Exhibit 10.3
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION UNDER, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933.
WORLDWIDE DATA, INC.
Warrant for the Purchase of Shares of common Stock
September 27, 1999 25,000
------------------ ------
Date No. of warrants
FOR VALUE RECEIVED, Worldwide Data, Inc. (Company), hereby certifies that
Generation Capital Associates, or an assign thereof, is entitled to purchase
from the Company, at any time or from time to time commencing on the date hereof
and prior to 5:00 P.M., Eastern Time, on the fifth anniversary of the date
hereof 25,000 fully paid and nonassessable shares of the common stock, of the
Company for an aggregate purchase price of $62,500 (computed on the basis of
$2.50 per share subject to adjustment). (Hereinafter, (i) said common stock,
together with any other equity securities which may be issued by the Company
with respect thereto or in substitution therefor, is referred to as the "Common
Stock," (ii) the shares of the Common Stock purchasable hereunder are referred
to as the "GCA Warrants Shares," (iii) the aggregate purchase price payable
hereunder for the GCA Warrants Shares is referred to as the "Aggregate Warrant
Price," (iv) the price payable hereunder for each of the GCA Warrants Shares is
referred to as the "Per Share Warrant Price," (v) this Warrant and all warrants
hereafter issued in exchange or substitution for this Warrant are referred to as
the "GCA Warrants" and (vi) the holder of this Warrant is referred to as the
"Holder" or "Holder(s)." The Aggregate Warrant Price, number of GCA Warrants and
the Per Share Warrant Price are subject to adjustment as hereinafter provided.
The GCA Warrants are issued pursuant to the September 20, 1999 Worldwide Data,
Inc. Financing Terms Agreement (Financing Agreement). THE TERMS OF THE FINANCING
AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE.
1. Exercise of Warrant.
a) Exercise for Cash
This Warrant may be exercised, in whole at any time or in part from time
to time, commencing on the date hereof and prior to 5:00 P.M., New York
City time, on the fifth anniversary of the date hereof, by the Holder by
the surrender of this Warrant (with the
subscription form at the end hereof duly executed) at the address of the
Escrow Agent set forth in Subsection 9(a) hereof, together with proper
payment of the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part. Payment for GCA Warrants Shares
shall be made by FedWire, certified or official bank check payable to the
order of the Company and delivered to the Escrow Agent. If this Warrant is
exercised in part, this Warrant must be exercised for a number of whole
shares of the Common Stock, and the Holder is entitled to receive a new
Warrant covering the GCA Warrants Shares which have not been exercised and
setting forth the proportionate part of the Aggregate Warrant Price
applicable to such GCA Warrants Shares. Upon such surrender of this
Warrant the Company will (a) issue a certificate or certificates in the
name of the Holder for the largest number of whole shares of the Common
Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of the Common Stock to
which the Holder shall be entitled, pay to the Holder cash in an amount
equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall
determine), and (b) deliver the other securities and properties receivable
upon the exercise of this Warrant, or the proportionate part thereof if
this Warrant is exercised in part. pursuant to the provisions of this
Warrant.
b) Cashless Exercise
In lieu of exercising this Warrant in the manner set forth in paragraph
1(a) above, the Warrant may be fully or partially exercised by surrender
of the Warrant to the Escrow Agent without payment of any other
consideration, commission or remuneration, by execution of the cashless
exercise subscription form (at the end hereof, duly executed). The number
of shares to be issued in exchange for the Warrant will be computed by
subtracting the Warrant Exercise Price from the closing bid price of the
common stock on the date of receipt of the cashless exercise subscription
form, multiplying that amount by the number of shares being exercised
pursuant to the Warrant, and dividing by the closing bid price as of the
same date.
2. Reservation of GCA Warrants Shares.
The Company agrees that, prior to the expiration of this Warrant, the
Company will at all times have authorized and in reserve, or held in
escrow, and will keep available, solely for issuance or delivery upon the
exercise of this Warrant, the shares of the Common Stock and other
securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale
or transfer (except for applicable state or federal securities law
restrictions) and free and clear of all pre-emptive rights.
