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EXHIBIT 10.11
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND ARE
TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF A SECURITIES PURCHASE
AGREEMENT DATED AS OF APRIL 28, 2000 AMONG FUTURELINK CORP. AND CERTAIN OF ITS
STOCKHOLDERS AND THE RESTRICTIONS ON TRANSFER CONTAINED HEREIN. A COPY OF THE
ABOVE REFERENCED AGREEMENT IS ON FILE AT THE OFFICES OF FUTURELINK CORP.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT
TO PURCHASE ________ SHARES OF COMMON STOCK OF
FUTURELINK CORP.
No. ______ Dated April 28, 2000
THIS CERTIFIES THAT, for value received, _____________ or
(subject to the restrictions on transfer contained herein and the provisions of
the Securities Purchase Agreement (as hereinafter defined)) its registered
assigns (the "Holder") is entitled to purchase from Futurelink Corp., a Delaware
corporation (the "Company"), at any time or from time to time after 9:00 a.m.,
New York City time, on the date hereof and prior to 5:00 p.m., New York City
time, on April 28, 2003 (the "Expiration Date"), at the place where the Warrant
Agency (as hereinafter defined) is located, at the Exercise Price (as
hereinafter defined), the number of shares of common stock, $.0001 par value
(the "Common Stock"), of the Company specified above, all subject to adjustment
and upon the terms and conditions as hereinafter provided.
Capitalized terms used and not otherwise defined in this Warrant
shall have the meanings set forth in Article IV hereof.
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ARTICLE I
EXERCISE OF WARRANTS
1.1. Method of Exercise. To exercise this Warrant in whole or in
part, the Holder shall deliver to the Company at the Warrant Agency, (a) this
Warrant, (b) a written notice, substantially in the form of the subscription
notice attached hereto as Annex 1, of such Holder's election to exercise this
Warrant, which notice shall specify the number of shares of Common Stock to be
purchased, the denominations of the share certificate or certificates desired
and the name or names of the Eligible Holder(s) in which such certificates are
to be registered, and (c) payment of the Exercise Price with respect to such
shares of Common Stock. Such payment may be made, at the option of the Holder,
by cash, money order, certified or bank cashier's check or wire transfer;
provided, however, that the Holder shall have the right (the "Right of Cashless
Exercise"), at its election, in lieu of delivering the Exercise Price in cash,
to instruct the Company in the form of subscription notice to retain, in payment
of the Exercise Price, a number of shares of Common Stock (the "Payment Shares")
equal to the quotient of the aggregate Exercise Price of the shares as to which
this Warrant is then being exercised divided by the Average Closing Price as of
the date of exercise and to deduct the Payment Shares from the shares to be
delivered to the Holder.
The Company shall, as promptly as practicable and in any event
within five (5) Business Days thereafter, execute and deliver or cause to be
executed and delivered, in accordance with such subscription notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said notice (less the number of Payment Shares, if
applicable). The share certificate or certificates so delivered shall be in such
denominations as may be specified in such notice (or, if such notice shall not
specify denominations, one certificate shall be issued) and shall be issued in
the name of the Holder or such other name or names of Eligible Holder(s) as
shall be designated in such notice. Such certificate or certificates shall be
deemed to have been issued, and such Holder or any other person so designated to
be named therein shall be deemed for all purposes to have become holders of
record of such shares, as of the date the aforementioned notice is received by
the Company. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificate or certificates, deliver to
the Holder a new Warrant evidencing the right to purchase the remaining shares
of Common Stock called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant. The Company shall pay all expenses
payable in connection with the preparation, issuance and delivery of share
certificates and new Warrants as contemplated by Section 2.6 below (other than
transfer or similar taxes in connection with the transfer of securities), except
that, if share certificates or new Warrants shall be registered in a name or
names other than the name of the Holder, funds sufficient to pay all transfer
taxes payable as a result of such transfer shall be paid by the Holder at the
time of delivering the aforementioned notice or promptly upon receipt of a
written request of the Company for payment.
If this Warrant shall be surrendered for exercise within any
period during which the transfer books for shares of the Common Stock of the
Company or other securities purchasable upon the exercise of this Warrant are
closed for any purpose, the Company shall not
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be required to make delivery of certificates for the securities purchasable
upon such exercise until the date of the reopening of said transfer books.
1.2. Shares To Be Fully Paid and Nonassessable. All shares of
Common Stock issued upon the exercise of this Warrant shall be validly issued,
fully paid and nonassessable.
1.3. No Fractional Shares To Be Issued. The Company shall not be
required to issue fractions of shares of Common Stock upon exercise of this
Warrant. If any fraction of a share would, but for this Section, be issuable
upon any exercise of this Warrant, in lieu of such fractional share the Company
shall pay to the Holder, in cash, an amount equal to the same fraction of the
Average Closing Price per share of outstanding shares of Common Stock on the
Business Day immediately prior to the date of such exercise.
