DUE JUNE 30, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
$2,500,000 March 3, 2000
Section 1. General.
For value received, GREENFIELD ONLINE, INC., a Delaware corporation
(including any successor thereto, the "Payor"), hereby promises to pay to the
order of GREENFIELD HOLDINGS, LLC or assigns (the "Payee"), the principal amount
of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000) or such greater or
lesser principal amount which may be outstanding hereunder, on the date (the
"Maturity Date") which is the earlier to occur of: (a) the occurrence of a
Fundamental Change, Change of Control, or Liquidity Event; and (b) June 30,
2000. All payments hereunder shall be made in such coin or currency of the
United States of America as at the time of payment shall be legal tender therein
for the payment of public and private debts. The Payor shall pay interest in
arrears on the Maturity Date, payable in cash, on the unpaid balance of the
principal amount of this Note from time to time at the rate of ten percent (10%)
(computed in either event on the basis of a 360-day year and the actual number
of days elapsed) (the "Interest Rate"). The principal of, and interest on, this
Note shall be payable by wire transfer of immediately available funds to the
account of the Payee or by certified or official bank check payable to the Payee
mailed to the Payee at the address of the Payee as set forth on the records of
the Payor or such other address as shall be designated in writing by the Payee
to the Payor. This Note is being issued pursuant to the Note and Warrant
Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"),
among the Payor and Greenfield Holdings, LLC, as amended from time to time.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed thereto in the Purchase Agreement.
Section 2. Subordination.
The Payee agrees not to ask, demand, ▇▇▇ for, take or receive payment of,
or discharge the Payor from the all or any part of this Note unless and until
the Senior Debt (as defined below) shall have been fully paid and discharged,
and all commitments by the Senior Creditor (as defined below) to extend credit
to the Payor shall have been terminated. So long as no "Default" or "Event of
Default" has occurred and is continuing with respect to the Senior Debt, Payor
shall be permitted to make scheduled payments of principal and interest as set
forth in the Note (the "Permitted Payments"). Permitted Payments do not include
mandatory payments due upon a Change of Control, Liquidity Event or Fundamental
Change, or prepayment by the Payor.
Notwithstanding the terms or provisions of any agreement or arrangement
which the Senior Creditor or Payee may now or hereafter have with the Payor, any
rule of law and irrespective of the time, order or method of perfection of any
security interest or the recordation or other filing in any public record of any
financing statement, any security interest in the assets of Payor (the "Senior
Creditor Collateral") granted to the Senior Creditor by the Payor, whether or
not perfected, are and shall remain senior to any security interest therein now
or hereafter granted by the Payor to the Payee.
The Payee shall have no right to take any action with respect to the
Senior Creditor Collateral, whether by judicial or non-judicial foreclosure,
notification to the Payor's account debtors or otherwise, unless and until all
Senior Debt has been fully and indefeasibly paid, and the Senior Creditor shall
have no commitment to extend any further credit to Payor.
Any proceeds of the Senior Creditor Collateral, or proceeds thereof
(whether or not identifiable), received by the Payee shall be paid to the Senior
Creditor on demand.
This terms of this Section 2 shall remain in full force and effect
notwithstanding the filing of a petition for relief by or against the Payor
under the Bankruptcy Code and shall apply with full force and effect with
respect to all Senior Creditor Collateral acquired by the Payor, or obligations
incurred by the Payor to the Payee, subsequent to the date of said petition.
Upon the distribution of any assets of Payor (whether by reason of sale,
reorganization, liquidation, dissolution, arrangement, bankruptcy, receivership,
assignment for the benefit of creditors, foreclosure or otherwise) the Senior
Creditor shall be entitled to receive payment in full of the Senior Debt
(including, without limitation, interest arising subsequent to the date of the
filing by or against Payor of any petition for relief under the Bankruptcy Code
or the making of any assignment for the benefit of creditors, whether or not
such interest is recoverable from or provable against Payor) prior to the
payment of all of any part of this Note, other than Permitted Payments, and the
Senior Creditor is hereby irrevocably appointed attorney-in-fact for the Payee
with full power to act in the place and stead of the Payee in all matters
relating to or affecting this Note, including the right to make, present, file
and vote such proofs of claim against Payor on account of all or any part of
this Note as the Senior Creditor may deem advisable and to receive and collect
any and all dividends or other payments ("Dividends") made thereon and to apply
the same on account of the Senior Debt. The Payee will execute and deliver to
the Senior Creditor such instruments as may be required by the Senior Creditor
to enforce any and all of this Note, to effectuate the aforesaid power of
attorney and to effect collection of any and all
Dividends which may be made at any time on account thereof. The Senior Creditor
agrees to exercise the power of attorney provided for in this paragraph only so
long as a "Default" or "Event of Default" has occurred and is continuing with
respect to the Senior Debt.
The Payee will not, without the Senior Creditor's prior written consent,
assign to or subordinate in favor of any other entity any right, claim or
interest in any part of this Note or commence or join with any other creditor in
commencing any bankruptcy, reorganization or insolvency proceeding against
Payor; provided that, notwithstanding the foregoing, the Payee may assign this
Note so long as the assignee accepts such an assignment subject to and with
notice of, and agrees in writing to be bound by, the terms and conditions
hereof.
The Senior Creditor may at any time, in its discretion, renew or extend
the time of payment of any portion of the Senior Debt, or waive or release any
collateral which may be held therefor, and the Senior Creditor may enter into
such agreements with Payor as it may deem desirable without notice to or further
assent from the Payee and without in any way affecting the rights of the Senior
Creditor hereunder.
This Note is and shall be deemed to be a continuing subordination and
shall be irrevocable. The Payor acknowledges that attempted or purported
termination of this Note by the Payee shall constitute a default in the terms
and conditions of the Senior Debt.
"Senior Debt" means principal and interest (including interest accruing
after the date on which the Payor becomes subject to the jurisdiction of any
federal or state debtor relief statute, whether or not recoverable against the
Payor) of any and all present and future debts and obligations of Payor to
Greyrock Capital as Senior Creditor, not to exceed $7,000,000 in the aggregate
with respect to principal (exclusive of interest, fees, expenses, and costs
owing by the Payor to the Senior Creditor), whether absolute or contingent, due
or to become due, and whether direct or acquired by the Senior Creditor by
transfer, assignment or otherwise whether or not such debts are contemplated by
the Payor, the Senior Creditor, or the Payee and to Youthstream Media Networks,
Inc., as Senior Creditor not to exceed $5,000,000 (pursuant to a contemplated
Loan Agreement to close on or about March 24, 2000), in the aggregate with
respect to principal (exclusive of interest, fees, expenses, and costs owing by
the Payor to the Senior Creditor), whether absolute or contingent, due or to
become due, and whether direct or acquired by the Senior Creditor by transfer,
assignment or otherwise whether or not such debts are contemplated by the Payor,
the Senior Creditor, or the Payee.
