Exhibit 4.6
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT DATED JUNE 16, 1998 BY AND BETWEEN PRIMIS, INC.
AND CERTAIN OF ITS SHAREHOLDERS.
No. W-__
WARRANT TO PURCHASE STOCK
OF
PRIMIS, INC.
VOID AFTER JANUARY ____, 2005
This certifies that, for value received,_____________________,
or its registered assigns ("Holder"), is entitled, subject to the terms set
forth below, to purchase from Primis, Inc., a Georgia corporation (the
"Company"), the number of shares of Series C Convertible Preferred Stock of the
Company ("Series C Preferred Stock") (or Common Stock of the Company ("Common
Stock") upon or after the occurrence of an IPO as defined below), as constituted
on the date hereof, upon surrender of this Warrant, at the principal office of
the Company, with the Notice of Exercise attached hereto as EXHIBIT A duly
executed, and simultaneous payment therefor in lawful money of the United States
or as otherwise provided hereinafter, at the Exercise Price set forth in Section
2 below. The number, character and Exercise Price of such shares of Series C
Preferred Stock (or, upon the occurrence of an IPO, Common Stock) are determined
as set forth and are subject to adjustment as provided below. The term "Warrant"
as used herein shall include this Warrant, and any warrants delivered in
substitution or exchange therefor as provided herein. This Warrant is issued
pursuant to the terms of that certain Convertible Promissory Note and Warrant
Purchase Agreement dated as of the date hereof (the "Purchase Agreement") in
connection with the Company's issuance to the Holder of a Convertible Promissory
Note dated as of the date hereof (the "Note"), in the principal amount of
_____________________ Dollars ($_________).
1. PURCHASE OF SHARES. Subject to the terms and conditions
hereinafter set forth in the Purchase Agreement, the Holder is entitled, upon
surrender of this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the Holder hereof in writing), to
purchase from the Company up to that number of fully paid and nonassessable
shares of Series C Preferred Stock (or Common Stock in the case of subsection
(c) below), as more fully described below, that is equal to:
(a) in the event that the Company closes a sale of its
common or preferred stock in which the gross cash proceeds to the Company equal
or exceed Twenty Million Dollars ($20,000,000) prior to one hundred eighty (180)
days from the date hereof (the "Qualifying Equity Financing"), the quotient
obtained by dividing (i) thirty-five percent (35%) of the principal amount of
the Note to which this Warrant relates (the "Warrant Coverage") by (ii) the
lower of the Series C Price Per Share (as defined below) and the price per share
of the common or preferred stock sold to investors in the Qualifying Equity
Financing;
(b) in the event that the Company closes prior to a
Qualifying Equity Financing either (i) a sale or transfer of all or
substantially all of its assets or (ii) the acquisition of the Company by
another entity by means of merger, consolidation or other transaction or series
of related transactions resulting in the exchange of the outstanding shares of
the Company's capital stock such that the Company's shareholders prior to such
transaction own, directly or indirectly, less than fifty percent (50%) of the
voting power of the surviving entity or the entity that owns 100% of the
outstanding securities of such surviving entity (each, a "Sale of the Company"),
the quotient obtained by dividing (i) the Warrant Coverage by (ii) the Series C
Price Per Share;
(c) in the event that the Company closes a firm
commitment underwritten public offering of shares of its Common Stock ("Common
Stock") under the Securities Act of 1933, as amended (the "1933 Act"), from
which the Company receives net proceeds of not less than Thirty Million Dollars
($30,000,000) at a public offering price of not less than the Series C Price Per
Share (the "IPO") prior to a Qualifying Equity Financing or Sale of the Company,
that number of shares of Common Stock of the Company equal to the quotient
obtained by dividing (i) the Warrant Coverage by (ii) the Series C Price Per
Share; or
(d) in the event that the Company does not close a
Qualifying Equity Financing, Sale of the Company or IPO prior to the date 180
days from the date hereof, the quotient obtained by dividing (i) the Warrant
Coverage by (ii) $6.00 (subject to adjustment for any stock split, combination,
consolidation or stock distributions, stock dividends, recapitalizations or the
like).
