Date: June 22, 2009 WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK OF INTERCLICK, INC.
THIS
WARRANT AND THE UNDERLYING SHARES OF COMMON STOCK HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS,
HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR TRANSFERRED OR OFFERED
FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH SECURITIES IS THEN IN
EFFECT, OR IN THE OPINION OF COUNSEL TO THE ISSUER OF THESE SECURITIES, SUCH
REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS IS
NOT REQUIRED.
Date:
June 22, 2009
WARRANT
FOR THE PURCHASE OF SHARES OF
COMMON
STOCK OF INTERCLICK, INC.
THIS IS TO CERTIFY that, for value
received, __________________________, his successors and assigns (collectively,
the “Holder”), are entitled to purchase, subject to the terms and conditions
hereinafter set forth, ______________ shares of interCLICK, Inc., a Delaware
corporation (the “Company”) common stock, $0.001 par value per share (the
“Common Stock”) and to receive certificates for the Common Stock so
purchased. The exercise price of this Warrant is $1.40 per share (the “Exercise
Price”).
1.
Exercise
Period. This Warrant may be exercised by the Holder at any
time through 5:00 pm, New York, New York time, on June 22, 2012 (the
“Exercise Period”). This Warrant will terminate automatically and
immediately upon the expiration of the Exercise Period.
2.
Exercise of
Warrant. This Warrant may be exercised, in whole or in part,
at any time and from time to time during the Exercise Period. Such
exercise shall be accomplished by tender to the Company of an amount equal to
the Exercise Price multiplied by the number of underlying shares being purchased
(the “Purchase Price”), in cash, by wire transfer or by certified check or bank
cashier’s check, payable to the order of the Company. Upon receipt of
the foregoing, the Company will deliver to the Holder, as promptly as possible,
a certificate or certificates representing the shares of Common Stock so
purchased, registered in the name of the Holder or its transferee (as permitted
under Section 3 below). With respect to any exercise of this Warrant,
the Holder will for all purposes be deemed to have become the holder of record
of the number of shares of Common Stock purchased hereunder on the date a
properly executed Subscription and payment of the Purchase Price is received by
the Company (the “Exercise Date”), irrespective of the date of delivery of the
certificate evidencing such shares, except that, if the date of such receipt is
a date on which the stock transfer books of the Company are closed, such person
will be deemed to have become the holder of such shares at the close of business
on the next succeeding date on which the stock transfer books are
open. Fractional shares of Common Stock will not be issued upon the
exercise of this Warrant. In lieu of any fractional shares that would
have been issued but for the immediately preceding sentence, the Holder will be
entitled to receive cash equal to the current market price of such fraction of a
share of Common Stock on the trading day immediately preceding the Exercise
Date. In the event this Warrant is exercised in part, the Company
shall issue a new Warrant to the Holder covering the aggregate number of shares
of Common Stock as to which this Warrant remains exercisable for. The
Company acknowledges and agrees that this Warrant was issued on the Issuance
Date.
1
3.
Recording, Transferability,
Exchange and Obligations to Issue Common Stock.
(a) Registration of
Warrant. The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the “Warrant Register”), in
the name of the record Holder hereof from time to time. The Company
may deem and treat the registered Holder of this Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary from the
transferee and transferor.
(b) Registration of
Transfers. The Company shall register the transfer of any
portion of this Warrant in the Warrant Register, upon surrender of this Warrant,
with the Form of Assignment attached hereto as Exhibit B duly
completed and signed, to the Company at its address specified
herein. As a condition to the transfer, the Company may request a
legal opinion as contemplated by the legend. Upon any such
registration or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a “New Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
(c) This
Warrant is exchangeable upon its surrender by the Holder to the Company for new
Warrants of like tenor and date representing in the aggregate the right to
purchase the number of shares purchasable hereunder, each of such new Warrants
to represent the right to purchase such number of shares as may be designated by
the Holder at the time of such surrender (not to exceed the aggregate number of
shares underlying this Warrant).
(d) The
Company’s obligations to issue and deliver Common Stock in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any person or any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
person of any obligation to the Company or any violation or alleged violation of
law by the Holder or any other person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of Common Stock. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock upon
exercise of the Warrant as required pursuant to the terms
hereof.
2
4.