"Senior Creditor" means Greyrock Capital, a division of Banc of America
Commercial Finance Corporation and Youthstream Media Networks, Inc.
Section 3. Events of Default.
(a) Definitions.
In each case of the happening of the following events (each of which is an
"Event of Default"):
(i) if any representation or warranty made by the Corporation
or any of its subsidiaries in any Financing Document, or in any report,
certificate, financial statement
or other instrument furnished in connection with the Financing Documents
shall prove to have been false or misleading in any material respect when
made;
(ii) if a default occurs in the payment of any premium,
installment of principal of, interest on, or other obligation with respect
to, this Note, whether at the due date hereof or upon acceleration hereof,
and such default shall continue for more than five (5) days after notice
thereof from the Payee;
(iii) if a default occurs in the due observance or performance
of any covenant or agreement on the part of the Payor to be observed or
performed pursuant to the terms of any Financing Document and such default
remains uncured for thirty (30) days;
(iv) if the Payor shall (1) discontinue its business, (2)
apply for or consent to the appointment of a receiver, trustee, custodian
or liquidator of it or any of its property, (3) admit in writing its
inability to pay its debts as they mature, (4) make a general assignment
for the benefit of creditors, or (5) file a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors, or to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation laws or statutes, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any
such law;
(v) there shall be filed against the Payor an involuntary
petition seeking reorganization of the Payor or the appointment of a
receiver, trustee, custodian or liquidator of the Payor or a substantial
part of its assets, or an involuntary petition under any bankruptcy,
reorganization or insolvency law of any jurisdiction, whether now or
hereafter in effect (any of the foregoing petitions being hereinafter
referred to as an "Involuntary Petition") and such Involuntary Petition
shall not have been dismissed within sixty (60) days after it was filed;
(vi) if final judgment(s) for the payment of money in excess
of an aggregate of $100,000 shall be rendered against the Payor and the
same shall remain undischarged for a period of thirty (30) consecutive
days, during which time execution shall not be effectively stayed;
(vii) if a default occurs in the due observance or performance
of any material covenant, condition or agreement on the part of the Payor
under any debt instrument having a value of more than $100,000, and such
default shall permit the holder thereof to accelerate such indebtedness;
then, upon each and every such Event of Default and at any time thereafter
during the continuance of such Event of Default, at the election of the holders
of a majority of the outstanding principal amount of all 10% Notes, the 10%
Notes and any and all indebtedness of the Payor to the holders of the 10% Notes
shall immediately become due and payable (subject to Section 2 hereof), both as
to principal and interest (including any deferred interest and any accrued and
unpaid interest), without presentment, demand, or protest, all of which are
hereby
expressly waived, anything contained herein or in any other Financing Document
or other evidence of such indebtedness to the contrary notwithstanding (except
in the case of an Event of Default under paragraphs (iv) or (v) of this Section
3(a), in which event such indebtedness shall automatically become due and
payable).
(b) Remedies on Default, Etc.
In case any one or more Events of Default shall occur and be continuing
and acceleration of the 10% Notes or any other indebtedness of the Payor to the
Payee shall have occurred, the Payee may (subject to Section 2 hereof), among
other things, proceed to protect and enforce its rights by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or in any other Financing
Document, or for an injunction against a violation of any of the terms hereof or
thereof or in and of the exercise of any power granted hereby or thereby or by
law. No right conferred upon the Payee hereby or by any other Financing Document
shall be exclusive of any other right referred to herein or therein or now or
hereafter available at law, in equity, by statute or otherwise.
Section 4. Prepayment.
Subject to Section 2 hereof, this Note, together with interest accrued
thereon, may be prepaid in whole or in part without penalty.
Section 5. Defenses.
The obligations of the Payor under this Note shall not be subject to
reduction, limitation, impairment, termination, defense, set-off, counterclaim
or recoupment for any reason.
Section 6. Exchange or Replacement of Notes.
(a) The Payee may, at its option, in person or by duly authorized
attorney, surrender this Note for exchange, at the principal business office of
the Payor, and receive in exchange therefor, a new Note in the same principal
amount as the unpaid principal amount of this Note and bearing interest at the
same annual rate as this Note, each such new Note to be dated as of the date of
this Note and to be in such principal amount as remains unpaid and payable to
such person or persons, or order, as the Payee may designate in writing.
(b) Upon receipt by the Payor of evidence satisfactory to it of the
loss, theft, destruction, or mutilation of this Note, and (in case of loss,
theft or destruction) of an indemnity reasonably satisfactory to it, and upon
surrender and cancellation of this Note, if mutilated, the Payor will deliver a
new Note of like tenor in lieu of this Note. Any Note delivered in accordance
with the provisions of this Section 6 shall be dated as of the date of this
Note.
Section 7. Extension of Maturity. Should the principal of or interest on
this Note become due and payable on other than a business day, the maturity date
thereof shall be extended to the next succeeding business day, and, in the case
of principal, interest shall be payable thereon at the rate per annum herein
specified during such extension. For the purposes of the preceding sentence, a
business day shall be any day that is not a Saturday, Sunday, or legal holiday
in the State of New York.
Section 8. Attorneys' and Collection Fees. Should the indebtedness
evidenced by this Note or any part hereof be collected at law or in equity or in
bankruptcy, receivership or other court proceedings, or this Note be placed in
the hands of attorneys for collection, the Payor agrees to pay, in addition to
principal and interest due and payable hereon, all costs of collection,
including reasonable attorneys' fees and expenses, incurred by the Payee in
collecting or enforcing this Note.
Section 9. Waivers. The Payor hereby waives presentment, demand for
payment, notice of dishonor, notice of protest and all other notices or demands
in connection with the delivery, acceptance, performance or default of this
Note.
No delay by the Payee in exercising any power or right hereunder shall
operate as a waiver of any power or right, nor shall any single or partial
exercise of any power or right preclude other or further exercise thereof, or
the exercise of any other power or right hereunder or otherwise; and no waiver
whatsoever or modification of the terms hereof shall be valid unless set forth
in writing by the Payee and then only to the extent set forth therein.
Section 10. Amendments and Waivers. No provision of this Note may be
amended or waived except as provided in the Purchase Agreement. In Addition, any
proposed amendment or modification of the subordination provisions set forth in
Section 2 of this Note must be consented to in writing by the Senior Creditor.
The Senior Creditor is a direct and intended beneficiary of the terms and
covenants of the subordination provisions of Section 2.
Section 11. Governing Law. This Note is made and delivered in, and shall
be governed by and construed in accordance with the laws of, the State of New
York (without giving effect to principles of conflicts of laws).
