EXHIBIT 4.4
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OR CONVERSION HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD,
DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT
(I) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (II) AN OPINION OF
COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR (III)
RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION
TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED.
NO. USWEB CORPORATION , 199
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SERIES C PREFERRED STOCK PURCHASE WARRANT
This certifies that, for value received, Warrantholder (together with any
registered assignee(s), the "Holder") is entitled, upon the terms and subject to
the conditions hereinafter set forth, at any time on or after the date hereof
and at or prior to 11:59 p.m., Pacific Time, on June 2, 2000 (the "Expiration
Time"), but not thereafter, to acquire from USWeb Corporation, a Utah
corporation (the "Company"), in whole or from time to time in part, up to
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shares fully paid and nonassessable shares of Series C Preferred Stock of the
Company ("Warrant Stock") at a purchase price per share (the "Exercise Price")
of . Such number of shares, type of security and Exercise Price are subject
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to adjustment as provided herein, and all references to "Warrant Stock" and
"Exercise Price" herein shall be deemed to include any such adjustment or series
of adjustments.
1. TERM AND EXERCISABILITY
1.1 Termination and Expiration. If not earlier exercised, the
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Warrant shall expire at the Expiration Time.
1.2 Exception for Change of Control. Notwithstanding the foregoing,
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in the event of a Change of Control (as defined below), the Company shall give
the Holder not less than fifteen (15) business days notice of the record date
for determining the shareholders of the Company entitled to vote on (or
otherwise approve) the Change of Control; the Company shall provide the Holder
with all information with respect to the Change of Control that is otherwise
provided to shareholders of the Company at such time and from time to time
during the pendency of the Change of Control, including (but not limited to) the
proposed price to be paid in the proposed Change of Control; the Holder shall
have the right to exercise the Warrant on or prior to the record date of
shareholders eligible to vote (or otherwise approve) with respect to the
proposed Change of Control; if the Warrant is not exercised on or prior to such
record date, the Warrant shall expire upon the
occurrence of the closing of the Change of Control. A "Change of Control" shall
mean the occurrence of any of the following events:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) other than SOFTBANK Corporation
and/or any of its affiliates becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting power represented
by the Company's then outstanding voting securities; or
(b) A merger or consolidation of the Company with any other
corporation or business entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; or
(c) Effectiveness of an agreement for the sale, lease, exchange,
disposition or other transfer by the Company of all or substantially all of the
Company's assets.
2. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time and from time to time
at or prior to the expiration or termination hereof by the surrender of this
Warrant and the Notice of Exercise form attached hereto duly executed to the
headquarters office of the Company at the address set forth on the signature
page hereof (or such other office or agency of the Company as it may designate
by notice in writing to the registered holder hereof at the address of such
holder appearing on the books of the Company), and upon payment of the Exercise
Price for the shares thereby purchased (by cash or by check or bank draft
payable to the order of the Company or by cancellation of indebtedness of the
Company to the holder hereof, if any, at the time of exercise in an amount equal
to the purchase price of the shares thereby purchased); whereupon the holder of
this Warrant shall be entitled to receive from the Company a stock certificate
in proper form representing the number of shares of Warrant Stock so purchased,
and a new Warrant in substantially identical form and dated as of such exercise
for the purchase of that number of shares of Warrant Stock equal to the
difference, if any, between the number of shares of Warrant Stock subject hereto
and the number of shares of Warrant Stock as to which this Warrant is so
exercised.
3. CONVERSION OF WARRANT
The Holder shall have the right to convert this Warrant, in whole or in
part, at any time (including, but not limited to, upon a Change of Control) and
from time to time at or prior to the expiration or termination hereof by the
surrender of this Warrant and the Notice of Conversion form attached hereto duly
executed to the headquarters office of the Company at the address set forth on
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the signature page hereof (or such other office or agency of the Company as it
may designate by notice in writing to the Holder at the address of such Holder
appearing on the books of the Company), into shares of Warrant Stock as provided
in this Section 3. Upon exercise of this conversion right, the Holder shall be
entitled to receive that number of shares of the Company's Series C Preferred
Stock computed by using the following formula:
X (A-B)
Y = --------
A
Y = the number of shares of Series C Preferred Stock to be issued to the Holder.
A = the Fair Market Value (as defined below) of one share of the Company's
Series C Preferred Stock on the date of conversion of this Warrant.
B = the Exercise Price.
X = the number of shares of Warrant Stock to be converted into shares of Series C
Preferred Stock pursuant to this Section 3.
If the above calculation results in a negative number, then no shares of
Warrant Stock shall be issued or issuable upon conversion of this Warrant.