3. Protection Against Dilution.
a) If, at any time or from time to time after the date of this Warrant,
the Company shall issue or distribute (for no consideration) to the
holders of shares of Common Stock evidences of its indebtedness, any
other securities of the Company or any cash,
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property or other assets (excluding a subdivision, combination or
reclassification, or dividend or distribution payable in shares of
Common Stock, referred to in Subsections 3(b) and 3(c), and also
excluding cash dividends or cash distributions paid out of net
profits legally available therefor if the full amount thereof,
together with the value of other dividends and distributions made
substantially concurrently therewith or pursuant to a plan which
includes payment thereof, is equivalent to not more than 5% of the
Company's net worth) (any such nonexcluded event being herein called
a "Special Dividend"), the Per Share Warrant Price shall be adjusted
by multiplying the Per Share Warrant Price then in effect by a
fraction, the numerator of which shall be the then current market
price of the Common Stock (defined as the average for the twenty
consecutive trading days immediately prior to the record date of the
daily closing bid price of the Common Stock as reported by the
NASDAQ level III less the fair market value (as determined
reasonably determined in good faith by the Company's Board of
Directors) of the evidences of indebtedness, securities or property,
or other assets issued or distributed in such Special Dividend
applicable to one share of Common Stock and the denominator of which
shall be such then current market price per share of Common Stock.
An adjustment made pursuant to this Subsection 3(a) shall become
effective immediately after the record date of any such Special
Dividend.
b) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater
number of shares, or (iii) issue by reclassification of its Common
Stock any shares of capital stock of the Company, the Per Share
Warrant Price shall be adjusted so that the Holder of any Warrant
upon the exercise hereof shall be entitled to receive the number of
shares of Common Stock or other capital stock of the Company which
he would have owned immediately prior thereto. An adjustment made
pursuant to this Subsection 3(b) shall become effective immediately
after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the
case of a subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this Subsection 3(b), the
Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital
stock or shares of Common Stock and other capital stock of the
Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a written notice to the Holder
of any Warrant promptly after such adjustment) shall determine the
allocation of the adjusted Per Share Warrant Price between or among
shares of such classes or capital stock or shares of Common Stock
and other capital stock.
c) In case the Company shall hereafter combine its shares of Common
Stock into a lesser number of shares (Reverse Split) the number of
Warrants shall be proportionately adjusted. The Per Share Warrant
Price shall be adjusted to the lower of (i) the average closing bid
price of the Company's Common Stock as quoted by
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NASDAQ level III for the five-day trading period (Average Price)
ending on the twentieth (20th) day subsequent to the effective date
of such Reverse Split, or (ii) the proportionate per share price
based on the Reverse Split, i.e. $1.25 per share in the event of a
two for one split.
d) Except as provided in Subsection 3(f), in case the Company shall
hereafter issue or sell any shares of Common Stock for a
consideration per share less than the Per Share Warrant Price on the
date of such issuance or sale, the Per Share Warrant Price shall be
adjusted as of the date of such issuance or sale so that the same
shall equal the consideration per share received by the Company upon
such issuance or sale; provided, however, that no adjustment of the
Per Share Warrant Price shall be required in connection with the
issuance of shares upon the exercise of presently outstanding
warrants or options.
e) Except as provided in Subsection 3(a) and 3(f), in case the Company
shall hereafter issue or sell any rights, options, warrants or
securities convertible into Common Stock entitling the holders
thereof to purchase Common Stock or to convert such securities into
Common Stock at a price per share (determined by dividing (i) the
total amount, if any, received or receivable by the Company in
consideration of the issuance or sale of such rights, options,
warrants or convertible securities plus the total consideration, if
any, payable to the Company upon exercise or conversion thereof
(Total Consideration) by (ii) the number of additional shares of
common stock issuable upon exercise or conversion of such
securities) less than the then current Per Share Warrant Price in
effect on the date of such issuance or sale, the Per Share Warrant
Price shall be adjusted as of the date of such issuance or sale so
that the same shall equal the price determined by dividing (i) the
sum of (a) the number of shares of Common Stock outstanding on the
date of such issuance or sale multiplied by the Per Share Warrant
Price plus (b) the Total Consideration by (ii) the number of shares
of Common Stock outstanding on the date of such issuance or sale
plus (iii) the maximum number of additional shares of Common Stock
issuable upon exercise or conversion of such securities.
f) In case of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party other than a
merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity
of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities
with another corporation (including any exchange effected in
connection with a merger of a third corporation into the
Company), the Holder of this Warrant shall have the right
thereafter to convert such Warrant into the kind and amount of
securities, cash or other property which he would have owned or have
been entitled to receive immediately after such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or
conveyance had this Warrant been converted
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immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or
conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests
thereafter of the Holder of this Warrant to the end that the
provisions set forth in this Section 3 shall thereafter
correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or be. in
relation to any shares of stock or other securities or property
thereafter deliverable on the conversion of this Warrant. The above
provisions of this Subsection 3(f) shall similarly apply to
successive reorganizations, reclassifications, consolidations,
mergers, statutory exchanges, sales or conveyances. The issuer of
any shares of stock or other securities or property thereafter
deliverable on the conversion of this Warrant shall be responsible
for all of the agreements and obligations of the Company hereunder.