1.4. Securities Laws; Share Legend. The Holder, by acceptance of
this Warrant, agrees that this Warrant and all shares of Common Stock issuable
upon exercise of this Warrant will be disposed of only in accordance with the
Securities Act of 1933, as amended (the "Securities Act") and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
promulgated thereunder, as well as any restrictions contained in the Securities
Purchase Agreement. In addition to any other legend which the Company may deem
advisable under the Securities Act and applicable state securities laws, all
certificates representing shares of Common Stock (as well as any other
securities issued hereunder in respect of any such shares) issued upon exercise
of this Warrant shall be endorsed as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO, AND ARE TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE
PROVISIONS OF A SECURITIES PURCHASE AGREEMENT DATED AS OF APRIL
28, 2000, AMONG FUTURELINK CORP. AND CERTAIN OF ITS STOCKHOLDERS.
A COPY OF THE ABOVE REFERENCED AGREEMENT IS ON FILE AT THE
OFFICES OF FUTURELINK CORP.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD
OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS
NOT REQUIRED.
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel (in form and substance reasonably satisfactory to the Company) selected
by the Holder of such certificate and reasonably acceptable to the Company, the
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securities represented thereby need no longer be subject to restrictions on
resale under the Securities Act.
ARTICLE II
WARRANT AGENCY; TRANSFER, EXCHANGE AND
REPLACEMENT OF WARRANT
2.1. Warrant Agency. Until such time, if any, as an independent
agency shall be appointed by the Company to perform services described herein
with respect to this Warrant (the "Warrant Agency"), the Company shall perform
the obligations of the Warrant Agency provided herein at its principal office
address or such other address as the Company shall specify by prior written
notice to the Holder.
2.2. Ownership of Warrant. The Company may deem and treat the
person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by any person
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Article II.
2.3. Transfer of Warrant. This Warrant may only be transferred to
a purchaser subject to and in accordance with this Section 2.3, and any
attempted transfer which is not in accordance with this Section 2.3 shall be
null and void and the transferee shall not be entitled to exercise any of the
rights of the holder of this Warrant. The Company agrees to maintain at the
Warrant Agency books for the registration of such transfers of Warrants, and
transfer of this Warrant and all rights hereunder shall be registered, in whole
or in part, on such books, upon surrender of this Warrant at the Warrant Agency
in accordance with this Section 2.3, together with a written assignment of this
Warrant, substantially in the form of the assignment attached hereto as Annex 2,
duly executed by the Holder or its duly authorized agent or attorney-in-fact,
with signatures guaranteed by a bank or trust company or a broker or dealer
registered with the NASD, and funds sufficient to pay any transfer taxes payable
upon such transfer. Upon surrender of this Warrant in accordance with this
Section 2.3, the Company (subject to being satisfied that such transfer is in
compliance with Section 1.4) shall execute and deliver a new Warrant or Warrants
of like tenor and representing in the aggregate the right to purchase the same
number of shares of Common Stock in the name of the assignee or assignees and in
the denominations specified in the instrument of assignment, and this Warrant
shall promptly be canceled. Notwithstanding the foregoing, a Warrant may be
exercised by a new holder without having a new Warrant issued. The Company shall
not be required to pay any Federal or state transfer tax or charge that may be
payable in respect of any transfer of this Warrant or the issuance or delivery
of certificates for Common Stock in a name other than that of the registered
holder of this Warrant.
2.4. Division or Combination of Warrants. This Warrant may be
divided or combined with other Warrants, in connection with the partial exercise
of this Warrant, upon surrender hereof and of any Warrant or Warrants with which
this Warrant is to be combined at
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the Warrant Agency, together with a written notice specifying the names and
denominations in which the new Warrant or Warrants are to be issued, signed by
the holders hereof and thereof or their respective duly authorized agents or
attorneys-in-fact. Subject to compliance with Section 2.3 as to any transfer
which may be involved in the division or combination, the Company shall execute
and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to
be divided or combined in accordance with such notice.
2.5. Loss, Theft, Destruction of Warrant Certificates. Upon
receipt by the Company of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and, in the case of any
such loss, theft or destruction, upon receipt of indemnity or security (in
customary form) reasonably satisfactory to the Company, or, in the case of any
such mutilation, upon surrender and cancellation of such Warrant and upon
reimbursement of the Company's reasonable incidental expenses, the Company will
make and deliver, in lieu of such lost, stolen, destroyed or mutilated Warrant,
a new Warrant of like tenor and representing the right to purchase the same
aggregate number of shares of Common Stock.