Section 12. Notices. The terms and provisions of Section 11 of the
Purchase Agreement are expressly incorporated into this Note.
* * * * *
IN WITNESS WHEREOF, the Payor has duly executed and delivered this Note as
of the date first written above.
GREENFIELD ONLINE, INC.
By: ________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
EXHIBIT B
THIS WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN
ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED OR PLEDGED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS, OR IF THE
PROPOSED TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OR REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
THIS WARRANT, THE SECURITIES REPRESENTED BY THIS WARRANT AND THE CAPITAL
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO CERTAIN VOTING
AGREEMENTS AND RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS'
AGREEMENT, DATED AS OF MAY 17, 1999, AS AMENDED, AMONG THE ISSUER OF SUCH
SECURITIES (THE "CORPORATION") AND CERTAIN OF THE CORPORATION'S SHAREHOLDERS. A
COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE
CORPORATION TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
GREENFIELD ONLINE, INC.
CLASS A COMMON STOCK WARRANT
NO. AW-2 MARCH 3, 2000
VOID AFTER MARCH 3, 2005
(OR EARLIER UPON THE OCCURRENCE OF
CERTAIN EVENTS DESCRIBED BELOW)
THIS CERTIFIES that, for value received, GREENFIELD HOLDINGS, LLC or
assigns (the "Holder"), shall be entitled to subscribe for and purchase from
GREENFIELD ONLINE, INC., a Delaware corporation (including any successor thereto
(by way of merger, consolidation, sale or otherwise), the "Corporation"), up to
that number of shares of Class A Common Stock, $0.01 par value per share (the
"Warrant Shares"), of the Corporation (the "Class A Common Shares") equal to the
quotient obtained by dividing (x) U.S.$500,000 by (y) the Exercise Price, during
the Exercise Period (as defined in Section 1 hereof), pursuant to the terms
and subject to the conditions hereof. This Warrant is being issued pursuant to
the Note and Warrant Purchase Agreement dated as of the date hereof (as amended
from time to time, the "Purchase Agreement") among the Corporation and
Greenfield Holdings, LLC. Capitalized terms used herein but not otherwise
defined herein have the meanings ascribed thereto in the Purchase Agreement.
Section 1. Exercise Period.
This Warrant may be exercised by the Holder at any time or from time to
time after the date hereof and on or prior to March 3, 2005 (such period being
herein referred to as the "Exercise Period").
Section 2. Exercise of Warrant; Warrant Shares.
(a) The rights represented by this Warrant may be exercised, in
whole or in any part (but not as to a fractional Class A Common Share), by (i)
the surrender of this Warrant (properly endorsed) at the office of the
Corporation (or at such other agency or office of the Corporation as it may
designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Corporation), (ii) delivery to the Corporation of
a notice of election to exercise in the form of EXHIBIT A attached hereto, and
(iii) payment to the Corporation of the aggregate Exercise Price by (A) cash,
wire transfer funds or check and/or (B) Class A Common Shares or Warrants to
purchase Class A Common Shares (net of the Exercise Price for such shares),
valued for such purposes at the Market Price per share on the date of exercise.
As used herein, "Market Price" at any date of one Class A Common Share shall be
(i) the last reported sales price regular way or, in case no such reported sales
took place on such day, the last reported bid price regular way on the principal
national securities exchange on which Class A Common Shares are listed or
admitted to trading (or if the Class A Common Shares are not at the time listed
or admitted for trading on any such exchange, then such price as shall be equal
to the last reported sale price, or if there is no such sale price, the last
reported bid price, as reported by the National Association of Securities
Dealers Automated Quotations System ("NASDAQ") on such day, or if, on any day in
question, the security shall not be quoted on the NASDAQ, then such price shall
be equal to the last reported bid price on such day as reported by the National
Quotation Bureau, Inc. or any similar reputable quotation and reporting service,
if such quotation is not reported by the National Quotation Bureau, Inc.) or
(ii) if the Corporation's Class A Common Shares are not listed or admitted to
trading on a principal national securities exchange, the value given such share
as determined by the Corporation's Board of Directors; provided, however, that,
if the Holder notifies the Corporation in writing disputing such determination
by the Corporation's Board of Directors within 20 days after such determination,
the Holder and the Corporation shall mutually agree upon and select an
investment bank to determine the value of one Class A Common Share, the
investment bank's determination to be conclusive, absent manifest error, and the
costs of such determination to be borne by the Corporation, except that the
Holder shall bear such costs if the investment bank's determination is less than
the Corporation's Board of Directors' determination by an amount greater than
10% of the Corporation's Board of Directors' determination.
(b) Each date on which this Warrant is surrendered and on which
payment of the Exercise Price is made in accordance with Section 3(a) above is
referred to herein as an
9
"Exercise Date." Simultaneously with each exercise, the Corporation shall issue
and deliver a certificate or certificates for the Warrant Shares being purchased
pursuant to such exercise, registered in the name of the Holder or the Holder's
designee, to such Holder or designee, as the case may be. If such exercise shall
not have been for the full number of the Warrant Shares, then the Corporation
shall issue and deliver to the Holder a new Warrant, registered in the name of
the Holder, of like tenor to this Warrant, for the balance of the Warrant Shares
that remain after exercise of the Warrant.
(c) The person in whose name any certificate for Class A Common
Shares is issued upon any exercise shall for all purposes be deemed to have
become the holder of record of such shares as of the Exercise Date, except that
if the Exercise Date is a date on which the share transfer books of the
Corporation are closed, such person or entity shall be deemed to have become the
holder of record of such shares at the close of business on the next succeeding
date on which the share transfer books are open. The Corporation shall pay all
documentary, stamp or other transactional taxes attributable to the issuance or
delivery of Class A Common Shares upon exercise of all or any part of this
Warrant; provided, however, that the Corporation shall not be required to pay
any taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a name other than
that of the Holder to the extent such taxes would exceed the taxes otherwise
payable if such certificate had been issued to the Holder.
Section 3. Representations, Warranties and Covenants as to Class A
Common Shares.
The Corporation represents and warrants to the Holder that all Class A
Common Shares, or such other Common Shares that may replace the Corporation's
Class A Common Shares, that may be issued upon the exercise of this Warrant
will, upon issuance, be validly issued, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and free from all taxes,
liens and charges with respect to the issue thereof. The Corporation will from
time to time use its best efforts to take all such action as may be required to
assure that the stated or par value per Class A Common Share is at all times no
greater than the then effective Exercise Price. The Corporation shall at all
times have authorized and reserved, free from preemptive rights, a sufficient
number of Class A Common Shares to provide for the exercise of this Warrant. The
Corporation shall not take any action which would cause the number of authorized
but unissued Class A Common Shares to be less than the number of such shares
required to be reserved hereunder for issuance upon exercise of the Warrant. If
any Class A Common Shares reserved for the purpose of issuance upon the exercise
of this Warrant require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly
issued or delivered upon exercise, then the Corporation shall in good faith and
as expeditiously as possible endeavor to secure such registration or approval,
as the case may be.