"Fair Market Value" of a share of Warrant Stock shall mean:
(a) if the conversion right is being exercised in connection with
the initial public offering (the "IPO") of the Company's Common Stock
(the "Common Stock"), the IPO price per share (before deducting
commissions, discounts or expenses) at which the Common Stock is sold
to the public in the IPO, multiplied by the number of shares of Common
Stock into which a share of Series C Preferred Stock is convertible at
the time of the exercise of the conversion right (the "Conversion
Rate").
(b) if the conversion right is being exercised in connection with
a Change of Control, the price per share to be paid to the holders of
the Company's Series C Preferred Stock by the acquiring entity, or, if
no such price per share has been established, the price per share to
be paid to the holders of the Company's Common Stock multiplied by the
Conversion Rate.
(c) if the conversion right is being exercised after the IPO
(other than in connection with a Change of Control), then (i) if the
Company's Common Stock is listed on a national securities exchange,
the average of last sale prices for the Company's Common Stock for the
15 trading days prior to the date the Company receives the Warrant and
duly
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executed Notice of Conversion (the "Notice Receipt Date"), multiplied
by the Conversion Rate, or (ii) if the Company's Common Stock is
listed on The Nasdaq Stock Market, the average of the average bid and
ask price for each of the fifteen (15) trading days prior to the
Notice Receipt Date, multiplied by the Conversion Rate.
(d) in all other cases, the fair value as determined in good
faith by the Company's Board of Directors.
Upon conversion of this Warrant in accordance with this Section 3, the
Holder hereof shall be entitled to receive a certificate for the number of
shares of Warrant Stock determined in accordance with the foregoing, and a new
Warrant in substantially identical form and dated as of such conversion for the
purchase of that number of shares of Warrant Stock equal to the difference, if
any, between the number of shares of Warrant Stock subject hereto and the number
of shares of Warrant Stock as to which this Warrant is so converted.
4. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder or issuable upon conversion
hereof shall be delivered to the Holder within a reasonable time after the date
on which this Warrant shall have been exercised or converted in accordance with
the terms hereof. The Company agrees that the shares so issued shall be and
shall for all purposes be deemed to have been issued to such holder as the
record owner of such shares as of the close of business on the date on which
this Warrant shall have been exercised or converted in accordance with the terms
hereof. No fractional shares or scrip representing fractional shares shall be
issued upon the exercise or conversion of this Warrant. With respect to any
fraction of a share called for upon the exercise or conversion of this Warrant,
an amount equal to such fraction multiplied by the Fair Market Value of a share
of Warrant Stock on the date of exercise or conversion shall be paid in cash or
check to the Holder.
5. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise or
conversion of this Warrant shall be made without charge to the Holder for any
issue or transfer tax or other incidental expense in respect of the issuance of
such certificate, all of which taxes and expenses shall be paid by the Company,
and such certificates shall be issued in the name of the Holder or in such name
or names as may be directed by the Holder provided, however, that in the event
certificates for shares of Warrant Stock are to be issued in a name other than
the name of the Holder, this Warrant when surrendered for exercise or conversion
shall be accompanied by the Assignment Form attached hereto duly executed by the
Holder.
6. NO RIGHTS AS SHAREHOLDER
This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise or conversion
hereof.
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7. NO ASSIGNMENT
This Warrant may not be sold or otherwise transferred (including by gift or
operation of law) without the prior written consent of the Company, which prior
written consent shall not be unreasonably withheld.
8. MARKET STAND-OFF AGREEMENT
The Holder hereby agrees that if so requested by the Company or any
representative of the underwriters in connection with any registration of the
offering of any shares of the Company under the Securities Act of 1933, as
amended (the "Securities Act"), the Holder shall not sell or otherwise transfer
any shares or other securities of the Company during the 180-day period
following the date of the final Prospectus contained in a registration statement
of the Company filed under the Securities Act (the "IPO Prospectus"); provided,
however, that such restriction shall only apply to the first registration
statement of the Company to become effective under the Securities Act which
includes securities to be sold on behalf of the Company to the public in an
underwritten public offering under the Securities Act. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such 180-day period.
9. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the Holder at
the headquarters of the Company, for a new Warrant in substantially identical
form and dated as of such exchange. The Company shall maintain at its
headquarters office a registry showing the name and address of the registered
holder of this Warrant. This Warrant may be surrendered for exchange, transfer,
exercise or conversion, in accordance with its terms, at such headquarters
office, and the Company shall be entitled to rely in all respects, prior to
written notice to the contrary, upon such registry.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the Holder, in lieu thereof, a
new warrant in substantially identical form, dated as of such cancellation and
reissuance.
11. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding business day.
12. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES, EXERCISE PRICE
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The type and number of securities of the Company issuable upon exercise of
this Warrant and the Exercise Price are subject to adjustment as set forth
below:
(a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations,
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Automatic Conversion, etc. The Exercise Price and the number and type of
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securities or other property issuable upon exercise of this Warrant shall be
appropriately and proportionately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization, automatic
conversion of the Series C Preferred Stock, redemption or other similar event
affecting the number or character of outstanding shares of Warrant Stock, other
than an adjustment to the conversion price of the Warrant Stock pursuant to the
antidilution provisions set forth in the Company's Articles of Incorporation, so
that the number and type of securities or other property issuable upon exercise
of this Warrant shall be equal to that which would have been issuable with
respect to the number of shares of Warrant Stock subject hereto at the time of
such event, had such shares of Warrant Stock then been outstanding.
(b) Certificate as to Adjustments. In case of any adjustment in the
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Exercise Price or number and type of securities issuable on the exercise of this
Warrant, the Company will promptly give written notice thereof to the Holder in
the form of a certificate, certified and confirmed by an officer of the Company,
setting forth such adjustment and showing in reasonable detail the facts upon
which adjustment is based.
13. NOTICES OF RECORD DATE, ETC.
In the event of:
(a) any taking by the Company of a record of the holders of Warrant
Stock or securities into which the Warrant Stock is convertible for the purpose
of determining the holders thereof who are entitled to receive any dividend or
other distribution,
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any Change of Control,
(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
(d) a sale of substantially all of the outstanding capital stock of
the Company or the issuance of new shares representing the majority of the
Company's right to vote, or
(e) the IPO,
then and in each such event the Company will mail to the Holder a notice
specifying the record date for voting or the date of closing , as applicable, of
any event (a)-(e) above. Such notice shall be delivered to the Holder at least
15 days prior to the date of the relevant event.
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14. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Holder that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Series C Preferred Stock (or other
securities for which this Warrant becomes exercisable pursuant to Section 12(a)
above) a sufficient number of shares to provide for the issuance of Warrant
Stock upon the exercise or conversion of this Warrant;
(b) during the period this Warrant or the Warrant Stock issuable
hereunder is outstanding, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon conversion of the Warrant Stock issuable upon exercise or
conversion of this Warrant;
(c) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the shares of
Warrant Stock issuable upon exercise or conversion of this Warrant;
(d) the Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Stock hereunder, to
issue the Common Stock issuable upon conversion of the Warrant Stock and to
carry out and perform its obligations under the terms of this Warrant; and
(e) all corporate action on the part of the Company, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Company, the authorization, sale, issuance
and delivery of the Warrant Stock and the Common Stock issuable upon conversion
of the Warrant Stock, and the performance of the Company's obligations hereunder
has been taken;
(f) the Warrant Stock and the Common Stock issuable upon conversion of
the Warrant Stock, when issued in compliance with the provisions of this Warrant
and the Company's Articles of Incorporation, will be validly issued, fully paid
and nonassessable, and free of any liens or encumbrances (other than liens or
encumbrances created by or imposed upon the holder of the Warrant Stock), and
will be issued in compliance with all applicable federal and state securities
laws; and
(g) the issuance of the Warrant Stock and the Common Stock issuable
upon conversion of the Warrant Stock will not be subject to any preemptive
rights, rights of first refusal or similar rights (other than such rights as are
created by or imposed upon the holder of the Warrant Stock).
15. GOVERNING LAW
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This Warrant shall be governed by and construed in accordance with the laws
of the State of California.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by a
duly authorized officer.
Dated: May __, 1997. USWEB CORPORATION
Signature:
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Name:
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Title:
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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NOTICE OF EXERCISE
To: USWeb Corporation
(1) The undersigned hereby elects to purchase __________ shares of Series C
Preferred Stock of USWeb Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full.
(2) Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
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(Name)
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(Address)
(3) The undersigned represents that the aforesaid shares are being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares, except in
compliance with applicable federal and state securities laws.
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(Date) (Signature)
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NOTICE OF CONVERSION
To: USWeb Corporation
(1) The undersigned hereby elects to convert that portion of the attached
Warrant representing the right to purchase ________ shares of Series C Preferred
Stock into such number of shares of Series C Preferred Stock of USWeb
Corporation as is determined pursuant to Section 3 of such Warrant, which
conversion shall be effected pursuant to the terms of the attached Warrant.
(2) Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
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(Name)
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(Address)
(3) The undersigned represents that the aforesaid shares are being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares, except in
compliance with applicable federal and state securities laws.
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(Date) (Signature)
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