EXHIBIT 4.4
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED (THE "ACT"), OR
UNDER ANY STATE SECURITIES LAWS. SUCH WARRANTS AND SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
SCOOP, INC.
WARRANT
DATED: OCTOBER 18, 1996
______________________________
Holder: Bell & Howell Company
Number of Warrants: 550,000
______________________________
THIS CERTIFIES THAT Holder is the owner of the number of Warrants (the
"Warrants") set forth above of SCOOP, INC., a California corporation (the
"Company"). Each Warrant entitles the registered holder to purchase one
share of common stock of the Company ("Common Stock"). For purposes of this
Warrant, the term "Warrant Shares" means the shares of Common Stock
purchasable hereunder.
The per share exercise prices for the Warrant Shares shall be as follows:
Number of Exercise Price
Warrants Per Warrant Share
--------- -----------------
First Tier 300,000 @ $ 6.50
Second Tier 150,000 @ $10.00
Third Tier 100,000 @ $15.00
1. RIGHT TO EXERCISE WARRANTS; ADDITIONAL WARRANTS. The rights
represented by this Warrant may be exercised at any time and from time to
time, in whole or in part and in any order of the then available exercise
prices, commencing as of the date hereof, and terminating at 5:00 p.m., Los
Angeles time, on October 31, 1999 (the "Expiration Time"). In the event
Holder exercises this Warrant with respect to 300,000 or more Warrant Shares
on or before September 15, 1997 (the "Incentive Exercise Date"), at the
election of Holder, and without reducing the number of Warrants remaining
exercisable
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under any tier of this Warrant, either (i) the total number of Warrants
exercisable at $6.50 per Warrant Share under the first tier of this Warrant
shall be increased from 300,000 to 500,000, provided that Holder's right to
exercise the additional 200,000 Warrants described in this clause (i), if
applicable, shall terminate at 5:00 p.m., Los Angeles time, on the Incentive
Exercise Date, or (ii) the total number of Warrants exercisable at $10.00 per
Warrant Share under the second tier of this Warrant shall be increased from
150,000 to 200,000 and the total number of Warrants exercisable at $15.00 per
Warrant Share under the third tier of this Warrant shall be increased from
100,000 to 200,000. Holder's right to exercise the additional 150,000
Warrants described in clause (ii) above, if applicable, shall terminate at
the Expiration Time.
2. EXERCISE OF WARRANTS. Subject to Section 1 and the other
provisions of this Warrant, the rights represented by this Warrant may be
exercised from time to time, in whole or in part, by: (i) surrender of this
Warrant, together with the purchase form attached hereto properly executed
and completed showing the number of Warrant Shares to be purchased and the
applicable exercise price(s) thereof, at the principal executive office of
the Company (or to such transfer agent of the Company as it may designate by
written notice to Holder); (ii) payment to the Company in immediately
available funds of the aggregate exercise price for the number of Warrant
Shares specified in the above-mentioned purchase form together with
applicable stock transfer taxes, if any; and (iii) delivery to the Company of
a written representation from Holder that Holder is acquiring the Warrant
Shares for Holder's own account for investment purposes only and not with a
view to distribute or sell such Warrant Shares. This Warrant shall be deemed
to have been exercised immediately prior to the close of business on the date
the Warrant is surrendered and payment and investment representations are
made in accordance with the foregoing provisions of this Section 2, and
Holder shall become the holder of record of the Warrant Shares issuable upon
such exercise at that time and date. Within five (5) business days after the
rights represented by this Warrant shall have been so exercised, the Company
shall deliver to Holder the certificate for the Warrant Shares so purchased
and, if less than all of the Warrant Shares purchasable hereunder have been
purchased upon such exercise, a Warrant in the form of this Warrant
representing the right to purchase the balance of the Warrant Shares until
the Expiration Time. Each certificate for Warrant Shares so purchased shall
bear a legend substantially similar to the following restrictive legend:
"These securities have not been registered under the
Securities Act of 1933, as amended, or any state
securities laws and may not be sold or offered for sale
unless registered under said Act and any applicable
state securities laws or unless the Company has
received an opinion of counsel satisfactory to the
Company that such registrations are not required."