Section 4. Adjustment of Exercise Price.
(a) If, at any time after the date hereof the Corporation shall
issue any shares of Common Stock, $0.01 par value per share (the "Common
Shares"), or options to purchase or rights to subscribe for Common Shares, or
securities by their terms convertible into or exchangeable for such Common
Shares, or options to purchase or rights to subscribe for such convertible or
exchangeable securities, other than (a) pursuant to an employee stock option
plan
10
duly authorized and approved by the Corporation's board of directors and its
Shareholders, (b) securities offered to the public pursuant to an offering by
the Company of its securities to the general public pursuant to a registration
statement filed under the Securities Act of 1933, as amended, (c) any common
stock or related options convertible into such shares of common stock issued to
employees, consultants, officers and directors of the Company as an incentive or
in a non financing transaction (d) stock issued upon conversion of preferred
stock or other convertible securities, options and warrants outstanding on the
date of this Warrant, (e) up to 139,860 shares of stock issued upon conversion
of the warrant to be issued to Youthstream Media Networks, Inc. (f) securities
issued as direct consideration for the acquisition of another business entity by
or merger or consolidation of another business entity into the Company, and at a
price less than the Exercise Price per share, then the Exercise Price in effect
immediately prior to each such issuance shall forthwith be adjusted (subject to
the provisions of this paragraph (a)), effective as of the date of such
issuance, to a price equal to the product obtained by multiplying the Exercise
Price in effect immediately prior to the issuance of such Common Shares or other
security by a fraction, the numerator of which is equal to the sum of (x) the
number of Common Shares deemed outstanding on a fully-diluted basis immediately
prior to such issuance (including shares deemed outstanding as provided in
subdivision (iii) below) plus (y) the quotient of the aggregate consideration
received by the Corporation upon such issuance, divided by the Market Price in
effect immediately prior to the issuance of such Common Shares, and the
denominator of which is the total number of Common Shares deemed outstanding on
a fully-diluted basis (including shares deemed outstanding as provided in
subdivision (iii) below) immediately after (and including) such issuance. For
the purposes of this Section 4, notwithstanding the proviso to the definition of
the term "Market Price" in Section 3, a determination of Market Price by
agreement between the Corporation and holders of Warrants representing the right
to purchase 60% or more of the aggregate number of Warrant Shares purchasable
upon exercise of all Warrants issued pursuant to the Purchase Agreement shall be
conclusive and binding on the Holder.
For purposes of any adjustment of the Exercise Price pursuant to this
clause (a), the following provisions shall be applicable:
(i) In the case of the issuance of Common Shares for cash, the
consideration shall be deemed to be the amount of cash paid therefor after
deducting therefrom any discounts, commissions or other expenses allowed,
paid or incurred by the Corporation for any underwriting or otherwise in
connection with the issuance and sale thereof.
(ii) In the case of the issuance of Common Shares for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board, irrespective of any accounting
treatment.
(iii) In the case of the issuance of (x) options to purchase
or rights to subscribe for Common Shares, (y) securities by their terms
convertible into or exchangeable for Common Shares, or (z) options to
purchase or rights to subscribe for such convertible or exchangeable
securities:
11
(A) the aggregate maximum number of Common Shares
deliverable upon exercise of such options to purchase or rights to
subscribe for Common Shares shall be deemed to have been issued at
the time such options or rights were issued and for a consideration
equal to the consideration (determined in the manner provided in
subdivisions (i) and (ii) above), if any, received by the
Corporation upon the issuance of such options or rights plus the
minimum purchase price provided in such options or rights for the
Common Shares covered thereby;
(B) the aggregate maximum number of Common Shares
deliverable upon conversion of or in exchange for any such
convertible or exchangeable securities or upon the exercise of
options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange
thereof, shall be deemed to have been issued at the time such
securities were issued or such options or rights were issued and for
a consideration equal to the consideration received by the
Corporation for any such securities and related options or rights
(excluding any cash received on account of accrued interest or
accrued dividends), plus the additional consideration, if any, to be
received by the Corporation upon the conversion or exchange of such
securities or the exercise of any related options or rights (the
consideration in each case to be determined in the manner provided
in subdivisions (i) and (ii) above);
(C) on any change in the number of Common Shares
deliverable upon exercise of any such options or rights or
conversions of or exchange for such convertible or exchangeable
securities, other than a change resulting from the antidilution
provisions thereof, the Exercise Price shall forthwith be readjusted
to such Exercise Price as would have been obtained had the
adjustment made upon the issuance of such options, rights or
securities not converted prior to such change or options or rights
related to such securities not converted prior to such change, been
made upon the basis of such change; and
(D) on the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or
exchangeable securities, the Exercise Price shall forthwith be
readjusted to such Exercise Price as would have been obtained had
the adjustment made upon the issuance of such options, rights,
securities or options or rights related to such securities, been
made upon the basis of the issuance of only the number of Common
Shares actually issued upon exercise of such options or rights, upon
the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities and subsequent
conversion or exchange thereof.
(b) If, at any time after the date hereof, the number of Common
Shares outstanding is increased by a stock dividend payable in Common Shares or
by a subdivision or split-up of Common Shares, then, following the record date
fixed for the determination of holders of Common Shares entitled to receive such
shares dividend, subdivision or split-up, the Exercise Price in effect at such
time shall be decreased such that the aggregate number of Warrant Shares
12
issuable upon exercise of this Warrant as of such record date shall be increased
in proportion to such increase in outstanding shares.
(c) If, at any time after the date hereof, the number of Common
Shares outstanding is decreased by a combination of the outstanding Common
Shares, then, following the record date for such combination, the Exercise Price
in effect at such time shall be increased such that the aggregate number of
Warrant Shares issuable upon exercise of this Warrant as of such record date
shall be decreased in proportion to such decrease in outstanding shares.
(d) If, at any time after the date hereof, any capital
reorganization, or any reclassification of the capital shares of the Corporation
(other than a change in par value or from par value to no par value or from no
par value to par value or as a result of a shares dividend or subdivision,
split-up or combination of shares) shall be consummated, then this Warrant shall
be exercisable after such reorganization or reclassification into the kind and
number of capital shares or other securities or property of the Corporation to
which the holder of the number of Common Shares (immediately prior to the time
of such reorganization or reclassification) issuable upon exercise of this
Warrant would have been entitled upon such reorganization or reclassification.
The provisions of this paragraph (e) shall similarly apply to successive
reorganizations or reclassifications.