2.6. Expenses of Delivery of Warrants. Except as otherwise
expressly provided herein, the Company shall pay all expenses (other than
transfer taxes as described in Section 2.3) and other charges payable in
connection with the preparation, issuance and delivery of Warrants hereunder and
shares of Common Stock upon the exercise hereof.
ARTICLE III
ANTIDILUTION PROVISIONS
3.1. Adjustments Generally. The Exercise Price and the number of
shares of Common Stock (or other securities or property) issuable upon exercise
of this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Article III.
3.2. Common Share Reorganization. If the Company shall subdivide
its outstanding shares of Common Stock into a greater number of shares or
consolidate its outstanding shares of Common Stock into a smaller number of
shares (any such event being called a "Common Share Reorganization"), then (a)
the Exercise Price shall be adjusted, effective immediately after the record
date at which the holders of shares of Common Stock are determined for purposes
of such Common Share Reorganization, to a price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
on such record date before giving effect to such Common Share Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding after giving effect to such Common Share Reorganization, and (b) the
number of shares of Common Stock subject to purchase upon exercise of this
Warrant shall be adjusted, effective at such time, to a number determined by
multiplying the number of shares of Common Stock subject to purchase immediately
before such Common Share Reorganization by a fraction, the numerator of which
shall be the number of shares outstanding after giving effect to such Common
Share Reorganization and the
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denominator of which shall be the number of shares of Common Stock outstanding
immediately before such Common Share Reorganization.
3.3. Common Share Distribution. (a) If, other than in an Exempt
Distribution, the Company shall issue or otherwise sell any shares of its Common
Stock (any such issuance or sale other than an Exempt Distribution, including
any event described in paragraphs (b) and (c) of this Section 3.3, hereafter
being called a "Common Share Distribution"), the Exercise Price shall be reduced
to the price (calculated to the nearest cent) determined by multiplying the
Exercise Price in effect immediately prior to such Common Share Distribution by
a fraction, the numerator of which shall be the sum of (A) the number of shares
of Common Stock outstanding immediately prior to such Common Share Distribution
multiplied by the Appraised Fair Market Value on the date of such Common Share
Distribution plus (B) the consideration received by the Company upon such Common
Share Distribution, and the denominator of which shall be the product of (1) the
total number of shares of Common Stock outstanding immediately after such Common
Share Distribution, multiplied by (2) the Appraised Fair Market Value on the
date of such Common Share Distribution.
No adjustment of the Exercise Price shall be made in an amount
less than 1% of such Exercise Price, but any such lesser adjustment shall be
carried forward and shall be made at the time of, and together with, the next
subsequent adjustment which together with any adjustments so carried forward
shall aggregate an amount equal to or greater than 1% of such Exercise Price.
If any Common Share Distribution shall require an adjustment to
the Exercise Price pursuant to the foregoing provisions of this Section 3.3,
then effective at the time such adjustment is made, the number of shares of
Common Stock subject to purchase upon exercise of this Warrant shall be
increased to a number determined by multiplying the number of shares of Common
Stock subject to purchase immediately before such Common Share Distribution by a
fraction, the numerator of which shall be the number of shares outstanding
immediately after giving effect to such Common Share Distribution and the
denominator shall be the sum of the number of shares outstanding immediately
before giving effect to such Common Share Distribution plus the number of shares
of Common Stock which the aggregate consideration received by the Company with
respect to such Common Share Distribution would purchase at the Appraised Fair
Market Value on the date of such Common Share Distribution (before giving effect
to such Common Share Distribution). The provisions of this Section 3.3 shall not
operate to increase the Exercise Price or reduce the number of shares of Common
Stock subject to purchase upon exercise of this Warrant.
(b) If, other than in an Exempt Distribution, the Company shall
issue, sell, distribute or otherwise grant in any manner (whether directly or by
assumption in a merger or otherwise) any rights to subscribe for or to purchase,
or any warrants or options for the purchase of, Common Stock or any stock or
securities convertible into or exchangeable for Common Stock (such rights,
warrants or options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible Securities"),
whether or not such Options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per share for
which shares of Common Stock are issuable upon
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exercise of such Options or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the aggregate amount, if any, received or
receivable by the Company as consideration for the granting of such Options,
plus the minimum aggregate amount of additional consideration payable to the
Company upon the exercise of all such Options, plus, in the case of Options to
acquire Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options) shall be less than the Appraised
Fair Market Value on the date of granting such Options (before giving effect to
such grant), then, for purposes of paragraph (a) above, the total maximum number
of shares of Common Stock issuable upon the exercise of such Options or upon
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such Options shall be deemed to have been issued as of the date of
granting of such Options and thereafter shall be deemed to be outstanding and
the Company shall be deemed to have received as consideration such price per
share, determined as provided above, therefor, provided, however upon the
expiration or termination of Convertible Securities or Options, if any thereof
shall not have been converted, exchanged or exercised, the number of shares of
Common Stock deemed to be issued and outstanding pursuant to this subsection (b)
shall be reduced by such number of shares as to which Convertible Securities or
Options shall have expired or terminated unexercised, and such shares shall no
longer be deemed to be issued and outstanding, and the Exercise Price then in
effect shall be readjusted and thereafter be the price which it would have been
had adjustment been made on the basis of the issuance only of shares actually
issued pursuant to such Convertible Securities or Options. Except as otherwise
provided in paragraph (d) below, no additional adjustment of the Exercise Price
shall be made upon the actual exercise of such Options or upon conversion or
exchange of such Convertible Securities.