3. ASSIGNMENT. Holder agrees that neither this Warrant nor any of
Holder's rights hereunder may be transferred, sold, assigned, hypothecated or
otherwised disposed
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of by Holder without the prior written consent of the Company, which the
Company may withhold in its absolute discretion; provided, however, that
without the prior consent of the Company, but subject to any restrictions
imposed by applicable securities laws, Holder shall be entitled to transfer
this Warrant and all of its rights hereunder to any direct or indirect parent
or subsidiary or to any purchaser or other transferee of all or substantially
all of Holder's information access business so long as such purchaser or
transferee is not a direct competitor of the Company. For purposes of this
Warrant, the term "direct competitor" shall include Individual Inc., M.A.I.D.
plc, Desktop Data, Inc., Infoseek Corporation, Information Access Company and
any other entity primarily engaged in the business of providing customers
with an Internet based business information service with a data archive of
six months or less. Any attempted prohibited disposition of this Warrant or
any of Holder's rights hereunder without the Company's prior written consent
shall be void and of no effect. In the event the Company consents to any such
transfer, sale, assignment, hypothecation or other disposition of this
Warrant, Holder agrees that such disposition shall be effected only pursuant
to a valid and effective registration statement or if the Company has
received from counsel to the Company (or, at the Company's election, from
counsel to the Holder that is reasonably acceptable to the Company) a written
opinion, in a form reasonably acceptable to the Company, to the effect that
registration of the Warrant or the Common Stock underlying the Warrant is not
necessary in connection with such transfer, sale, assignment, hypothecation
or other disposition. Any such permitted assignment shall be effected by
Holder by: (i) surrendering the Warrant for cancellation at the principal
executive office of the Company (or to such transfer agent of the Company as
it may designate by written notice to Holder), accompanied by the transfer
form attached hereto properly completed and executed and the opinion of
counsel referred to above; and (ii) delivering to the Company a written
representation from the transferee Holder (in a form acceptable to the
Company and its counsel) that such Warrant is being acquired for the account
of such transferee Holder for investment purposes only and not with a view to
its distribution or resale; whereupon the Company shall issue, in the name or
names specified by Holder (including Holder) new Warrants representing in the
aggregate rights to purchase the same number of Warrant Shares as are
purchasable under the Warrant surrendered. The term "Holder" shall be deemed
to include any person to whom this Warrant is transferred in accordance with
the terms hereof.
4. REGISTRATION RIGHTS.
(a) Commencing two (2) years from the date hereof, Holder shall have
the right, exercisable by written notice to the Company, to have the Company
prepare, file and use its best efforts to have declared effective by the
Securities and Exchange Commission, a registration statement covering Warrant
Shares owned and held of record by Holder at the time of exercise of such
registration rights for at least twelve (12) consecutive months.
Notwithstanding the foregoing, the Company shall not be obligated to effect a
registration pursuant to this Section 4(a): (i) after the Company has
effected two (2) registrations pursuant to this Section 4(a); (ii) during the
period starting with the date sixty (60) days prior to the Company's good
faith estimate of the date of filing of,
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and ending on a date one hundred eighty (180) days following the effective
date of, a registration statement pertaining to a firmly underwritten
offering of securities by the Company, provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; (iii) if the Company shall furnish Holder a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for a registration statement
to be filed at that time, in which case the Company's obligations to use its
best efforts to file a registration statement shall be deferred for a period
not to exceed ninety (90) days; provided, however, that the Company shall not
obtain such a deferral more than once in any twelve (12) month period; or
(iv) with respect to any Warrant Shares which may be sold or transferred by
Holder pursuant to Rule 144 of the Act (or any successor rule thereto) either
without volume limitations or in compliance with any applicable volume
limitations, it being understood that the foregoing clause (iv) shall not
affect or limit Holder's registration rights under this Section 4(a) with
respect to any Warrant Shares which are not so transferrable pursuant to Rule
144.