(e) All calculations under this Section 4 shall be made to the
nearest one-thousandth of a cent (U.S.$.001) or to the nearest one-thousandth of
a share, as the case may be.
(f) Immediately upon the adjustment of the Exercise Price, the
Company shall give written notice thereof to the Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
Section 5. Liquidating Dividends.
If the Corporation declares or pays a dividend upon the Common Shares
payable otherwise than in cash out of earnings or earned surplus (determined in
accordance with generally accepted accounting principles, consistently applied)
except for a share dividend payable in Common Shares (a "Liquidating Dividend"),
then the Corporation shall pay to the Holder of this Warrant at the time of
payment thereof the Liquidating Dividend which would have been paid to such
Holder on the Common Shares had this Warrant been fully exercised immediately
prior to the date on which a record is taken for such Liquidating Dividend, or,
if no record is taken, the date on which the record holders of Common Shares
entitled to such dividends are to be determined.
Section 6. No Shareholder Rights.
This Warrant shall not entitle the Holder to any voting rights or other
rights as a shareholder of the Corporation.
Section 7. Restrictions on Transfer.
Subject to the terms of the Stockholders' Agreement, this Warrant, the
Warrant Shares and all rights hereunder are transferable, in whole or in part,
at the agency or office of the
13
Corporation referred to in Section 2 hereof, by the Holder in person or by duly
authorized attorney, upon (i) surrender of this Warrant properly endorsed, and
(ii) delivery of a notice of transfer in the form of EXHIBIT B hereto. Each
transferee and holder of this Warrant, by accepting or holding the same,
consents that this Warrant, when endorsed, in blank, shall be deemed negotiable,
and, when so endorsed, the holder hereof shall be treated by the Corporation and
all other persons dealing with this Warrant as the absolute owner hereof for any
purposes and as the person entitled to exercise the rights represented by this
Warrant, or to the transfer hereof on the books of the Corporation, any notice
to the contrary notwithstanding; provided, however, that until each such
transfer is recorded on such books, the Corporation may treat the registered
holder hereof as the owner hereof for all purposes.
Section 8. Lost, Stolen, Mutilated or Destroyed Warrant.
If this Warrant is lost, stolen, mutilated or destroyed, the Corporation
shall, on such terms as to indemnity or otherwise as it may in its reasonable
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and tenor as the
Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Corporation, whether or not
the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
Section 9. Notices.
The terms and provisions of Section 11 of the Purchase Agreement are
expressly incorporated in this Warrant.
Section 10. Governing Law.
This Warrant shall be governed by and construed in accordance with the
laws of the State of New York (without giving effect to principles of conflicts
of laws).
Section 11. Headings.
The headings of the various sections contained in this Warrant have been
inserted for convenience of reference only and should not be deemed to be a part
of this Warrant.
Section 12. Amendments and Waivers.
No provision of this Warrant may be amended or waived except as provided
in the Purchase Agreement.
* * * *
14
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officers as of the date first written above.
GREENFIELD ONLINE, INC.
By:
-------------------------------------
Name:
Title:
EXHIBIT C
March 3, 2000
Greenfield Holdings, LLC
C/o InSight Capital Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to Greenfield Online, Inc. (the "Company") in
connection with the execution and delivery of the Note and Warrant Purchase
Agreement (the "Purchase Agreement") by and among Greenfield Holdings, LLC (the
"Purchaser") and the Company, and the other agreements and instruments listed on
Schedule A attached hereto (together with the Purchase Agreement, the
"Documents"), dated as of the date hereof. This Opinion is being delivered
pursuant to Section 4(b) of the Purchase Agreement. Capitalized terms used but
not defined herein shall have the respective meanings given to such terms in the
Purchase Agreement.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under, and by virtue of, the laws of the State of Delaware.
The Company has requisite corporate power and authority to execute and
deliver the Purchase Agreement and the Documents, to own and operate its
properties and assets, and to carry on its business as presently
conducted. The Company is either presently qualified or has submitted
applications to be qualified to do business as a foreign corporation in
the States of Washington, California, Missouri, New Jersey, Illinois and
Connecticut.
2. The Company has all requisite legal and corporate power to carry out
and perform its obligations under the terms of the Purchase Agreement and
the Documents.
3. As of March 2, 2000, the authorized capital stock of the Company
consists of 4,000,000 duly authorized shares of Class A Common Stock of
which 1,900,750 shares of Class A Common Stock are validly issued and
outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof and 2,210,179 shares of Class A Common
Stock are duly reserved for issuance upon the exercise of the Warrants and
outstanding options and other warrants (whether or not presently
exercisable); and 15,000,000 duly authorized shares of Class B Common
Stock, of which 10,927,575 shares shall have been validly issued and
outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof. There are a sufficient number of
shares of authorized but unissued Class A Common Stock to effect the
exercise of the Warrants.
The Class A Common Stock issuable upon exercise of the Warrants shall be
duly and validly reserved, and when issued in accordance with the
Company's Certificate of Incorporation will be validly issued, fully paid
and non-assessable, and free of any liens or encumbrances. Except for such
rights previously granted to the Purchasers, no holders of the Company's
securities have registration rights and there are no other options, other
than those granted to employees, warrants, conversion privileges, or other
rights presently outstanding to purchase or otherwise acquire any
authorized but unissued shares of capital stock or other securities of the
Company, or any agreements to issue such securities or rights.
4. The execution, delivery and performance of and compliance with the
Purchase Agreement and the Documents by the Company will not violate or
constitute a default under the Certificate of Incorporation or Bylaws of
the Company.
5. All corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution and delivery of
the Purchase Agreement and the Documents by the Company, the performance
of the Company's obligations under the Purchase Agreement and the
Documents has been taken. The Purchase Agreement and the Documents have
been duly and validly executed and delivered by the Company and constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
6. There are no actions, suits, proceedings or investigations pending
against the Company, any of its officers, directors, employees or its
properties, before any court or governmental agency (nor has the Company
received any actual threat thereof) except as provided in Schedule A,
attached hereto.
7. No consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Company is
required in connection with the valid execution and delivery of the
Purchase Agreement and the Documents, or the consummation of any other
transaction contemplated by the Purchase Agreement and the Documents.
This opinion is for the Purchaser alone and may not be disclosed, quoted
or relied upon by any other person or entity without our prior written
permission. No opinion is implied, or may be inferred, beyond the opinions
expressly stated herein.