The "Series C Price Per Share" shall mean $15.31 a share (subject to adjustment
for any stock split, combination, consolidation or stock distributions or stock
dividends or recapitalizations or the like).
Upon the first to occur of (i) a Qualifying Equity Financing,
(ii) an IPO, (iii) a Sale of the Company, or (iv) the date which is one-hundred
eighty (180) days from the date
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hereof if no Qualifying Equity Financing, IPO or Sale of the Company occurs
prior thereto, the number of shares of Series C Preferred Stock or Common Stock
into which this Warrant may be exercised (the "Shares") shall be permanently
established and fixed in accordance with the foregoing subsections and shall
only be subject to further adjustment as provided in Section 8 hereof. If the
securities issuable to investors in the Qualifying Equity Financing are not
preferred stock, all references in this Warrant to "preferred stock" that is
issued in such Qualifying Equity Financing shall be deemed to be adjusted
accordingly.
Notwithstanding anything herein to the contrary, upon the
occurrence of an IPO at any time while this Warrant remains exercisable, the
Shares for which this Warrant may be exercised shall automatically be converted
into, and all references herein to Shares shall be deemed to refer to, Common
Stock of the Company. In the event the Shares for which this Warrant could have
been exercised immediately prior to the IPO were Series C Preferred Stock, the
shares of Common Stock for which this Warrant may be exercised upon and after
the closing of the IPO shall be equal to that number of shares of Common Stock
the Holder would have received upon conversion of the Series C Preferred Stock
issuable pursuant hereto had the Holder exercised this Warrant immediately prior
to the IPO.
2. EXERCISE PRICE. Subject to adjustment pursuant to Section
8 hereof, the purchase price for the shares ("Exercise Price") shall be (i) upon
a Qualifying Equity Financing, the lower of the Series C Price Per Share or the
price per share of the stock sold to investors in a Qualifying Equity Financing,
(ii) in the event the Company does not close a Qualifying Financing, Sale of the
Company or IPO prior to the date 180 days from the date hereof, $6.00 per share,
and (iii) in all other cases, the Series C Price Per Share.
3. EXERCISE PERIOD. This Warrant shall become exercisable,
in whole or in part, but not for less than 5,000 Shares (such number being
subject to adjustment as provided in Section 8 hereof), commencing upon the
earlier of (i) the closing of the Qualifying Equity Financing, (ii) immediately
prior to the closing of the Sale of the Company, (iii) immediately prior to the
closing of the IPO or (iv) the date one hundred eighty (180) days from the date
set forth on the signature page of this Warrant, and it shall remain so
exercisable until 5:00 p.m. on the date which is five (5) years from the date
set forth on the signature page of this Warrant; provided, however, that in the
event of the closing of a Sale of the Company, this Warrant shall, on the date
of such event, no longer be exercisable and become null and void. In the event
of a proposed Sale of the Company, the Company shall notify the holder of the
Warrant at least fifteen (15) days prior to the consummation of such event or
transaction.
4. METHOD OF EXERCISE. While this Warrant remains
outstanding and exercisable in accordance with Section 3 above, the Holder may
exercise, in whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) the surrender of the Warrant, together with a duly
executed copy of the form of Notice of Election attached hereto, to the
Secretary of the Company at its principal office (or such other office of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company);
3
(b) the payment to the Company of an amount equal to
the aggregate Exercise Price for the number of Shares being purchased (i) in
cash or by check payable to the Company, (ii) by cancellation by the Holder of
indebtedness or other obligations of the Company to the Holder or (iii) by
combination of (i) or (ii); and
(c) This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of
Series C Preferred Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. In the event that this Warrant is exercised in part, the Company at
its expense will execute and deliver a new Warrant of like tenor exercisable for
the number of Shares for which this Warrant may then be exercised.
