EXHIBIT 10 (a) (18)
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER ANY FEDERAL OR STATE SECURITIES LAWS. THIS
WARRANT HAS BEEN ISSUED UNDER EXEMPTIONS THAT DEPEND, IN PART, ON THE INTENT OF
THE HOLDER HEREOF NOT TO SELL OR TRANSFER THIS WARRANT OR SUCH SHARES IN ANY
MANNER NOT PERMITTED BY SUCH LAWS. THIS WARRANT AND SUCH SHARES THEREFORE MAY
NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
HEREIN.
INTER*ACT ELECTRONIC MARKETING, INC.
COMMON STOCK PURCHASE WARRANT
No. warrant number #shares Shares
FOR VALUE RECEIVED, Inter*Act Electronic Marketing, Inc., a North
Carolina corporation (the "Company"), hereby grants to name, or his/hers/its
registered assigns, the right to purchase number of shares (#shares) shares at a
price per share equal to the Exercise Price, as defined in Section 2 below,
(such number of shares and Exercise Price being subject to adjustment as
provided hereinafter) of the validly authorized and issued, fully paid and
nonassessable shares of common stock of the Company, no par value per share (the
"Common Stock"), upon compliance with and subject to the following terms and
conditions:
1. Exercise of Warrant. This Warrant may be exercised in whole at any
time, or in part from time to time, on or before the expiration date set forth
in Section 3 below by surrendering this Warrant, or the applicable portion
hereof, with a subscription form substantially in the form attached hereto duly
executed, at the offices of the Company in Charlotte, North Carolina, and by
paying in full the Exercise Price, in immediately available funds or as
otherwise hereinafter provided, for the number of shares of Common Stock as to
which this Warrant or applicable portion hereof is exercised. No fractional
shares shall be issued upon the exercise of this Warrant and, instead, any
fractional shares created by exercise hereunder shall be purchased by the
Company at the rate of the Exercise Price per share then in effect.
2. Exercise Price. This Warrant is being issued in connection with the
offering and sale of up to $25,000,000 of 10% Series C Mandatorily Convertible
Preferred Stock of the Company approved by the Board of Directors of the Company
on December 8, 1999 (the "Offering"). The exercise price per share of this
Warrant (the "Exercise Price") shall be $14.00 per share, subject to adjustment
as provided in Section 4 below.
3. Expiration of Warrant. This Warrant shall expire and all rights
hereunder shall cease on the date which is ten years from the date hereof.
4. Adjustment. The number of shares of Common Stock for which this
Warrant may be exercised and the Exercise Price per share shall be adjusted in
amount and number in accordance with the following:
(a) If the Company shall declare and pay on shares of Common
Stock a dividend payable in shares of Common Stock or shall split the
then outstanding shares of Common Stock into a greater number of shares,
the number of share of Common Stock for which this Warrant may be
exercised, as in effect at the time of taking of a record for such
dividend or at the time of such stock split, shall be proportionately
increased and the Exercise Price per share shall be proportionately
decreased. Conversely, if at any time the Company shall contract or
reduce the number of outstanding shares of Common Stock by combining
such shares into a smaller number of shares, the number of shares of
Commons Stock for which this Warrant may be exercised at the time of
such action shall be proportionately decreased and the Exercise Price
per share shall be proportionately increased.
(b) If the Company shall at any time, or from time to time (i)
issue, sell or exchange any shares of Common Stock, including shares
issued in the Company's first Qualified Public Offering (as defined
below) but excluding the Excluded Securities (as hereafter defined), for
a consideration per share less than the Exercise Price as of the date of
issuance, or (ii) issue, sell or exchange options or other securities,
excluding the Excluded Securities, that are convertible into or
exercisable for shares of Common Stock at an exercise or conversion
price that is less than the Exercise Price (taking into account, to the
extent applicable, any price paid for the option or other security) as
of the date of issuance, then and thereafter successively upon each such
issuance, sale or exchange, the Exercise Price in effect immediately
prior to the issuance, sale or exchange of such shares, options or
securities shall forthwith be reduced to, in the case of clause (i)
above, the amount of the consideration per share received by the Company
in connection with such issuance, sale or exchange, or in the case of
clause (ii) above, the amount of the exercise or conversion price per
share, plus the amount paid (if any) for the underlying option or other
security, in connection with such issuance, sale or exchange.