We do not purport to be experts in the laws of any jurisdiction other than
the laws of the State of Connecticut, Delaware General Corporation Law (the
"DGCL") and United States federal law insofar as such laws apply, and we express
no opinion as to conflicts of law, rules or the laws of any states or
jurisdictions other than Connecticut, the DGCL, United States federal law, to
the extent those laws are relevant to the transactions contemplated by the
Documents. To the extent that matters expressed in our opinion below are
governed by laws other than the laws of the State of Connecticut, the DGCL or
the federal laws of the United States, we have assumed, with your permission and
without independent investigation, for the purposes of such opinions that such
laws are identical in all respects to the laws of Connecticut and we express no
opinion as to whether such assumption is reasonable or correct. We note in
particular that the Documents purport to be governed by the laws of the State of
New York.
Very truly yours,
Wake, See, Dimes & Bryniczka
By _________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Its Partner
17
EXHIBIT D
CERTIFICATE OF INCORPORATION
OF
GFOL, INC.
1. The name of the corporation is GFOL, INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware, including, but not limited to,
online marketing research.
4. (A) The total number of shares of stock which the corporation shall
have authority to issue is 19,000,000 shares (the "Common Stock") consisting of
(i) 4,000,000 shares of Common Stock, par value $.01 per share, all of which
shall be designated Class A Common Stock (the "Class A Common Stock") and (ii)
15,000,000 shares of Common Stock, par value $.01 per share, all of which shall
be designated Class B Common Stock (the "Class B Common Stock"). The Class A
Common Stock and Class B Common Stock shall have the powers, preferences and
relative, participating, optional and other special rights, and the
qualifications and restrictions thereof, set forth in Subparagraph 4(B) below.
(B)
(C) An amendment to the Certificate of Incorporation shall not
affect the validity of any prior stock split authorized in accordance with the
laws of the State of Connecticut unless the amendment specifically provides to
the contrary.
5. The holders of Common stock shall, upon the issuance or sale of shares
of stock of any class (whether now or hereafter authorized) or any securities
convertible into such stock, have the right, during such period of time and on
such conditions as the board of directors shall prescribe, to subscribe to and
purchase such shares or securities in proportion to their respective holdings of
Common stock, at such price or prices as the board of directors may from time to
time fix and as may be permitted by law.
6. The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7. The corporation is to have perpetual existence.
8. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation.
9. Elections of directors need not be by written ballot unless the by-laws
of the corporation shall so provided. Meetings of stockholders may be held
within or without the State of Delaware, as the by-laws may so provide. The
books of the corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the board of directors or in the by-laws of the
corporation.
10. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
11. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 21st day of January, 2000.
_________________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Incorporator
19
EXHIBIT E
BY-LAWS
OF
GREENFIELD ONLINE, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. - The registered office shall be established
and maintained at c/o Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware and Corporation Trust Center shall be the registered agent of this
corporation in charge thereof.
SECTION 2. OTHER OFFICES - The corporation may have other offices, either
within or without the State of Delaware, at such place of places as the Board of
Directors may from time to time appoint or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS - Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of the meeting, shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of meeting. In the event the
Board of Directors fails to so determine the time, date and place of meeting,
the annual meeting of stockholders shall be held at the office of the
corporation in Wilton, Connecticut.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
they may transact such other corporate business as shall be stated in the notice
of meeting.
SECTION 2. OTHER MEETINGS. - Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. - Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to one by such stockholder, but no proxy
shall be voted after three years from its date unless such proxy provides for a
longer period. Upon the demand of any
20
stockholder, the vote for directors and the vote upon any question before the
meeting, shall be by ballot. All elections for directors shall be decided by
plurality vote; all other questions shall be decided by majority vote except as
otherwise provided by the Certificate of Incorporation or the laws of the State
of Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each, and the
number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 4. QUORUM - Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote the meeting.
SECTION 5. SPECIAL MEETINGS - Special meetings of the stockholders for any
purpose or purposes may be called by the President or Secretary, or by
resolution of the directors.
SECTION 6. NOTICE OF MEETINGS - Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten nor
more than sixty days before the date of the meeting. No business other than that
stated in the notice shall be transacted at any meeting without the unanimous
consent of all the stockholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING - Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a
21
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shared entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. - The number of directors constituting the
Board of the Company, as fixed from time to time by the Board in accordance with
the Company's by-laws, shall initially be five (5). The number of directors
constituting the Board shall not be changed without the consent of a majority of
the Investor Shares, as such term is defined in a certain Shareholder's
Agreement dated May 17, 1999 by and between Greenfield Online, Inc. (the
Connecticut corporation) nd its shareholders. At each annual meeting of the
holders of any class of Stock, and at each special meeting of the holders of any
class of Stock called for the purpose of electing directors of the Company, and
at any time at which holders of any class of Stock shall have the right to, or
shall, vote for or consent in writing to the election of directors of the
Company, then, and in each such event, the Shareholders shall vote all of the
Shareholder Shares owned by them or their Affiliates, and their respective
transferees shall so vote for, or consent in writing with respect to such shares
in favor or, the election of a Board of the Company constituted as follows:
A. Two (2) directors who shall be designated and approved by the
Management Retained Shareholders, as such term is defined in a
certain Shareholder's Agreement dated May 17, 1999 by and between
the Greenfield Online, Inc. (the Connecticut corporation) and its
shareholders, holding at least a majority of the then outstanding
Retained Shareholders Shares held by Management Retained
Shareholders; and
B. Three (3) directors who shall be designated and approved by the
holders of at least a majority of the then outstanding Investor
Shares, as such term is defined in certain Shareholder's Agreement
dated May 17, 1999 by and between Greenfield Online, Inc. (the
Connecticut corporation) and its shareholders.
SECTION 2. RESIGNATIONS. - Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if not time be specified,
at the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. - If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less
22
than a quorum by a majority vote, may appoint any qualified person to fill such
vacancy, who shall hold office for the unexpired term and until his successor
shall be duly chosen.
SECTION 4. REMOVAL. - Any director or directors may be removed either for
or without cause at any time by the affirmative vote of the holders of a
majority of all the shares of stock outstanding and entitled to vote, at a
special meeting of the stockholders called for the purpose of removal, by the
affirmative vote of a majority in interest of the stockholders entitled to vote.
SECTION 5. INCREASE OF NUMBER. - The number of directors constituting the
Board shall not be changed without the affirmative vote of a majority of the
Investor Shares, as such term is defined in a certain Shareholder's Agreement
dated May 17, 1999 by and between Greenfield Online, Inc. (the Connecticut
corporation) and its shareholders, at the annual meeting of the shareholders of
the Company or at a Special Meeting called for such purpose.
SECTION 6. POWERS - The Board of Directors shall exercise all of the
powers of the corporation except such as are by law, or by the Certificate of
Incorporation of the corporation or by these By-Laws conferred upon or reserved
to the stockholders.