5. NET EXERCISE. Notwithstanding any provisions herein to
the contrary, if this Warrant is exercised in connection with or following the
completion by the Company of an IPO, in lieu of exercising this Warrant for
cash, the Holder may elect to receive shares equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with the properly
endorsed Notice of Exercise and notice of such election in which event the
Company shall issue to the Holder a number of shares of Common Stock computed
using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock
to be issued to the Holder
Y = the number of shares of Common Stock
purchasable under the Warrant or, if
only a portion of the Warrant is
being exercised, the portion of the
Warrant being canceled (at the date
of such calculation)
A = the Fair Market Value of one share
of Company's Common Stock (at the
date of such calculation)
B = Exercise Price (as adjusted to the
date of such calculation)
For purposes of the above calculation, Fair Market Value means, if the Company's
Common Stock is traded on a national securities exchange or the NASDAQ National
Market System, the average of the last reported sales price over the five (5)
days immediately preceding the date of valuation at which the Common Stock has
traded on such national securities exchange or NASDAQ National Market System or,
if the Company's Common Stock is traded in the over-the-counter market, the
average of the bid and asked prices on the over-the-counter market, on the date
of valuation.
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6. CERTIFICATES FOR SHARES. Upon the exercise of the
purchase rights evidenced by this Warrant, one or more certificates for the
number of Shares so purchased shall be issued as soon as practicable thereafter
(with appropriate restrictive legends, if applicable), and in any event within
thirty (30) days of the delivery of the Notice of Exercise.
7. ISSUANCE OF SHARES. The Company covenants that the
Shares, when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens, and
charges with respect to the issuance thereof.
8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The
number of and kind of securities purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as follows:
(a) MERGER, SALE OF ASSETS, ETC. If at any time while
this Warrant, or any portion thereof, is outstanding and unexpired there shall
be (i) a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a merger in which the Company is the
surviving entity but the shares of the Company's capital stock outstanding
immediately prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash, or otherwise, or (iii) a sale
or transfer of the Company's properties and assets as, or substantially as, an
entirety to any other person, then, as a part of such reorganization, merger,
consolidation, sale or transfer, lawful provisions shall be made so that the
holder of this Warrant shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified herein and upon payment of the
Exercise Price then in effect, the number of shares of stock or other securities
or property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in this Section 8. The
foregoing provisions of this Section 8(a) shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporation that are at the time receivable upon the
exercise of this Warrant. If the per share consideration payable to the holder
hereof for shares in connection with any such transaction is in a form other
than cash or marketable securities, then the value of such consideration shall
be determined in good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the transaction, to
the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
(b) RECLASSIFICATION, ETC. If the Company, at any time
while this Warrant, or any portion hereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
5
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 8.
(c) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the
Company at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired shall split, subdivide or combine the securities as to
which purchase rights under this Warrant exist, into a different number of
securities of the same class, the Exercise Price for such securities shall be
proportionately decreased in the case of a split or subdivision or
proportionately increased in the case of a combination.
(d) ADJUSTMENTS FOR DIVIDENDS IN STOCK OR OTHER
SECURITIES OR PROPERTY. If while this Warrant, or any portion hereof, remains
outstanding and unexpired, the holders of the securities as to which purchase
rights under this Warrant exist at the time shall have received, or, on or after
the record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or additional stock
or other securities or property (other than cash) of the Company by way of
dividend (other than the 7% per annum dividend which accrues on the Series C
Preferred Stock pursuant to the terms set forth in the Company's Amended and
Restated Articles of Incorporation), then in each case, this Warrant shall
represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such other or additional stock
or other securities or property (other than cash) of the Company that such
holder would hold on the date of such exercise had it been the holder of record
of the security receivable upon exercise of this Warrant on the date hereof and
had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and/or all other additional stock
available to it as aforesaid during such period, giving effect to all
adjustments called for during such period by the provisions of this Section 8.
(e) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence
of each adjustment or readjustment pursuant to this Section 8, the Company at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustment
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number and kind of shares and the amount, if any, of other property that at the
time would be received upon the exercise of the Warrant.