(c) If, other than in an Exempt Distribution, the Company shall
issue, sell or otherwise distribute (whether directly or by assumption in a
merger or otherwise) any Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable, and the price per
share for which shares of Common Stock are issuable upon such conversion or
exchange (determined by dividing (i) the aggregate amount received or receivable
by the Company as consideration for the issue, sale or distribution of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities) shall be
less than the Appraised Fair Market Value on the date of such issue, sale or
distribution (before giving effect to such issue, sale or distribution), then,
for purposes of paragraph (a) above, the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such Convertible
Securities shall be deemed to have been issued as of the date of the issue, sale
or distribution of such Convertible Securities and thereafter shall be deemed to
be outstanding and the Company shall be deemed to have received as consideration
such price per share, determined as provided above, therefor, provided, however
upon the expiration or termination of Convertible Securities or Options, if any
thereof shall not have been converted, exchanged or exercised, the number of
shares of Common Stock deemed to be issued and outstanding pursuant to this
subsection (c) shall be reduced by such number of shares as to which
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Convertible Securities or Options shall have expired or terminated unexercised,
and such shares shall no longer be deemed to be issued and outstanding, and the
Exercise Price then in effect shall be readjusted and thereafter be the price
which it would have been had adjustment been made on the basis of the issuance
only of shares actually issued pursuant to such Convertible Securities or
Options. Except as otherwise provided in paragraph (d) below, no additional
adjustment of the Exercise Price shall be made upon the actual conversion or
exchange of such Convertible Securities, and, if any such issue, sale or
distribution of such Convertible Securities is made upon exercise of any Options
to purchase any such Convertible Securities for which adjustments to the
Exercise Price have been or are to be made pursuant to other provisions of this
Section 3.3, no further adjustment of the Exercise Price shall be made by reason
of such issue, sale or distribution.
(d) If the purchase price provided for in any Option referred to
in paragraph (b) above, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in paragraph
(b) or (c) above, or the rate at which any Convertible Securities referred to in
paragraph (b) or (c) above are convertible into or exchangeable for Common Stock
shall change at any time (other than under or by reason of provisions designed
to protect against dilution upon an event which results in a related adjustment
pursuant to this Article III), the Exercise Price then in effect shall forthwith
be readjusted (effective only with respect to any exercise of this Warrant after
such readjustment) to the Exercise Price which would then be in effect had the
adjustment made upon the issue, sale, distribution or grant of such Options or
Convertible Securities been made based upon such changed purchase price,
additional consideration or conversion rate, as the case may be; provided,
however, that such readjustment shall give effect to such change only with
respect to such Options and Convertible Securities as then remain outstanding.
(e) If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for cash, the consideration
received therefor shall be deemed to be the amount received by the Company
therefor, after deduction therefrom of any expenses incurred and any
underwriting commission or concessions paid or allowed by the Company in
connection therewith. If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for a consideration other than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the Fair Market Value of such consideration, after
deduction of any expenses incurred and any underwriting commissions or
concessions paid or allowed by the Company in connection therewith. If any
shares of Common Stock, Options or Convertible Securities shall be issued in
connection with any merger in which the Company is the surviving corporation,
the amount of consideration therefor shall be deemed to be the Fair Market Value
of such portion of the assets and business of the nonsurviving corporation as
shall be attributable to such shares of Common Stock, Option or Convertible
Securities, as the case may be. If any Options shall be issued in connection
with the issue and sale of other securities of the Company, together comprising
one integral transaction in which no specific consideration is allocated to such
Options by the parties thereto, such Options shall be deemed to have been issued
for an amount of consideration equal to the Fair Market Value thereof.