SECTION 7. COMMITTEES. - The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of two or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member or
such committee or committees, the member or members thereof present at any such
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board
of Directors, or in these By-Laws, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power of authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation of a revocation of a dissolution, or amending the
By-Laws of the corporation; and unless the resolution, these By-Laws, or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 8. MEETINGS. - The newly elected Board of Directors may hold their
first meeting for the purpose of organization and the transaction of business,
if a
23
quorum be present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent, in writing, of all
the directors.
Unless restricted by the incorporation document or elsewhere in these
By-Laws, members of the Board of Directors or any committee designated by such
Board may participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at such meeting.
Regular meetings of the Board of Directors may be scheduled by a
resolution adopted by the Board. The Chairman of the Board or the President or
Secretary may call, and if requested by any two directors, must call special
meeting of the Board and give five days' notice to each director. The Board of
Directors may hold an annual meeting, without notice, immediately after the
annual meeting of shareholders.
SECTION 9. QUORUM. - A majority of the directors in person or attending by
telephone shall constitute a quorum for the transaction of business. If at any
meeting of the board there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum is
obtained, and no further notice thereof need be given other than by announcement
at the meeting which shall be so adjourned.
SECTION 10. COMPENSATION - Directors shall not receive any stated salary
for their services as directors or as members of committees, but by resolution
of the board a fixed fee and expenses of attendance may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING - Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the board, or of such committee as the case
may be, and such written consent is filed with the minutes of proceedings of the
board or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. - The officers of the corporation shall be a
President, a Treasurer, and a Secretary, all of whom shall be elected by the
Board of Directors and who shall hold office until their successors are elected
and qualified. In addition, the Board of Directors may elect a Chairman, one or
more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as
they may deem proper. None of the officers of the corporation need by directors.
The officers shall be elected at the first
24
meeting of the Board of Directors after each annual meeting. More than two
offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS - The Board of Directors may appoint
such other officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. - The Chairman of the Board of Directors, if one is
elected, shall preside at all meetings of the Board of Directors and he shall
have and perform such other duties as from time to time may be assigned to him
by the Board of Directors.
SECTION 4. PRESIDENT - The President shall be the chief executive officer
of the corporation and shall have the general powers and duties of supervision
and management usually vested in the office of President of a corporation. He
shall preside at all meetings of the stockholders if present thereat, and in the
absence or non-election of the Chairman of the Board of Directors, at all
meetings of the Board of Directors, and shall have general supervision,
direction and control of the business of the corporation. Except as the Board of
Directors shall authorize the execution thereof in some other manner, he shall
execute bonds, mortgages and other contracts in behalf of the corporation, and
shall cause the seal to be affixed to any instrument requiring it and when so
affixed the seal shall be attested by the signature of the Secretary or the
Treasurer or Assistant Secretary or an Assistant Treasurer.
SECTION 5. VICE-PRESIDENT - Each Vice-President shall have such powers and
shall perform such duties as shall be assigned to him to by the directors.
SECTION 6. TREASURER. - The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositaries as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
an account of all his transactions as Treasurer and of the financial condition
of the corporation. If required by the Board of Directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and
with surety as the board shall prescribe.
SECTION 7. SECRETARY - The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by the law or by these By-Laws, and in case of his absence or refusal
or neglect to do so, any such notice may be given by any person thereunto
directed by the President, or by the
25
directors, or stockholders, upon whose requisition the meeting is called as
provided in these By-Laws. He shall record all the proceedings of the meetings
of the corporation and of the directors in a book to be kept for that purpose,
and shall perform such other duties as may be assigned to him by the directors
or the President. He shall have the custody of the seal of the corporation and
shall affix the same to all instruments requiring it, when authorized by the
directors or the President, and attest the same.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK - A certificate of stock, signed by the
Chairman or Vice-Chairman of the Board of Directors, if they be elected,
President or Vice-President, and the Treasurer or an Assistant Treasurer, or
Secretary or Assistant Secretary, shall be issued to each stockholder certifying
the number of shares owned by him in the corporation. When such certificates are
countersigned (1) by a transfer agent other than the corporation or its
employee, or, (2) by a registrar other than the corporation or its employee, the
signatures of such officers may be facsimiles.
SECTION 2. LOST CERTIFICATES - A new Certificate of stock may be issued in
the place of any certificates theretofore issued by the corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion, require
the owner of the lost or destroyed certificate, or his legal representatives, to
give the corporation a bond, in such sum as they may direct, not exceeding
double the value of the stock, to indemnify the corporation against any claim
that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES - The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificate shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the directors may designate, by whom they shall be
cancelled, and new certificates shall thereupon be issued. A record shall be
made of each transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. - In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporation
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect to any change, conversion or exchange of stock or
for the purpose of any date, which shall not
26
be more than sixty nor less than ten days before the date of such meetings, nor
more than sixty days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjournment meeting.
SECTION 5. DIVIDENDS - Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. - The corporation seal shall be circular in form and
shall contain the name of the corporation, the year of its creation and the
words, "Corporation Seal, Delaware, 2000". Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR - The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
SECTION 8. CHECKS. - All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE - Whenever any notice is required
by these By-Laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage, prepaid, addressed to
the person entitled thereto at this address as it appears on the records of the
corporation, and such notice shall be deemed to have been given on the day of
such mailing. Stockholders not entitled to vote shall not receive notice of any
meetings except as otherwise provided by Statute.
Whenever any notice whatever is required to be given under the provisions
of any law, or under the provisions of the Certificate of Incorporation of the
corporation of these By-Laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE VI
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the
27
proposed alteration or repeal of By-Law or By-Laws to be made be contained in
the notice of such special meeting, by the affirmative vote of a majority of the
stock issued and outstanding and entitled to vote thereat, or by the affirmative
vote of a majority of the Board of Directors, at any regular meeting of the
Board of Directors, or at any special meeting of the Board of Directors, if
notice of the proposed alteration or repeal of By-Law or By-Laws to be made, be
contained in the notice of such special meeting.
ARTICLE VII
INDEMNIFICATION
No director shall be liable to the corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except with
respect to (1) a breach of the director's duty of loyalty to the corporation or
its stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability which may be
specifically defined by law or (4) a transaction from with the director derived
an improper personal benefit, it being the intention of the foregoing provision
to eliminate the liability of the corporation's directors to the corporation or
its stockholders to the fullest extent permitted by law. The corporation shall
indemnify to the fullest extent permitted by law each person that such law
grants the corporation the power to indemnify.
28
SCHEDULE 5.1
o ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
o New Jersey
SCHEDULE 5.2
See provisions of a Shareholders' Agreement between the Company and the
Shareholders as defined therein which contains an agreement between certain
shareholders concerning the designation and election of directors of the
Corporation.