Notwithstanding the foregoing, there shall be no adjustment to the
Exercise Price pursuant to the provisions of this Section 4(b) after the
Company completes its first Qualified Public Offering. For purposes
hereof, "Qualified Public Offering" means a firm commitment public
offering of the Common Stock pursuant to a registration statement
declared effective under the Securities Act of 1933, as amended,
underwritten by a securities firm of nationally recognized standing with
an aggregate offering price to the public of not less than $30 million.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of paragraph (b) of this Section 4 shall not apply with
respect to the issuance of any Excluded Securities For purposes hereof,
"Excluded Securities" means (i) options, rights or shares of Common
Stock issued to, or issued in connection with the exercise or grant of
options or rights granted to, employees, directors or consultants of the
Company pursuant to the terms of any stock compensation plan of the
Company in effect on December 9, 1999 or adopted by the shareholders of
the Company after December 9, 1999, (ii) shares of Common Stock issued
in connection with the exercise of options or warrants issued by the
Company and outstanding on December 9, 1999, (iii) up to 20,000 shares
of Common Stock (or options or warrants to acquire up to such number of
shares of Common Stock) issued in connection
2
with the exercise of options or warrants issued under contractual
obligations of the corporation in effect as of December 9, 1999, (iv)
shares of Common Stock issued in connection with the acquisition by the
Company (or its subsidiary) of Clearing Systems, Inc. so long as the
Company (or its subsidiary) receives in such acquisition the same number
of shares of Common Stock issued, (v) shares of Common Stock issued upon
conversion of the 10% Series A Mandatorily Convertible Preferred Stock
("Series A Preferred Stock") issued and outstanding on December 9, 1999
or issued in respect of a dividend payment on the Series A Preferred
Stock, (vi) shares of Series A Preferred Stock issued in respect of a
dividend payment on the Series A Preferred Stock, (vii) shares of, or
options or rights to acquire, Common Stock issued for consideration
other than money, deemed by the Board of Directors of the Company to be
advantageous to the Company's business, and (viii) shares of Common
Stock in connection with any stock split or stock dividend covered by
paragraph (a) of this Section 4.
(d) If any time the Company shall initiate any transaction or be
a party to any transaction (including, without limitation, a merger,
consolidation, share exchange, sale, lease or other disposition of all
or substantially all of the Company's assets, charter amendment,
recapitalization or reclassification of the Common Stock or a "Stock
Sale," as defined below) in connection with which the previously
outstanding Common Stock shall be changed into or exchanged for
different securities of the Company or capital stock or other securities
of another corporation or interests in a non-corporate entity or other
property (including cash) or any combination of the foregoing (each such
transaction being herein called a "Transaction"), then, as a condition
of the consummation of the Transaction, lawful, enforceable and adequate
provision shall be made so that the holder of this Warrant shall be
entitled to receive upon exercise of the Warrant at any time on or after
the consummation of the Transaction, in lieu of the shares of Common
Stock issuable upon such exercise prior to such consummation, the
securities or other property (including cash) to which the holder would
have been entitled upon consummation of the Transaction if the holder
had exercised the Warrant immediately prior thereto (subject to
adjustments from and after the consummation date as nearly equivalent as
possible to the adjustments provided for in this Section 4). If a
purchase, tender or exchange offer is made to and accepted by the
holders of more than 50% of the outstanding Common Stock (a "Stock
Sale"), and if the holder of the Warrant so designates in a written
notice given to the Company, the holder shall be entitled to receive
upon the exercise of the Warrant at any time on or after the
consummation of the Stock Sale in lieu of the shares of Common Stock
issuable upon exercise prior to the consummation of the Stock Sale, the
securities or other property to which the holder would have been
entitled if the holder had exercised this Warrant prior to the
expiration of such purchase, tender or exchange offer and had accepted
such offer (subject to adjustments from and after the consummation of
such purchase, tender or exchange offer as nearly equivalent as possible
to the adjustments provided for in this Section 4). The Company will not
effect any Transaction unless prior to the consummation thereof each
corporation or entity (other than the Company) which may be required to
deliver any securities or other property upon the exercise of the
Warrant as provided herein shall assume, by written instrument delivered
to the holder, the obligation to deliver to the holder such securities
or other property as in accordance with the foregoing provisions the
holder may be entitled to receive. The foregoing provisions of this
Section 4(d) shall similarly apply to successive Transactions.
3
5. Notice of Adjustments. Within five (5) days after any adjustment
pursuant to Section 4 above, the Company shall give written notice thereof to
the registered holder. Such notice shall state the Exercise Price as adjusted
and the increased or decreased number of shares purchasable upon the exercise of
this Warrant, setting forth in detail the method of calculation.
6. Partial Exercise of Warrant. In the event of any partial exercise of
this Warrant, the Company shall return to the registered holder this Warrant,
which shall have noted thereon the date of partial exercise and the number of
shares of Common Stock issued upon the partial exercise thereof.
7. Reservation of Shares. The Company shall at all times reserve and
keep available a number of its authorized but unissued shares of its Common
Stock sufficient to permit the exercise in full of this Warrant.
8. Sale of Warrant or Shares. Neither this Warrant nor the shares of
Common Stock issuable upon exercise hereof have been registered under the
Securities Act of 1933, as amended, or under the securities laws of any state.
Neither this Warrant nor such shares, when issued, may be sold, transferred,
pledged or hypothecated in the absence of an effective registration statement
for this Warrant, or the shares of Common Stock, as the case may be, under the
Securities Act of 1933, as amended, and such registration or qualification as
may be necessary under the securities laws of any state, or an opinion of
counsel satisfactory to the Company that such registration or qualification is
not required.