(b) Commencing one (1) year following the closing of the initial
public offering of the Company's Common Stock pursuant to an effective
registration statement under the Act, and for a period of three (3) years
thereafter, each time the Company proposes to file a registration statement
under the Act (other than a registration statement relating to the issuance
of securities of the Company pursuant to employee benefit plans or the
distribution of securities of the Company in connection with a merger,
acquisition or exchange offer) covering the proposed sale for cash of shares
of its Common Stock on a form that would also permit the registration of
Warrant Shares, the Company shall give written notice thereof to Holder. Upon
the written request of Holder given within twenty (20) days after such
written notice from the Company, the Company shall use its best efforts to
cause the number of Warrant Shares requested by the Holder to be included in
the registration statement. If the managing underwriter or underwriters of
such public offering determine, in their sole discretion, that marketing
factors require a limitation of the number of shares to be underwritten or
that the inclusion of any or all of the Warrant Shares in the registration
could jeopardize the success of the offering by the Company, the Warrant
Shares requested by the Holder to be registered shall be reduced or excluded
from the offering as determined by the underwriters, in their sole
discretion; provided that if any other holders of Common Stock of the Company
with registration rights have also requested registration, the number of
Warrant Shares and all such other stock shall be reduced proportionately
based upon the number of shares of registrable stock then held by each of the
holders of such registration rights, respectively. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 4(b) prior to the effectiveness of such registration whether or not
Holder has elected to include Warrant Shares in such registration. Any sales
of Warrant Shares pursuant to a registration pursuant to this Section 4(b)
shall be effected through the underwriter of such registered offering. A
registration of Warrant Shares pursuant to this Section 4(b) shall not be
counted against the Holder's right to demand registration pursuant to Section
4(a). The registration rights described in this Section 4(b) shall terminate
prior to the three-year
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period described above in this Section 4(b) if, and as of such time, all of
the Warrant Shares may be sold or transferred by Holder in one or more
transactions pursuant to Rule 144 under the Act (or any success or rule
thereto) either without volume limitations or in compliance with any
applicable volume limitations, it being understood that the foregoing shall
not affect or limit Holder's registration rights under this Section 4(b) with
respect to any Warrant Shares which are not so transferrable pursuant to Rule
144.
(c) In connection with any registration of Warrant Shares pursuant
to this Section 4, the Company agrees to take all reasonable action necessary
to facilitate the sale of the registered Warrant Shares, including furnishing
to Holder such number of prospectuses reasonably required by Holder to
dispose of the Warrant Shares, using its best efforts to register or qualify
the Warrant Shares under the Act and applicable blue sky laws (such action
being herein called a "Filing" or the "Filing) and delivering underwriting
agreements and other documents customarily delivered by issuers in connection
with public offerings. The Company shall not be required to ensure the
availability of a prospectus meeting the requirements of the Act in
connection with any Filings made pursuant to this Section 4 for a period
greater than is required to complete the marketing arrangements with respect
to the securities in such Filings, and in no event for a period greater than
90 days (or such greater period as may be required by law for the delivery of
such a prospectus).
(d) All expenses, filing fees and other costs incurred by the
Company in connection with any registration of Warrant Shares pursuant to
this Section 4 shall be borne by the Company; provided, however, that Holder
shall pay the underwriting discounts and commissions applicable to the sale
of Warrant Shares in accordance with the underwriter's customary compensation
practices, and shall pay any fees and disbursements of counsel retained by
Holder (other than counsel also retained by the Company).
5. COMMON STOCK. The Company covenants and agrees that all shares of
Common Stock which may be issued upon exercise of this Warrant will, upon
issuance, be duly and validly issued, fully paid and nonassessable and no
personal liability will attach to the holder thereof. The Company further
covenants and agrees that, during the period within which this Warrant may be
exercised, the Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock for issuance upon exercise of
this Warrant.
6. NO STOCKHOLDER RIGHTS. This Warrant shall not entitle Holder to
any voting rights or other rights as a stockholder of the Company.