Adjustments to Exercise Price and
Number of Shares Subject to Warrant. The Exercise Price and
the number of shares of Common Stock purchasable upon the exercise of this
Warrant are subject to adjustment from time to time upon the occurrence of any
of the events specified in this Section 4. For the purpose of this
Section 4, “Common Stock” means shares now or hereafter authorized of any class
of common stock of the Company, however designated, that has the right to
participate in any distribution of the assets or earnings of the Company without
limit as to per share amount (excluding, and subject to any prior rights of, any
class or series of preferred stock).
(a) In
case the Company shall (i) pay a dividend or make a distribution in shares of
Common Stock to holders of shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its shares of Common Stock other securities
of the Company, then the Exercise Price in effect at the time of the record date
for such dividend or on the effective date of such subdivision, combination or
reclassification, and/or the number and kind of securities issuable on such
date, shall be proportionately adjusted so that the Holder of the Warrant
thereafter exercised shall be entitled to receive the aggregate number and kind
of shares of Common Stock (or such other securities other than Common Stock) of
the Company, at the same aggregate Exercise Price, that, if such Warrant had
been exercised immediately prior to such date, the Holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall
occur.
(b) In
case the Company shall fix a record date for the making of a distribution to all
holders of Common Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the surviving corporation) of
cash, evidences of indebtedness or assets, or subscription rights or warrants,
the Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the Fair Market
Value per share of Common Stock on such record date, less the amount
of cash so to be distributed or the Fair Market Value (as determined in good
faith by, and reflected in a formal resolution of, the board of directors of the
Company) of the portion of the assets or evidences of indebtedness so to be
distributed, or of such subscription rights or warrants, applicable to one share
of Common Stock, and the denominator of which shall be the Fair Market Value per
share of Common Stock. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the Exercise Price shall again be adjusted to be the Exercise Price
which would then be in effect if such record date had not been
fixed.
(c) Notwithstanding
any provision herein to the contrary, no adjustment in the Exercise Price shall
be required unless such adjustment would require an increase or decrease of at
least 1% in the Exercise Price; provided, however, that any
adjustments which by reason of this Section 4(c) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 4 shall be made to
the nearest cent or the nearest one-hundredth of a share, as the case may
be.
3
(d) In
the event that at any time, as a result of an adjustment made pursuant to
Section 4(a) above, the Holder of any Warrant thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than shares
of Common Stock, thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in this Section 4, and the other
provisions of this Warrant shall apply on like terms to any such other
shares.
(e) Fundamental
Transactions. If, at any time while this
Warrant is outstanding, (1) the Company effects any merger or consolidation of
the Company with or into another company, (2) the Company effects any sale of
all or substantially all of its assets in one or a series of related
transactions, (3) any tender offer or exchange offer (whether by the Company or
another company or person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other securities,
cash or property, or (4) the Company effects any reclassification of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental Transaction”), then the Holder shall have
ninety days the right thereafter to receive, upon exercise of this Warrant, the
same amount and kind of securities, cash or property as it would have been
entitled to receive upon the occurrence of such Fundamental Transaction if it
had been, immediately prior to such Fundamental Transaction, the holder of the
number of Common Stock then issuable upon exercise in full of this Warrant (the
“Alternate Consideration”). If the Alternate Consideration values this Warrant
at a price below the Exercise Price, the Holder shall be entitled to a cash
payment equal to the value of this Warrant as determined by the Black-Scholes
option pricing formula. For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted to apply to
such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders
of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the
same choice as to the Alternate Consideration it receives upon any exercise of
this Warrant following such Fundamental Transaction. At the Holder’s
option and request, any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new warrant substantially in
the form of this Warrant and consistent with the foregoing provisions and
evidencing the Holder’s right to purchase the Alternate Consideration for the
aggregate Exercise Price upon exercise thereof. Any such successor or
surviving entity shall be deemed to be required to comply with the provisions of
this paragraph (c) and shall insure that the Warrant (or any such replacement
security) will be similarly adjusted upon any subsequent transaction analogous
to a Fundamental Transaction.
(f) In
case any event shall occur as to which the other provisions of this Section 4
are not strictly applicable but the failure to make any adjustment would not
fairly protect the purchase rights represented by this Warrant in accordance
with the essential intent and principles hereof, then, in each such case, the
Company shall effect such adjustment, on a basis consistent with the essential
intent and principles established in this Section 4, as may be necessary to
preserve, without dilution, the purchase rights represented by this
Warrant.
4
(g) Notice of
Adjustments. Upon the occurrence of each adjustment pursuant
to this Section 4, the Company at its expense will promptly compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted
Exercise Price and adjusted number or type of Common Stock or other securities
issuable upon exercise of this Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based. Upon written request, the
Company will promptly deliver a copy of each such certificate to the Holder and
to the Company’s Transfer Agent.