(f) NO IMPAIRMENT. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Section 8 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
impairment.
6
9. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
10. NO SHAREHOLDER RIGHTS. Subject to Sections 8 and 13 of
this Warrant, the Holder shall not be entitled to vote or receive dividends or
be deemed the holder of Series C Preferred Stock or any other securities of the
Company that may at any time be issuable on the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, or change of stock to no par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised as provided herein. However, nothing in this Section 10 shall limit
the right of the Holder to be provided the Notices required under this Warrant
or the Purchase Agreement.
11. TRANSFERS OF WARRANT.
a. WARRANT REGISTER. The Company will maintain a register
(the "Warrant Register") containing the names and addresses of the Holder or
Holders. Any Holder of this Warrant or any portion thereof may change his or her
address as shown on the Warrant Register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be delivered or given by mail to such
Holder as shown on the Warrant Register and at the address shown on the Warrant
Register. Until this Warrant is transferred on the Warrant Register of the
Company, the Company may treat the Holder as shown on the Warrant Register as
the absolute owner of this Warrant for all purposes, notwithstanding any notice
to the contrary.
b. TRANSFERABILITY AND NONNEGOTIABILITY OF WARRANT. This
Warrant may not be transferred or assigned in whole or in part without
compliance with (i) all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, if such are requested by the Company) and (ii) the terms and conditions
of that certain Amended and Restated Shareholders' Agreement, dated as of June
16, 1998, by and among the Company and certain of its shareholders.
c. EXCHANGE OF WARRANT UPON A TRANSFER. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers contained in this Section 11, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for the
number of shares issuable upon exercise hereof.
7
d. COMPLIANCE WITH SECURITIES LAWS.
i. The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Series C Preferred
Stock (and the shares of Common Stock into which such shares of Series
C Preferred Stock convert) or Common Stock to be issued upon exercise
hereof are being acquired solely for the Holder's own account and not
as a nominee for any other party, and for investment, and that the
Holder will not offer, sell or otherwise dispose of this Warrant or any
shares of Series C Preferred Stock to be issued upon exercise hereof
except under circumstances that will not result in a violation of the
Act or any state securities laws. Upon exercise of this Warrant, the
Holder shall, if requested by the Company, confirm in writing, in a
form satisfactory to the Company, that the shares of Series C Preferred
Stock so purchased are being acquired solely for the Holder's own
account and not as a nominee for any other party, for investment, and
not with a view toward distribution or resale and that the Holder is an
"accredited investor" as defined in Section 501 of the regulations
adopted under the Act or that the shares of Series C Preferred Stock so
purchased may be issued without registration under the Act and under
applicable state securities laws.
ii. All shares of Series C Preferred Stock (and the
shares of Common Stock into which such shares of Series C Preferred
Stock convert) or Common Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following form
(in addition to any legend required by state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
THESE SECURITIES ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT DATED JUNE 16, 1998 BY AND
BETWEEN THE COMPANY AND CERTAIN OF ITS SHAREHOLDERS.
12. RESERVATION OF STOCK. The Company covenants that, during
the term this Warrant is exercisable, the Company will reserve from its
authorized and unissued Series C Preferred Stock (and Common Stock) a sufficient
number of shares to provide for the issuance of Series C Preferred Stock or
Common Stock, as applicable, upon the exercise of this Warrant (and the issuance
of Common Stock upon the conversion of such Series C Preferred Stock) and, from
time to time, will take all steps necessary to amend its Articles of
Incorporation to provide sufficient reserves of shares of Series C Preferred
Stock (and Common Stock) issuable upon
8
exercise of the Warrant. The Company further covenants that all shares that may
be issued upon the exercise of rights represented by this Warrant and payment of
the Exercise Price, all as set forth herein, will be fully paid, nonassessable,
free of preemptive rights (other than preemptive rights which have been waived)
and free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously or
otherwise specified herein). The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Series C Preferred Stock upon the exercise of this
Warrant.