Notice of any such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance and of said
provisions so proposed to be made, shall be mailed to the Holders of
the Warrants not less than 20 business days prior to such event. A
sale of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
g) No adjustment in the Per Share Warrant Price shall be required
unless such adjustment would require an increase or decrease of at
least $0.01 per share of Common Stock; provided, however, that any
adjustments which by reason of this Subsection 3(g) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment; provided further, however, that adjustments
shall be required and made in accordance with the provisions of this
Section 3 (other than this Subsection 3(g) not later than such time
as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable
upon exercise hereof All calculations under this Section 3 shall be
made to the nearest cent. Anything in this Section 3 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Per Share Warrant Price, in addition to those
required by this Section 3, as it in its discretion shall deem to be
advisable in order that any stock dividend, subdivision of shares or
distribution of rights to purchase stock or securities convertible
or exchangeable for stock hereafter made by the Company to its
shareholders shall not be taxable.
h) Whenever the Per Share Warrant Price is adjusted as provided in this
Section 3 and upon any modification of the rights of a Holder of
Warrants in accordance with this Section 3, the Company shall
promptly obtain, at its expense, a certificate of a firm of
independent public accountants of recognized standing selected by
the Board of Directors (who may be the regular auditors of the
Company) setting forth the Per Share Warrant Price and the number
of GCA Warrants Shares after such adjustment or the effect of such
modification, a brief statement of the facts requiring such
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adjustment or modification and the manner of computing the same and
cause copies of such certificate to be mailed to the Holders of the
Warrants.
i) If the Board of Directors of the Company shall declare any dividend
or other distribution with respect to the Common Stock, other than a
cash distribution out of earned surplus, the Company shall mail
notice thereof to the Holders of the Warrants not less than 10
business days prior to the record date fixed for determining
shareholders entitled to participate in such dividend or other
distribution.
4. Fully Paid Stock, Taxes.
The Company agrees that the shares of the Common Stock represented by each
and every certificate for GCA Warrants Shares delivered on the exercise of
this Warrant shall, at the time of such delivery, be validly issued and
outstanding, fully paid and nonassessable, and not subject to pre-emptive
rights, and the Company will take all such actions as may be necessary to
assure that the par value or stated value, if any, per share of the Common
Stock is at all times equal to or less than the then Per Share Warrant
Price. The Company further covenants and agrees that it will pay, when due
and payable, any and all Federal and state stamp, original issue or
similar taxes which may be payable in respect of the issue of any Warrant
Share or certificate therefor.
5. Registration Under Securities Act of 1933.
a) The Company agrees to register the Warrants Shares in accordance
with the terms of the Financing Agreement.
b) The Company shall (i) furnish each Holder of any GCA Warrants Shares
and each underwriter (Underwriter) of such GCA Warrants Shares with
such copies of the prospectus, including the preliminary prospectus,
conforming to the Securities Act of 1933 (Act), (and such other
documents as each such Holder or each such Underwriter may
reasonably request) in order to facilitate the sale or distribution
of the GCA Warrants Shares, (ii) use its best efforts to register or
qualify such GCA Warrants Shares under the blue sky laws (to the
extent applicable) of such jurisdiction or jurisdictions as the
Holders of any such GCA Warrants Shares and each Underwriter of
GCA Warrants Shares being sold by such Holders shall reasonably
request and (iii) take such other actions as may be reasonably
necessary or advisable to enable such Holders and such Underwriters
to consummate the sale or distribution in such jurisdiction or
jurisdictions in which such Holders shall havc reasonably
requested that the GCA Warrants Shares be sold.
c) The Company shall pay all expenses incurred in connection with any
registration or other action pursuant to the provisions of this
Section 5, other than underwriting
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discounts and applicable transfer taxes relating to the GCA Warrants
Shares.
d) The Company will indemnify the Holders of GCA Warrants Shares which
are included in any Registration Statement substantially to the same
extent as the Company may indemnify any Underwriters of a public
offering of Common Stock pursuant to the Underwriting Agreement and
such Holders will indemnify the Company (and the Underwriters, if
applicable) with respect to information furnished by them in writing
to the Company for inclusion therein substantially to the same
extent as the Underwriters have indemnified the Company.
6. Limitation on Exercise.
No Holder(s) of GCA Warrants shall be permitted to exercise any GCA
Warrants to the extent that such exercise would cause any Holder to be the
beneficial owner of more than 5% of the then outstanding WWDI Common Stock, at
that given time. This limitation shall not be deemed to prevent any Holder from
acquiring more than an aggregate of 5% of the Common Stock, so long as such
Holder does not beneficially own more than 5% of WWDI Common Stock, at any given
time.