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3.4. Capital Reorganization. If there shall be any consolidation
or merger to which the Company is a party, other than a consolidation or a
merger in which the Company is a continuing corporation and which does not
result in any reclassification of, or change (other than a Common Share
Reorganization or a change in par value) in, outstanding shares of Common Stock,
or any sale or conveyance of the property of the Company as an entirety or
substantially as an entirety (any such event being called a "Capital
Reorganization"), then, effective upon the effective date of such Capital
Reorganization, the Holder shall have the right to purchase, upon exercise of
this Warrant, the kind and amount of shares of stock and other securities and
property (including cash) which the Holder would have owned or have been
entitled to receive after such Capital Reorganization if this Warrant had been
exercised immediately prior to such Capital Reorganization. As a condition to
effecting any Capital Reorganization, the Company or the successor or surviving
corporation, as the case may be, shall execute and deliver to the Holder and to
the Warrant Agency an agreement as to the Holder's rights in accordance with
this Section 3.4, providing for subsequent adjustments as nearly equivalent as
may be practicable to the adjustments provided for in this Article III. The
provisions of this Section 3.4 shall similarly apply to successive Capital
Reorganizations.
3.5. Adjustment Rules. (a) Any adjustments pursuant to this
Article III shall be made successively whenever an event referred to herein
shall occur.
(b) No adjustment shall be made pursuant to this Article III in
respect of the issuance from time to time of shares of Common Stock upon the
exercise of this Warrant.
(c) If the Company shall set a record date to determine the
holders of shares of Common Stock for purposes of a Common Stock Reorganization
or Capital Reorganization and shall legally abandon such action prior to
effecting such action, then no adjustment shall be made pursuant to this Article
III in respect of such action.
3.6. Proceeding Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Article III, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the Holder is entitled to
receive upon exercise hereof.
3.7. Notice of Dividends, Distributions and Adjustments. The
Company shall give notice to the Holder at least 15 days prior to any record
date in respect of the payment of dividends or other distributions on the Common
Stock, or in respect of any Common Share Reorganization or Capital
Reorganization describing, in each case, such event in reasonable detail and
specifying such record date. In addition, no later than 15 days after the
effective date or record date, as the case may be, of any Common Share
Reorganization, Common Share Distribution or Capital Reorganization or any other
action that requires an adjustment pursuant to this Article III or any grant,
issuance or sale covered by Section 3.9, the Company shall give notice to the
Holder of such event, describing such event in reasonable detail and specifying
the record date or effective date, as the case may be, and, if determinable, the
required adjustment and the computation thereof. If the required adjustment is
not determinable at the time of such
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notice, the Company shall give notice to the Holder of such adjustment and
computation promptly after such adjustment becomes determinable.
3.8. Dividends Not Paid Out of Earnings or Earned Surplus. In the
event the Company shall declare a dividend upon the Common Stock (other than a
dividend payable in Common Stock) payable otherwise than out of earnings or
earned surplus, determined in accordance with generally accepted accounting
principles, including the making of appropriate deductions for minority
interests, if any, in subsidiaries (herein referred to as "Liquidating
Dividends"), then, as soon as possible after the exercise of this Warrant, the
Company shall pay to the person exercising such Warrant an amount equal to the
aggregate value at the time of such exercise of all Liquidating Dividends
(including but not limited to the Common Stock which would have been issued at
the time of such earlier exercise and all other securities which would have been
issued with respect to such Common Stock by reason of stock splits, stock
dividends, mergers or reorganizations, or for any other reason). For the
purposes of this Paragraph 3.8, a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that
such earnings or earned surplus are charged an amount equal to the fair value of
such dividend as determined in good faith by the Board of Directors of the
Company.
3.9 Grant, Issue or Sale of Options, Convertible Securities, or
Rights. If at any time or from time to time the Company shall grant, issue or
sell any Options, Convertible Securities or rights to purchase property (the
"Purchase Rights") pro rata to the record holders of any class of Common Stock
of the Company and such grants, issuances or sales do not result in an
adjustment of the Purchase Price under Section 3.3 hereof, then the holder of
this Warrant shall be entitled to acquire (within thirty (30) days after the
later to occur of the initial exercise date of such Purchase Rights or receipt
by such holder of the notice concerning Purchase Rights as to which such holder
may be entitled under Paragraph 3.7) and upon the terms applicable to such
Purchase Rights either:
(i) the aggregate Purchase Rights which such holder could have
acquired if it had held the number of shares of Common Stock acquirable
upon exercise of this Warrant immediately before the grant, issuance or
sale of such Purchase Rights; provided that if any Purchase Rights were
distributed to holders of Common Stock without the payment of additional
consideration by such holders, the corresponding Purchase Rights shall
be distributed to the exercising holder of this Warrant as soon as
possible after such exercise and it shall not be necessary for the
exercising holder of this Warrant specifically to request delivery of
such rights; or
(ii) in the event that any such Purchase Rights shall have
expired or shall expire prior to the end of said thirty (30) day period,
the number of shares of Common Stock or the amount of property which
such holder could have acquired upon such exercise at the time or times
at which the Company granted, issued or sold such expired Purchase
Rights.