13. NOTICES.
a. In case:
(1) the Company shall take a record of the holders of its Series C
Preferred Stock (or other securities at the time receivable upon the
exercise of this Warrant) for the purpose of entitling them to receive
any dividend or other distribution, or any right to subscribe for or
purchase any shares of stock of any class or any other securities, or
to receive any other right, or
(2) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation
or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to
another corporation, or
(3) of any voluntary dissolution, liquidation or winding-up for
the Company,
then, and in each such case, the Company will mail or cause to be mailed to
the Holder or Holders a notice specifying, as the case may be, (A) the date
on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (B) the date on which such reorganization,
reclassification, 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 Series C Preferred Stock (or such stock or
securities at the time receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Series C Preferred Stock (or such other
stock or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least
15 days prior to the date therein specified.
b. All such notices, advices and communications shall be deemed
to have been received as set forth in Section 17 below.
14. SUCCESSORS AND ASSIGNS. The terms and provisions of this
Warrant and the Purchase Agreement shall inure to the benefit of, and be binding
upon, the Company and the Holders hereof and their respective successors and
assigns.
9
15. AMENDMENTS AND WAIVERS. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of two
thirds of the shares of Series C Preferred Stock issued or issuable upon
exercise of Warrants issued pursuant to the Purchase Agreement. Any waiver or
amendment effected in accordance with this Section shall be binding upon each
holder of any Shares purchased under this Warrant at the time outstanding
(including securities into which such Shares have been converted), each future
holder of all such Shares, and the Company.
16. EFFECT OF AMENDMENT OR WAIVER. The Holder acknowledges
that by the operation of Section 16 hereof, the holders of two thirds of the
shares of Series C Preferred Stock issued or issuable upon exercise of Warrants
issued pursuant to the Purchase Agreement will have the right and power to
diminish or eliminate all rights of such holder under this Warrant or under the
Purchase Agreement.
17. NOTICES. All notices required under this Warrant and
shall be deemed to have been given or made for all purposes (i) upon personal
delivery, (ii) upon confirmation receipt that the communication was successfully
sent to the applicable number if sent by facsimile; (iii) one day after being
sent, when sent by professional overnight courier service, or (iv) five days
after posting when sent by registered or certified mail. Notices to the Company
shall be sent to the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing). Notices to the Holder
shall be sent to the address of the Holder on the books of the Company (or at
such other place as the Holder shall notify the Company hereof in writing).
18. ATTORNEYS' FEES. If any action of law or equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be entitled.
19. CAPTIONS. The section and subsection headings of this
Warrant are inserted for convenience only and shall not constitute a part of
this Warrant in construing or interpreting any provision hereof.
20. GOVERNING LAW. This Warrant shall be governed by the laws
of the State of Georgia as applied to agreements among Georgia residents made
and to be performed entirely within the State of Georgia.
{END OF TEXT}
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IN WITNESS WHEREOF, Primis, Inc. caused this Warrant to be
executed by an officer thereunto duly authorized as of this ___ day of
January, 2000.
PRIMIS, INC.
By:______________________________________
Title: __________________________________
11
EXHIBIT A
NOTICE OF EXERCISE
To: PRIMIS, INC.
The undersigned hereby elects to [CHECK APPLICABLE
SUBSECTION]:
________ (a) Purchase _________________ shares of Series C
Preferred Stock or Common Stock, as applicable, of
Primis, Inc., pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share
required under such Warrant accompanies this notice;
OR
________ (b) Exercise the attached Warrant for [all of the shares]
[________ of the shares] [CROSS OUT INAPPLICABLE
PHRASE] purchasable under the Warrant pursuant to
the net exercise provisions of Section 5 of such
Warrant.
The undersigned hereby represents and warrants that the
undersigned is acquiring such shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such shares or any
part thereof.
WARRANTHOLDER:
-----------------------------------------
By:
--------------------------------------
[NAME]
Address:
-----------------------------------------
-----------------------------------------
Date:
-----------------
Name in which shares should be registered:
------------------------------------------