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EXHIBIT 10.21(a)
WARRANT PURCHASE AGREEMENT
This WARRANT PURCHASE AGREEMENT dated April 10, 2000 (the "Agreement"),
is made by and between i3 Mobile, Inc., a Delaware corporation, with its
principal offices at 181 Harbor Drive, 3rd Floor, Stamford, Connecticut 06902
(the "Corporation"), and MSNBC Interactive News LLC, a Delaware limited
liability company with its principal offices at One Microsoft Way, Redmond, WA
98052-6399 (the "Purchaser").
The Corporation wishes to sell to the Purchaser, and the Purchaser
wishes to acquire from the Corporation, a Common Stock Purchase Warrant, in the
form of Exhibit A (the "Warrant"), to purchase an aggregate of Twenty Thousand
(20,000) shares of Common Stock, par value $.01 per share, of the Corporation,
upon the terms and conditions hereinafter set forth
Reference is hereby made to that certain written Distribution Agreement
between the Corporation and the Purchaser (the "Distribution Agreement").
NOW THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement and of the representations, warranties, conditions and
promises hereinafter contained, intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE I
ISSUANCE OF WARRANT
Purchaser agrees to pay Corporation the amount of Fifty Thousand Dollars
(US$50,000.00) for the Warrant.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants to the Purchaser and agrees
that:
2.1. Organization; Good Standing The Corporation is a corporation
duly organized, validly existing and subsisting under the laws of the State of
Delaware and is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the nature of its business or the
ownership of its property makes such qualification necessary, except where the
failure to be so qualified will not have a material adverse effect on the
Corporation, and has the corporate power and authority to own and lease its
properties, to carry on its business as presently conducted, and to execute,
deliver and perform its obligations under this Agreement and the Warrant.
2.2. Due Authorization The execution, delivery and performance of
this Agreement and the Warrant have been duly authorized by all requisite
corporate action by the Corporation and will not violate or result in a breach
of any provision of any law, statute, rule or regulation, any order of any court
or other agency, the Articles of Incorporation (the "Charter") or Bylaws of the
Corporation (the "Bylaws"), or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon the properties or assets of
the Corporation.
2.3. Binding Obligation; No Consents This Agreement and the Warrant
have been duly executed and delivered by the Corporation and constitute valid
and legally binding obligations of the Corporation, enforceable in accordance
with their respective terms, except as rights to indemnity and contribution
under the Warrant may be limited by applicable law and except as the enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by general
equitable principles. No registration or filing with, or consent or approval of,
or other action by, any Federal, state or other governmental department,
commission, board, bureau, agency or instrumentality or any third party is
necessary for the execution, delivery and performance of this Agreement or the
Warrant or for the issuance of the shares of Common Stock issuable upon exercise
of the Warrant (the "Warrant Shares") other than those required under applicable
federal and state securities laws (the "Securities Consents and Filings"). The
Corporation covenants and agrees to make and obtain all required Securities
Consents and Filings within the applicable statutory periods prescribed for such
consents and filings.
2.4. Capitalization The authorized capital stock of the Corporation
consists of Twenty two Million Twenty-seven Thousand Two Hundred Sixty-five
(22,027,265) shares. All of the shares of Common Stock issuable under the
Warrant have been duly reserved for issuance upon exercise of the Warrant.
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2.5. Litigation, Etc. There are no material (i) actions, suits,
claims, legal or administrative proceedings or to the Corporation's knowledge,
investigations pending against the Corporation or any of its subsidiaries
relating to or affecting the Corporation, whether at law or in equity, or before
or by any governmental authority or arbitrator, which if determined adversely
against the Corporation or any of its subsidiaries could reasonably be expected
to materially adversely affect the business, results of operations, financial
condition, assets, liabilities or prospects of the Corporation and its
subsidiaries, taken as a whole, or (ii) judgments, decrees, injunctions or
orders of any governmental authority or arbitrator against the Corporation or
any of its subsidiaries that could reasonably be expected to materially
adversely affect the business, results of operations, financial condition,
assets, liabilities or prospects of the Corporation and its subsidiaries, taken
as a whole.
2.6. Corporate and Financial Information. The Corporation has
delivered to Purchaser copies of the Corporation's initial public offering
prospectus dated as of April 6, 2000 ("Prospectus"). The information contained
in the Prospectus is in accordance with the books and records of the Corporation
and in all material respects present fairly the financial condition and results
of operations of the Corporation, as at the dates and for the periods indicated,
and have been prepared in accordance with generally accepted accounting
principles consistently applied, except as may be otherwise stated therein and,
with respect to any unaudited financial statements, except for such adjustments,
consistently applied, necessary for such fair presentation. The information
contained in the Prospectus is true, correct and complete in all material
respects as of the respective dates of the information set forth therein, and
the Prospectus, as of its date, does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which such statements were made.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Corporation that:
3.1. Organization The Purchaser is a limited liability company duly
formed and validly existing under the laws of the State of Delaware and has the
requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
3.2. Due Authorization The execution, delivery and performance of
this Agreement have been duly authorized by all requisite action by the
Purchaser.
3.3. Binding Obligation; No Consents This Agreement constitutes a
valid and legally binding obligation of the Purchaser, enforceable in accordance
with its terms. No registration or filing with, or consent or approval of, or
other action by, any Federal, state or other governmental department,
commission, board, bureau, agency or instrumentality or any third party is
necessary for the execution, delivery and performance of this Agreement by the
Purchaser.
3.4. Investment Representations
(a) The Purchaser is acquiring the Warrant hereunder and
will acquire Warrant Shares upon the exercise of the Warrant for its own
account, for investment and not with a view to the distribution thereof.
(b) The Purchaser is an "accredited investor" (as such term
is defined in Rule 501(a) promulgated under the Securities Act of 1933).
ARTICLE IV
MISCELLANEOUS
4.1. Amendment, Modification or Waiver This Agreement shall not be
altered or otherwise amended except pursuant to an instrument in writing signed
by each of the parties hereto.
4.2. Entire Agreement; Content of Exhibits This Agreement, the
Exhibit attached hereto and the Distribution Agreement contain the entire
agreement of the parties with respect to the transactions contemplated hereby
and thereby and supersede all prior agreements or understandings among the
parties with respect thereto.
4.3. Descriptive Headings Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
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4.4. Counterparts This Agreement may be executed in two counterparts,
and each such counterpart hereof shall be deemed to be an original instrument,
but all such counterparts together shall constitute but one agreement.
4.5. Governing Law This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington, without regard to its
conflicts of laws principles.
4.6. Benefits of Agreement All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Anything contained herein to the
contrary notwithstanding, this Agreement shall not be assignable by any party
hereto without the consent of the other party hereto.
IN WITNESS WHEREOF, each of the parties has caused this Warrant Purchase
Agreement to be executed on its behalf as of the date first above written.
CORPORATION: i3 Mobile, Inc.
By /s/ Stephen G. Maloney
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Name: STEPHEN G. MALONEY
Title: PRESIDENT & CEO
PURCHASER: MSNBC Interactive, LLC
BY /s/ Peggy White
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NAME: PEGGY WHITE
TITLE: DIRECTOR