3.10 Adjustment by Board of Directors. If any event occurs as to
which, in the opinion of the Board of Directors of the Company, the provisions
of this Article III are not
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strictly applicable or if strictly applicable would not fairly protect the
rights of the holder of this Warrant in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance with such
essential intent and principles, so as to protect such rights as aforesaid, but
in no event shall any adjustment have the effect of increasing the Exercise
Price or decreasing the number of shares of Common Stock into which the Warrant
is exercisable as otherwise determined pursuant to any of the provisions of this
Article III except in the case of a combination of shares of a type contemplated
in Paragraph 3.2 and then in no event to an amount larger than the Exercise
Price as adjusted pursuant to Paragraph 3.2.
ARTICLE IV
DEFINITIONS
The following terms, as used in this Warrant, have the following
respective meanings:
"Appraised Fair Market Value" means, as of any date, in respect
of shares of Common Stock, the Average Closing Price, if clauses (i), (ii) or
(iii) of the definition of Average Closing Price applies or, if clause (iv) of
such definition obtains, the Fair Market Value per share of Common Stock, as
determined by a qualified independent appraiser of national standing having not
less than five (5) years' experience in the valuation of securities, the
selection of which is mutually agreed by the Holder and the Company. In all
cases where Appraised Fair Market Value is determined by an independent
appraiser, as aforesaid, one half of such appraiser's fees and expenses shall be
paid by each of the Holder and the Company. For the purposes of this definition,
the agreement of the Holders of a majority in interest of the Warrants issued
pursuant to the Securities Purchase Agreement shall be deemed to be approval of
all Holders of Warrants issued pursuant to the Securities Purchase Agreement.
"Average Closing Price" means, as of any date, (i) if shares of
Common Stock are listed on a national securities exchange, the average of the
closing sale prices per share therefor on the largest securities exchange on
which such shares are traded on the last ten (10) trading days before such date,
(ii) if such shares are listed on The Nasdaq National Market but not on any
national securities exchange, the average of the average of the closing bid and
asked prices per share therefor on The Nasdaq National Market on the last ten
(10) trading days before such date, (iii) if such shares are not listed on
either a national securities exchange or The Nasdaq National Market, the average
of the average of the closing bid and asked prices per share therefor in the
over the counter market on the last twenty (20) trading days before such date
or, (iv) if no such sales prices are available, the Fair Market Value of the
Company per share of outstanding Common Stock as of such date.
"Business Days" means each day in which banking institutions in
New York, New York are not required or authorized by law or executive order to
close.
"Capital Reorganization" has the meaning set forth in Section
3.4.
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"Common Share Distribution" has the meaning set forth in Section
3.3(a).
"Common Share Reorganization" has the meaning set forth in
Section 3.2.
"Common Stock" has the meaning set forth in the first paragraph
of this Warrant.
"Company" has the meaning set forth in the first paragraph of
this Warrant.
"Convertible Securities" has the meaning set forth in Section
3.3(b).
"Eligible Holder" means the Holder and any permitted transferee
of the Holder pursuant to and in accordance with this Warrant and the Securities
Purchase Agreement.
"Exempt Distribution" means an issuance or other sale by the
Company of any shares of its Common Stock:
(i) pursuant to a Common Share Reorganization;
(ii) (a) to the Company's officers or directors or (b) to
the Company's officers, directors or employees pursuant to employee
stock option, benefit or incentive plans established for their benefit,
whether in existence on the date hereof or approved by the Board of
Directors of the Company after the date hereof, provided that the number
of shares of Common Stock issued from and after April 21, 2000 pursuant
to all issuances and sales pursuant to this subparagraph (ii) does not
exceed, in the aggregate, ten percent (10%) of the Fully Diluted Capital
of the Company as of April 21, 2000;
(iii) at a price per share of more than the greater of (a)
the Exercise Price or (b) eighty percent (80%) of the Appraised Fair
Market Value, which in the case of an issuance in connection with a
merger or acquisition shall be measured on the date of the execution of
the definitive documentation with respect to such merger of acquisition;
(iv) upon the conversion or exercise of any options,
warrants or other convertible securities of the Company outstanding on
April 21, 2000 and disclosed on the disclosure schedules to the
Securities Purchase Agreement; or
(v) to the Holder or any Affiliate thereof other than an
issuance pursuant to the exercise of preemptive rights of such Holder.