7. ADJUSTMENT OF RIGHTS. In the event that the outstanding shares of
Common Stock of the Company are at any time increased or decreased or changed
into or exchanged for a different number or kind of share or other security
of the Company or of another corporation through reorganization, merger,
consolidation, liquidation, recapitalization, stock split, combination of
shares, stock dividends payable with respect
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to such Common Stock or any event similar to any of the foregoing,
appropriate adjustments in the number, kind and price of such securities then
subject to this Warrant shall be made effective as of the date of such
occurrence so that the position of Holder upon exercise will be the same as
it would have been had he owned immediately prior to the occurrence of such
event the number of shares of Common Stock subject to this Warrant. Such
adjustment shall be made successively whenever any event listed above shall
occur and the Company will notify Holder of the Warrant of each such
adjustment. Any fraction of a share resulting from any adjustment shall be
eliminated and the price per share of the remaining shares subject to this
Warrant adjusted accordingly.
8. NOTICES OF CERTAIN EVENTS. The Company shall give Holder at least
twenty (20) days prior written notice of any proposed record date for the
purpose of determining stockholders entitled to receive any dividend or other
distribution or to participate in any merger, consolidation, reorganization
or other similar significant event.
9. NOTICES. Unless applicable law requires a different method of
giving notice, any and all notices, demands or other communications required
or desired to be given hereunder by any party shall be in writing. Assuming
that the contents of a notice meet the requirements of the specific Section
of this Warrant which mandates the giving of that notice, a notice shall be
validly given or made to another party if served either personally or if
mailed, postage prepaid, or if transmitted by telegraph, telecopy or other
electronic written transmission device or if sent by overnight courier
service, and if addressed to the applicable party as set forth below. If such
notice, demand or other communication is served personally, service shall be
conclusively deemed made at the time of such personal service. If such
notice, demand or other communication is given by mail, service shall be
conclusively deemed given upon the earlier of receipt or seventy-two (72)
hours after the sent via certified United States mail, postage prepaid,
return receipt requested. If such notice, demand or other communication is
given by overnight courier, or electronic transmission, service shall be
conclusively made at the time of confirmation of delivery. The addresses for
Holder and the Company are as follows:
If to Holder: Bell & Howell Company
5215 Old Orchard Road
Skokie, IL 60077
Attn: President
If to the Company: Scoop, Inc.
2540 Red Hill Avenue
Suite 100
Santa Ana, CA 92705
Attn: President
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Either party hereto may change its address for the purpose of receiving
notices, demands and other communications as herein provided by a written
notice given in the aforesaid manner to the other party hereto.
10. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the internal laws of California without regard to the
principles of choice of law or conflicts of law thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer, and to be dated as of the date set forth above.
SCOOP, INC.
By: /s/ Karl-Magnus S. Karlsson
------------------------------------------
Karl-Magnus S. Karlsson
President and Chief Executive Officer
The foregoing terms are acknowledged, accepted and agreed to as of the date
of this Warrant:
BELL & HOWELL COMPANY
By /s/ Nils A. Johansson
--------------------------------
Nils A. Johansson
Executive Vice President and
Chief Financial Officer
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the holder of the foregoing Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant to
purchase ________ shares of Common Stock at the exercise price of $6.50 per
share, ________ shares of Common Stock at the exercise price of $10.00 per
share, and _________ shares of Common Stock at the Exercise Price of $15.00
per share, and herewith makes payment of an aggregate of $ _______ therefor,
and requests that the certificates for shares of Common Stock be issued in
the name of, and delivered to, the undersigned whose address is set forth
below.
Dated:__________, ___
--------------------------------------
Name of Holder
By:
-----------------------------------
Signature
--------------------------------------
Print Name and Title
--------------------------------------
Number and Street
--------------------------------------
City, State and Zip Code
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TRANSFER FORM
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto the transferee named below all of the undersigned's right, title and
interest in and to the attached Warrant, with respect to the number of shares
of Common Stock of Scoop, Inc. set forth below and irrevocably authorizes the
Company to make such transfer on the books of the Company.
Name and Address Social Security or Numbers of Shares Exercise
of Transferee Taxpayer I.D. Number of Common Stock Price
---------------- -------------------- ----------------- --------
Dated: ___________, ___
--------------------------------------
Name of Holder
By:
-----------------------------------
Signature
--------------------------------------
Print Name and Title
--------------------------------------
Number and Street
--------------------------------------
City, State and Zip Code
In the presence of:
- --------------------------------
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