9. Shareholders' Agreement. The holder understands and agrees that the
shares of Common Stock issuable upon exercise of this Warrant shall also be
subject to the restrictions on transfer and other provisions of the
shareholders' agreement, if any, that may be in effect among the Company and all
its shareholders as of the date of any exercise of this Warrant. As a condition
to the exercise of this Warrant, the holder agrees that he will become a party
to any such shareholders' agreement by executing a joinder agreement or other
appropriate document. In the event that the Shareholders' Agreement dated as of
April 16, 1993, as amended by Amendment No. 1 thereto dated as of June 17, 1994,
has terminated as a result of a public offering of capital stock of the Company
prior to the exercise of this Warrant, the holder nevertheless agrees to be
bound by the lock-up agreement contained in Section 23 thereof or any similar
lock-up agreement then in effect with respect to the Company's shareholders.
10. Legends. The certificate or certificates evidencing all or any of
the shares of Common Stock issued upon exercise of this Warrant shall bear the
following legend:
"The Shares evidenced by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of
any state. The shares may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement under
the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of any
state, or any opinion of counsel satisfactory to the Company that such
registration or qualification is not required."
4
Such certificate or certificates shall also bear any legend required by
the Shareholders' Agreement.
11. Successor and Assigns. The terms of this Warrant shall be binding
upon and shall enure to the benefit of any successors or assigns of the Company
and of the holder or holders hereof and of the Common Stock issued or issuable
upon the exercise hereof.
12. Transfer of Warrant. This Warrant shall be registered on the books
of the Company, which shall be kept by it at its principal office for that
purpose and shall be transferable only on said books by the registered holder
hereof in person or by such holder's duly authorized attorney upon surrender of
this Warrant properly endorsed, and only in compliance with the foregoing
provisions of this Warrant. Except as otherwise provided herein, and subject to
applicable securities laws, this Warrant and all rights hereunder are
transferable in whole or in part by the registered holder hereof in person or by
the registered holder's duly authorized attorney on the books of the company
upon surrender of this Warrant, or the applicable portion hereof, with a
transfer form substantially in the form attached hereto duly executed, at the
offices of the Company in Charlotte, North Carolina. The Company may deem and
treat the registered holder of this Warrant at any time as the absolute owner
hereof for all purposes and shall not be affected by any notices to the
contrary.
13. Notices. Notices under this Warrant shall be in writing and shall be
deemed to have been duly given (i) when personally delivered, (ii) when
forwarded by Federal Express, Airborne, or another private carrier which
maintains records showing delivery information, (iii) when sent via facsimile
but only if a written or facsimile acknowledgement of receipt is received by the
sending party, or (iv) when place in the United States Mail and forwarded by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the party to whom such notice is being given and, with respect to
the Company, addressed to the Company's principal office, and with respect to
the registered holder of the Warrant, addressed to the address of such holder as
maintained on the records of the Company, or to such other address as may by
furnished in writing to the parties.
14. Governing Law. This Warrant shall be governed in accordance with the
laws of the State of North Carolina without taking into account conflict of law
provisions.
IN WITNESS WHEREOF, the Company has caused this Warrant to be issued and
executed in its corporate name by its authorized officer and its corporate seal
to be affixed hereto and attested by its Secretary or Assistant Secretary.
DATED: date INTER*ACT ELECTRONIC MARKETING, INC.
By: ______________________
Title:
ATTEST:
____________________________
5
Secretary
(Corporate Seal)
Exercise Form for
Common Stock Purchase Warrant
INTER*ACT ELECTRONIC MARKETING, INC.
The undersigned hereby irrevocably subscribes for the shares of Common
Stock of Inter*Act Electronic Marketing, Inc. indicated below, upon the terms
and conditions of the attached Warrant.
No. of Shares: ___________________
Exercise Price per share:
$_________________________________
Subscriber's Name and Address: ____________________________________________
(Please print) ____________________________________________
____________________________________________
____________________________________________
Subscriber's Telephone Number: (____) ______________________________________
Subscriber's Signature: ___________________________________________________
(if individual)
Subscriber's Signature: ___________________________________________________
(if entity) (Name of Entity)
By: _____________________________________
(Signature of Authorized Person)
__________________________________________
(Title of Authorized Person)
6
Transfer Form for
Common Stock Purchase Warrant
INTER*ACT ELECTRONIC MARKETING, INC.
The undersigned registered holder of the attached Warrant hereby
irrevocable transfers the following portion of the Warrant to purchase shares of
Common Stock of Inter*Act Electronic Marketing, Inc., which transfer is subject
to the terms and conditions described in the Warrant.
Date of Transfer: _____________________________
Number of Shares Exercisable under
Warrant as of Date of Transfer _____________________________________
Portion of Warrant Transferred:
Expressed as fraction or percentage _____________________________________
Expressed as number of shares _____________________________________
Transferee's Name and Address: ____________________________________________
(Please Print) ____________________________________________
____________________________________________
____________________________________________
Transferee's Telephone Number: (_____) ____________________________________
Transferor's Signature: ____________________________________________
(if individual)
Transferor's Signature: ____________________________________________
(if entity) (Name of Entity)
By: ________________________________________
(Signature of Authorized Person)
____________________________________________
(Title of Authorized Person)
7