"Exercise Price" means US$9.25 per share of Common Stock, subject
to adjustment pursuant to Article III.
"Expiration Date" has the meaning set forth in the first
paragraph of this Warrant.
"Fair Market Value" means the fair market value of the business,
property or assets in question as determined in good faith by the Board of
Directors of the Company and
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unless waived by a majority in interest of the Holders of the Warrants issued
pursuant to the Securities Purchase Agreement confirmed by an independent
nationally recognized financial advisor with expertise in valuing companies of
this type, or determined as otherwise specifically provided herein.
"Fully Diluted Capital" means, on any given date:
(i) all shares, units and other participation interests,
however denominated, of any Common Stock issued and outstanding on such
date; and
(ii) all shares, units and other participation interests,
however denominated, of any Common Stock declared as a dividend or
distribution on any Common Stock, but unpaid as of such date; and
(iii) all shares, units and other participation interests,
however denominated, of any Common Stock issuable upon exercise or
conversion of or in exchange for any option, subscription right or
convertible security, or any other contractual right, however
denominated, entitling the holder thereof to acquire from the Company
any Common Stock.
Fully Diluted Capital shall include all Common Stock issuable upon exercise of
this Warrant. With respect to any Common Stock issuable as provided in paragraph
(iii) above and which is indeterminable as to amount by virtue of any condition
or contingency thereon, Fully Diluted Capital shall include the greatest amount
of Common Stock that may reasonably be issuable thereon.
"Holder" has the meaning set forth in the first paragraph of this
Warrant.
"NASD" means The National Association of Securities Dealers, Inc.
"Options" has the meaning set forth in Section 3.3(b).
"Payment Shares" has the meaning set forth in Section 1.1.
"Right of Cashless Exercise" has the meaning set forth in Section
1.1.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission (or its successor) thereunder, all as the
same shall be in effect from time to time.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated as of April 28, 2000 by and among the Company, Pequot Private
Equity Fund II, L.P. and Pequot Endowment Fund, L.P.
"Warrant Agency" has the meaning set forth in Section 2.1.
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"Warrants" means this Warrant and the other Warrants issued
pursuant to the Securities Purchase Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Governing Law. This Warrant shall be governed in all
respects by the laws of the State of New York, without reference to its
conflicts of law principles.
5.2. Covenants To Bind Successor and Assigns. All covenants,
stipulations, promises and agreements contained in this Warrant by or on behalf
of the Company shall bind its successors and assigns, whether or not so
expressed.
5.3. Entire Agreement. This Warrant constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and no party shall be liable or bound to any other party
in any manner by any warranties, representations, or covenant except as
specifically set forth herein or therein.
5.4. Waivers and Amendments. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Holder are cumulative and not exclusive of any rights
or remedies which it would otherwise have. The provisions of this Warrant may be
amended, modified or waived with (and only with) the written consent of the
Company and the Holders of a majority in interest of the Warrants then
outstanding; provided, however, that no such amendment, modification or waiver
shall, without the written consent of the Holders of any Warrant, (a) change the
number of shares of Common Stock subject to purchase upon exercise of such
Warrant, the Exercise Price or provisions for payment thereof or (b) amend,
modify or waive the provisions of Section 5.4 or Article III of such Warrant.
Any such amendment, modification or waiver effected pursuant to
this Section shall be binding upon the Holders of all Warrants and upon the
Company, except as provided in the proviso to the last sentence of the preceding
paragraph. In the event of any such amendment, modification or waiver the
Company shall give prompt notice thereof to all holders of Warrants and, if
appropriate, notation thereof shall be made on all Warrants thereafter
surrendered for registration of transfer or exchange.
5.5. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be mailed by express,
registered or certified mail, postage
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prepaid, return receipt requested, sent by telecopy (with confirmation of
transmission received and followed by the posting of a "hard copy" of the notice
or communication by first-class U.S. mail), or by courier service guaranteeing
overnight delivery with charges prepaid, or otherwise delivered by hand or by
messenger, and shall be conclusively deemed to have been received by a party
hereto and to be effective on the day on which delivered or telecopied to such
party at its address set forth below (or at such other address as such party
shall specify to the other parties hereto in writing), or, if sent by registered
or certified mail, on the third business day after the day on which mailed,
addressed to such party at such address.
In the case of the Holder, such notices and communications shall
be addressed to its address as shown on the books maintained by the Warrant
Agency, unless the Holder shall notify the Company and the Warrant Agency in
writing that notices and communications should be sent to a different address,
in which case such notices and communications shall be sent to the address
specified by the Holder. In the case of the Company, such notices and
communications shall be addressed as follows: Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Futurelink Corp., ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5.6. Survival of Agreements; Representations and Warranties, etc.