7. Transferability.
The Company may treat the registered Holder of this Warrant as he or it
appears on the Company's books at any time as the Holder for all purposes.
The Company shall permit any Holder of a Warrant or his duly authorized
attorney, upon written request during ordinary business hours, to inspect
and copy or make extracts from its books showing the registered holders of
Warrants. All warrants issued upon the transfer or assignment of this
Warrant will be dated the same date as this Warrant, and all rights of the
Holder thereof shall be identical to those of the Holder. The holder shall
have the right to assign all or any part of this Warrant, subject to
compliance with applicable federal and/or state securities laws.
8. Loss, etc., of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor.
and denomination.
9. Warrant Holder Not Shareholders.
Except as otherwise provided herein, this Warrant does not confer upon the
Holder any right to vote or to consent to or receive notice as a
shareholder of the Company, as such, in
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respect of any matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
10. Communication.
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall
be deemed to have been given if the same is in writing and is mailed by
first-class mail, postage prepaid, or sent by overnight courier or
facsimile, addressed to:
a) If to the Company:
Worldwide Data, Inc.
36 Toronto Street, Suite 250
Toronto, Ontario
Canada M5C 2C5
Fax: 416/214-6299
Tel: 416/214-6296
Attn: Bronson Conrad, Chief Executive Officer
with copy to:
Steven Davis, Esq.
Heller, Ehrman, White & McAuliffe
711 Fifth Avenue
New York, NY 10022-3194
Fax: 212/832-3353
Tel: 212/832-8300
or such other address as the Company has designated in writing to the Holder; or
b) If to GCA:
Generation Capital Associates
1085 Riverside Trace
Atlanta, GA 30328
Fax: 404/255-2218
Tel: 404/303-8450
Attn: Frank E. Hart, General Partner
or such other address as the GCA has designated in writing to the Company; and
c) If to Escrow Agent:
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David A. Rapaport. Esq.
333 Sandy Springs Circle, Suite 230
Atlanta, GA 30328
Fax: 404/257-9125
Tel: 404/257-9150
or such other address as the Escrow Agent has designated in writing to the
Company and Holder(s).
11. Headings.
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
12. Applicable Law.
This Warrant shall be governed by and construed in accordance with the
law of the State of Georgia without giving effect to the principles of
conflicts of law thereof.
IN WITNESS WHEREOF, Worldwide Data, Inc. has caused this Warrant to be signed by
its Chief Executive Officer and its corporate seal to be hereunto affixed by its
Secretary this 27th day of September, 1999
/s/Bronson Conrad
- --------------------------
Bronson Conrad
President
ATTEST:
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Secretary
Corporate Seal
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SUBSCRIPTION
The undersigned, _____________________, pursuant to the provisions of the
foregoing Warrant, hereby agrees to subscribe for and purchase
______________shares of the Common Stock of Worldwide Data, Inc. covered by said
Warrant, and makes payment therefor in full at the price per share provided by
said Warrant.
Dated: __________________________ Signature: ________________________________
Name: _____________________________________
Address: __________________________________
__________________________________
Tax I.D. No. _______________________________
- --------------------------------------------------------------------------------
CASHLESS EXERCISE SUBSCRIPTION
The undersigned ________________________ pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe to that number of shares of
stock of Worldwide Data, Inc. as are issuable in accordance with the formula set
forth in paragraph 1(b) of the Warrant, and makes payment therefore in full by
cancellation of _________________ Warrants. (If this is a partial exercise of
the Warrant a new Warrant for the remaining number of unexercised Warrants shall
be issued by the Company.)
Dated: __________________________ Signature: ________________________________
Name: _____________________________________
Address: __________________________________
__________________________________
Tax I.D. No. _______________________________
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ASSIGNMENT
FOR VALUE RECEIVED ______________________ hereby sells, assigns and transfers
unto ______________ the foregoing Warrant and all rights evidenced thereby, and
does irrevocably constitute and appoint ______________ attorney, to transfer
said Warrant to the books of ______________________
Dated: __________________________ Signature: ________________________________
Name: _____________________________________
Address: __________________________________
__________________________________
Tax I.D. No. _______________________________
- --------------------------------------------------------------------------------
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ___________________hereby assigns and transfers unto
_____________________ the right to purchase ______________ shares of the Common
Stock of Worldwide Data, Inc. by the foregoing Warrant, and a proportionate part
of said Warrant and the rights evidenced hereby, and does irrevocably constitute
and appoint _____________________ , attorney, to transfer that part of said
Warrant on the books of
Dated: __________________________ Signature: ________________________________
Name: _____________________________________
Address: __________________________________
__________________________________
Tax I.D. No. _______________________________
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