5.
Legend. If there is
not a current effective registration statement in effect and the exemption
provided by Rule 144 under the Securities Act is unavailable when exercised, the
stock certificates shall bear the following legend.
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933 (the “Securities Act”), and may not be offered for sale
or sold except pursuant to (i) an effective registration statement under the
Securities Act, or (ii) an opinion of counsel, if such opinion and counsel shall
be reasonably satisfactory to counsel to the issuer, that an exemption from
registration under the Securities Act is available.”
6.
Reservation of Common
Stock. The Company covenants that it will at all times reserve
and keep available out of the aggregate of its authorized but unissued and
otherwise unreserved Common Stock, solely for the purpose of enabling it to
issue Common Stock upon exercise of this Warrant as herein provided, the number
of shares of Common Stock which are then issuable and deliverable upon the
exercise of this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking into account
the adjustments and restrictions of Section 4). The Company covenants that all
Common Stock so issuable and deliverable shall, upon issuance and the payment of
the applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable.
7.
Replacement of
Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary and
reasonable indemnity (which may include a surety bond), if
requested. Applicants for a New Warrant under such circumstances
shall also comply with such other reasonable regulations and procedures and pay
such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation
of this Warrant, then the Holder shall deliver such mutilated Warrant to the
Company as a condition precedent to the Company's obligation to issue the New
Warrant.
8.
Charges,
Taxes and Expenses. Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without charge to the
Holder for any issue or transfer tax, withholding tax, transfer agent fee or
other incidental tax or expense in respect of the issuance of such certificates,
all of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for
Common Stock or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may arise as a
result of holding or transferring this Warrant or receiving Common Stock upon
exercise hereof.
5
9. Notices to
Holder. Upon any adjustment of the Exercise Price (or number
of shares of Common Stock issuable upon the exercise of this Warrant) pursuant
to Section 4, the Company shall promptly thereafter cause to be given to the
Holder written notice of such adjustment. Such notice shall include
the Exercise Price (and/or the number of shares of Common Stock issuable upon
the exercise of this Warrant) after such adjustment, and shall set forth in
reasonable detail the Company’s method of calculation and the facts upon which
such calculations were based. Where appropriate, such notice shall be
given in advance and included as a part of any notice required to be given under
the other provisions of this Section 9.
In the event of (a) any fixing by the
Company of a record date with respect to the holders of any class of securities
of the Company for the purpose of determining which of such holders are entitled
to dividends or other distributions, or any rights to subscribe for, purchase or
otherwise acquire any shares of capital stock of any class or any other
securities or property, or to receive any other right, (b) any capital
reorganization of the Company, or reclassification or recapitalization of the
capital stock of the Company or any transfer of all or substantially all of the
assets or business of the Company to, or consolidation or merger of the Company
with or into, any other entity or person, or (c) any voluntary or involuntary
dissolution or winding up of the Company, then and in each such event the
Company will give the Holder a written notice specifying, as the case may be (i)
the record date for the purpose of such dividend, distribution, or right, and
stating the amount and character of such dividend, distribution, or right; or
(ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, conveyance, dissolution,
liquidation, or winding up is to take place and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such capital stock or
securities receivable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock securities) for
securities or other property deliverable upon such event. Any such
notice shall be given at least 10 days prior to the earliest date therein
specified.
10. No Rights as a
Shareholder. This Warrant does not entitle the Holder to any
voting rights or other rights as a stockholder of the Company, nor to any other
rights whatsoever except the rights herein set forth. Provided, however, the Company
shall not close any merger arising out of any merger agreement in which it is
not the surviving entity, or sell all or substantially all of its assets unless
the Company shall have first provided the Holder with 20 days’ prior written
notice.
11. Additional Covenants of the
Company. If upon issuance of any shares for which this Warrant
is exercisable, the Common Stock is listed for trading or trades on any national
securities exchange including The Nasdaq Stock Market upon the issuance, the
Company shall, at its expense, promptly obtain and maintain the listing or
qualifications for trading of such shares.
The Company shall comply with the
reporting requirements of Sections 13 and 15(d) of the Securities Exchange Act
of 1934 for so long as and to the extent that such requirements apply to the
Company.