All warranties, representations and covenants made by the Company herein shall
be considered to have been relied upon by the Holder and shall survive the
issuance and delivery of the Warrant, regardless of any investigation made by
the Holder, and shall continue in full force and effect so long as this Warrant
is outstanding.
5.7. Severability. In case any one or more of the provisions
contained in this Warrant shall be held to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
5.8. Section Headings. The section headings used herein are for
convenience of reference only, do not constitute a part of this Warrant and
shall not affect the construction of or be taken into consideration in
interpreting this Warrant.
5.9. No Rights as Stockholder; No Limitations on Company Action.
This Warrant shall not entitle the Holder to any rights as a stockholder of the
Company. No provision of this Warrant and no right or option granted or
conferred hereunder shall in any way limit, affect or abridge the exercise by
the Company of any of its corporate rights or powers to recapitalize, amend its
certificate of incorporation, reorganize, consolidate or merge with or into
another corporation or to transfer all or any part of its property or assets, or
the exercise of any other of its corporate rights or powers.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its duly authorized representative.
FUTURELINK CORP.
By:______________________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice
President and Chief Financial Officer
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Annex 1
SUBSCRIPTION NOTICE
Dated:________________
The undersigned hereby irrevocably elects to exercise the right
of purchase evidenced by the attached Warrant for, and to purchase thereunder,
__________ shares of Common Stock of Futurelink Corp. as provided for therein.
The undersigned:
[ ] tenders herewith payment of the Exercise Price (as defined in the
attached Warrant) for such shares in the form of cash, money order,
certified or bank cashier's check or wire transfer.
[ ] hereby instructs you to retain, in payment of the Exercise Price for
such shares, a number of shares of Common Stock (the "Payment Shares")
equal to the quotient of the aggregate Exercise Price for such shares
divided by the Average Closing Price (as defined in the attached
Warrant) as of the date hereof and to deduct the Payment Shares from the
shares to be delivered.
(Please check box to indicate method of payment of the Exercise Price.)
INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK
Please issue a certificate or certificates for such shares of
Common Stock in the following name or names and denominations:
Name:_____________________________________________
(Please typewrite or print in block letters.)
Address:__________________________________________
Denomination:_____________________________________
REPRESENTATIONS AND WARRANTIES
In connection with the exercise of the attached Warrant, the
undersigned hereby represents and warrants that:
(i) unless registered pursuant to a registration rights agreement
or otherwise, it recognizes that the shares of Common Stock issuable pursuant to
the attached Warrant have not been registered under the Securities Act of 1933,
as amended (the "Securities Act") or any
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applicable state securities laws, and may not transferred, sold, or offered for
sale unless registered pursuant to the Securities Act and all applicable state
securities laws or unless an exemption from such registration in available and
the Company has received an opinion to that effect from counsel reasonably
satisfactory to the Company;
(ii) it recognizes that the shares of Common Stock issuable
pursuant to the attached Warrant are subject to, and are transferable only upon
compliance with, the provisions of the Securities Purchase Agreement;
(iii) if the undersigned is an individual, the undersigned is an
"accredited investor" as that term is defined in Rule 501(a)(5) or (6) of
Regulation D promulgated under the Securities Act by reason that the undersigned
is an individual (i) having an individual net worth, or a joint net worth with
the undersigned's spouse, at the time of the purchase that exceeds $1,000,000,
or (ii) who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with the undersigned's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching the
same income level in the current year; or if the undersigned is a corporation or
other entity, the undersigned is an "accredited investor" as that term is
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the
Securities Act; and
(iv) it is purchasing the shares of Common Stock for investment
and not with a view to resale or distribution or any present intention to resell
or distribute, except in compliance with the Securities Act and all applicable
state securities laws.
ISSUANCE OF NEW WARRANT
If said number of shares shall not be all the shares issuable
upon exercise of the attached Warrant, a new Warrant is to be issued in the name
of the undersigned for the balance remaining of such shares less any fraction of
a share paid in cash.
Signature:__________________________
Note: The above signature should correspond exactly with the
name on the face of the attached Warrant or with the name
of the assignee appearing in the assignment form below.
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Annex 2
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and
transfers unto:
Name:____________________________________________
(Please typewrite or print in block letters)
Address:_________________________________________
the right to purchase Common Stock (as defined in the attached Warrant)
represented by the attached Warrant to the extent of _______________ shares as
to which such right is exercisable and does hereby irrevocably constitute and
appoint ______________________________________________________________________
__________________________________________________, attorney-in-fact, to
transfer said Warrant on the books of Futurelink Corp., with full power of
substitution in the premises.
Dated:____________________
Signature:_________________________
Note: The above signature should correspond exactly with
the name on the face of the attached Warrant.