See Schedule I for list of shareholders
Greyrock Capital, a division of Banc of America Commercial Finance Corp., is the
holder of Warrants to Purchase 83,904 Shares of the Class A common stock of the
Corporation for $7.15 per share by virtue of certain Loan and Security Agreement
and accompanying Warrant dated December 3, 1999. Greyrock is entitled to the
rights and privileges contained in a certain Anti-Dilution Agreement of even
date.
SCHEDULE A
By Complaint dated August 6, 1999 and Amended on September 23, 1999, and
filed in the U.S. District Court for the Western district of Now York, ▇▇▇▇▇▇
Interactive, Inc., filed a 5 count complaint against Greenfield Online, Inc. The
Amended Complaint seeks to have Greenfield Online, Inc.'s Service ▇▇▇▇ "Research
Revolution" cancelled and seeks a declaratory judgment that ▇▇▇▇▇▇ Interactive
is not infringing the ▇▇▇▇ (Count One), seeks monetary. damages for alleged
defamatory statements made by an officer of Greenfield Online concerning ▇▇▇▇▇▇
Interactive's business practices (Count Two), seeks monetary damages for
allegedly disparaging remarks made by a Greenfield Online Officer concerning
▇▇▇▇▇▇ Interactive's business practices (Count Three), seeks monetary damages
for Greenfield Online's allegedly intentional interference with contractual
relationships (Count Four) and seeks monetary damages for Greenfield Online's
allegedly unfair competition. The parties are in the process of substantive
settlement negotiations, and have exchanged draft settlement agreements. No
anticipated settlement will result in any monetary payment from Borrower.
In May, 1998, Cybergold notified Greenfield Online that it believed that
Greenfield Online had violated its patent number 5,749,210, issued to Cybergold
for negatively induced solicitations, claiming that this patent covered paying
people to participate in surveys online. Although a license agreement was
proposed by Cybergold, Greenfield Online took the position that it did not
infringe this patent, and took no further action with respect to Cybergold.
Since March of 1999 there has been no contact between Cybergold and Greenfield
Online.
SCHEDULE I
o See Attached:
o Stock Ledger
o Option Report as of February 29, 2000
AMENDMENT NO. 1, dated as of March
10, 2000 (this "Amendment No. 1"), to the
Note and Warrant Purchase Agreement dated as
of March 3, 2000 (the "Purchase Agreement"),
among GREENFIELD ONLINE, INC., a Delaware
corporation (the "Borrower"), and GREENFIELD
HOLDINGS, LLC, a Delaware limited liability
company (the "Purchaser").
RECITALS
The Borrower has requested that the Maturity Date (as defined in the
Purchase Agreement) of the 10% Notes issued pursuant to the Purchase Agreement
be extended to June 30, 2001. The Purchaser is willing to agree to such
extension, but only on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined herein, capitalized
terms shall be accorded the definitions assigned to them in the Purchase
Agreement.
Section 2. Amendments to the Purchase Agreement.
2.1. Section 1 of the Purchase Agreement is hereby amended by
deleting the reference to "June 30, 2000" in subclause (ii) of clause (a)
thereof and replacing it with "June 30, 2001".
2.2. The Purchase Agreement is hereby amended by adding a new
Section 4A thereto to read in its entirety as follows:
"Section 4A. Contingent Right To Additional Warrants.
Notwithstanding anything to the contrary contained in the
Financing Documents, if the Corporation has not repaid all of
the principal and interest due on the 10% Notes on or prior to
each date set forth below, then, not later than the fifth
business day following such date, the Corporation shall issue
to the Purchaser additional warrants (the "Contingent
Warrants") to purchase the number of Class A Common Shares (as
such number of Class A Common Shares may be adjusted for stock
splits, stock dividends, split ups, combinations,
reclassifications of Class A Common Shares, capital
reorganizations, mergers or consolidations and other similar
events) set forth opposite the corresponding date below (each
such date, as applicable, shall be referred to as the
"Contingent Warrant Effective Date"):
September 30, 2000 34,965
December 31, 2000 34,965
March 31, 2001 34,965
June 30, 2001 34,965
The exercise price at any time for each Class A Common Share
subject to a particular Contingent Warrant shall be the fair
market value of a Class A Common Share, as determined in good
faith by the Corporation's Board of Directors, as of the
applicable Contingent Warrant Effective Date. The exercise
period for each Contingent Warrant shall be at any time or
from time to time after the applicable Contingent Warrant
Effective Date until and including the fifth anniversary
thereof. The Contingent Warrants shall contain such other
terms and conditions substantially as set forth in the form of
Warrant attached hereto as Exhibit B."
Section 3. Expenses. The Corporation hereby confirms its obligations
under Section 16 of the Purchase Agreement with respect to the payment of
expenses, fees and other amounts thereunder in connection with this Amendment
No. 1, the Contingent Warrants and the Class A Common Shares issued pursuant to
exercise of the Contingent Warrants.
Section 4. References to the Purchase Agreement. From and after the
date hereof, all references in the Purchase Agreement and each of the other
Financing Documents to the Purchase Agreement shall be deemed to be references
to the Purchase Agreement after giving effect to this Amendment No. 1.
Section 5. No Other Amendments. Except as expressly set forth herein,
the Purchase Agreement remains in full force and effect in accordance with its
terms and nothing contained herein shall be deemed (i) to be a waiver,
amendment, modification or other change of any term, condition or provision of
the Purchase Agreement or any other Financing Document (or a consent to any such
waiver, amendment, modification or other change), (ii) to be a consent to any
transaction, (iii) to prejudice any right or rights which the Purchaser may have
under the Purchase Agreement and/or any of the other Financing Documents, or
(iv) to entitle the Corporation to a waiver, amendment, modification or other
change of any term, condition or provision of the Purchase Agreement or any
other Financing Document (or a consent to any such waiver, amendment,
modification or other change), or to a consent, in the future in similar or
different circumstances.
Section 6. Further Assurances. The parties hereto agree to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Agent may at any time reasonably
request in connection with the administration and enforcement of this Amendment
No. 1 or in order better to assure and confirm unto the Purchaser its rights and
remedies hereunder and to permit the exercise thereof in compliance with
applicable law.
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Section 7. Notices. All notices, demands and requests of any kind to be
delivered to any party hereto in connection with this Amendment No. 1 shall be
delivered in accordance with the notice provisions contained in the Purchase
Agreement.
Section 8. Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
into consideration in interpreting, this Amendment No. 1.
Section 9. Counterparts. This Amendment No. 1 may be executed in any
number of separate counterparts, each of which shall be an original and all of
which taken together shall constitute one and the same instrument.
Section 10. Applicable Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
[SIGNATURE PAGES FOLLOW]
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed and delivered as of the day and year first above written.
GREENFIELD ONLINE, INC.
By:
------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
GREENFIELD HOLDINGS, LLC
By:
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President