6
The Company shall not, by amendment of
its Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issuance or sale of securities, or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant. Without limiting the generality of the
foregoing, the Company (a) will at all times reserve and keep available, solely
for issuance and delivery upon exercise of this Warrant, shares of Common Stock
issuable from time to time upon exercise of this Warrant, (b) will not increase
the par value of any shares of Common Stock issuable upon exercise of this
Warrant above the amount payable therefor upon such exercise, and (c) will take
all such actions as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable stock.
12. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Company, the Holder and their respective successors and permitted
assigns.
13. Severability. Every
provision of this Warrant is intended to be severable. If any term or provision
hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the remainder of this Warrant.
14. Governing Law. This
Warrant shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to choice of law considerations.
15. Attorneys’ Fees. In
any action or proceeding brought to enforce any provision of this Warrant, the
prevailing party shall be entitled to recover reasonable attorneys’ fees in
addition to its costs and expenses and any other available
remedies.
16. Entire Agreement. This Warrant
(including the Exhibits attached hereto) constitutes the entire understanding
between the Company and the Holder with respect to the subject matter hereof,
and supersedes all prior negotiations, discussions, agreements and
understandings relating to such subject matter.
17. Good Faith. The Company will
not, by amendment of its Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order
to protect the rights of the holder of this Warrant against such
impairment.
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officer as of the date first set forth above.
7
|
By:
|
||
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Chief
Executive Officer
|
||
8
Exhibit
A
SUBSCRIPTION
FORM
(To be
Executed by the Holder to Exercise the Rights To Purchase Common Stock Evidenced
by the Within Warrant)
The
undersigned hereby irrevocably subscribes for _______ shares of the Common Stock
(the “Stock”) of interCLICK,
Inc. (the “Company”) pursuant to and in accordance with the terms and
conditions of the attached Warrant (the “Warrant”), and hereby makes payment of
$_______ therefore by tendering cash, wire transferring or delivering a
certified check or bank cashier’s check, payable to the order of the
Company. The undersigned requests that a certificate for the Stock be
issued in the name of the undersigned and be delivered to the undersigned at the
address stated below. If the Stock is not all of the shares
purchasable pursuant to the Warrant, the undersigned requests that a new Warrant
of like tenor for the balance of the remaining shares purchasable thereunder be
delivered to the undersigned at the address stated below.
In
connection with the issuance of the Stock, I hereby represent to the Company
that I am acquiring the Stock for my own account for investment and not with a
view to, or for resale in connection with, a distribution of the shares within
the meaning of the Securities Act of 1933 (the “Securities Act”).
I
understand that if at this time the Stock has not been registered under the
Securities Act, I must hold such Stock indefinitely unless the Stock is
subsequently registered and qualified under the Securities Act or is exempt from
such registration and qualification. I shall make no transfer or disposition of
the Stock unless (a) such transfer or disposition can be made without
registration under the Securities Act by reason of a specific exemption from
such registration and such qualification, or (b) a registration statement has
been filed pursuant to the Securities Act and has been declared effective with
respect to such disposition. I agree that each certificate
representing the Stock delivered to me shall bear substantially the same as set
forth on the front page of the Warrant.
I further
agree that the Company may place stop transfer orders with its transfer agent
same effect as the above legend. The legend and stop transfer notice
referred to above shall be removed only upon my furnishing to the Company of an
opinion of counsel (reasonably satisfactory to the Company) to the effect that
such legend may be removed.
|
Date:_______________________________
|
Signed:
_______________________________
|
|
Print
Name:____________________________
|
|
|
Address:______________________________
|
|
|
Date:_______________________________
|
|
|
Signed:
_______________________________
|
|
|
Print
Name:____________________________
|
|
|
Address:______________________________
|
Exhibit
B
ASSIGNMENT
(To be
Executed by the Holder to Effect Transfer of the Attached Warrant)
For Value
Received __________________________ hereby sells, assigns and transfers to
_________________________ the Warrant attached hereto and the rights represented
thereby to purchase _________ shares of Common Stock in accordance with the
terms and conditions hereof, and does hereby irrevocably constitute and appoint
___________________________ as attorney to transfer such Warrant on the books of
the Company with full power of substitution.
|
Dated:________________________
|
Signed:
|
||
|
Please
print or typewrite
name
and address of
assignee:
|
Please
insert Social Security
or
other Tax Identification
Number
of
Assignee:
|
||
|
Dated:________________________
|
Signed:
|
||
|
Please
print or typewrite
name
and address of
assignee:
|
Please
insert Social Security
or
other Tax Identification
Number
of
Assignee:
|
||