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Ex - 4.7
THESE SECURITIES HAVE BEEN ISSUED PURSUANT TO EXEMPTIONS FOR NONPUBLIC OFFERINGS
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, THESE SECURITIES MAY NOT
BE RESOLD OR OTHERWISE DISPOSED OF UNLESS, IN THE OPINION OF COUNSEL FOR OR
SATISFACTORY TO THE ISSUER, REGISTRATION UNDER THE APPLICABLE FEDERAL OR STATE
SECURITIES LAWS IS NOT REQUIRED OR COMPLIANCE IS MADE WITH SUCH REGISTRATION
REQUIREMENTS.
VOID AFTER 5:00 P.M. NEW YORK TIME, ON SEPTEMBER 8, 2004.
WARRANT TO PURCHASE 649,227 SHARES OF COMMON STOCK
OF
EPRISE CORPORATION
This is to certify that, FOR VALUE RECEIVED, DEUTSCHE BANK SECURITIES INC.
or its registered assigns pursuant to Section (d) hereof ("Holder"), is entitled
to purchase, subject to the provisions of this Warrant, from EPRISE CORPORATION,
a Delaware corporation (the "Company"), 649,227 fully paid, validly issued and
nonassessable shares of Common Stock, par value $.001 per share, of the Company
("Common Stock"), at the exercise price of $1.54 per share until September 8,
2004. The number of shares of Common Stock to be received upon the exercise of
this Warrant and the price to be paid for each share of Common Stock may be
adjusted from time to time as hereinafter set forth. The shares of Common Stock
deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares," and the exercise price of
a share of Common Stock as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price."
(a) EXERCISE OF WARRANT; NOTIFICATION OF EXPIRATION DATE OF WARRANT. The
Warrant may be exercised as to a minimum of 100,000 Warrant Shares at any time
or from time to time, until 5:00 P.M. New York time on September 8, 2004 (the
"Expiration Date"), provided, however, that if such day is a day on which
banking institutions in the State of New York are authorized by law to close,
then on the next succeeding day which shall not be such a day. The Warrant may
be exercised by presentation and surrender hereof to the Company at its
principal office, or at the office of its stock transfer agent, if any, with the
Purchase Form annexed hereto duly executed (with signature guaranteed if
required by the Company or its stock transfer agent) and accompanied by payment
of the Exercise Price for the number of Warrant Shares specified in such form
and any applicable taxes. The purchase price for any Warrant Shares purchased
pursuant to the exercise of this Warrant shall be paid in full upon such
exercise in cash; or by certified or bank check; or pursuant to a cashless
exercise procedure whereby the Warrant Shares issued upon exercise of this
Warrant will be sold by a broker acceptable to the Company (provided, however,
that any broker affiliated with Deutsche Bank Securities Inc. shall
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be deemed acceptable) pursuant to irrevocable instructions of the Holder to such
broker to deliver payment to the Holder promptly upon sale equal to the
difference between the Exercise Price and the sale price, in cash, and deliver
to the Company the Exercise Price for the Warrant Shares, in cash; or any
combination of the foregoing methods of paying the Exercise Price. In the
alternative, the Warrant may be exchanged for shares of Common Stock as
described in Section (1), "Right to Convert Warrant into Common Stock." As soon
as practicable after each such exercise of the Warrant, but not later than seven
(7) business days from the date of such exercise, the Company shall issue and
deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder or the
Holder's designee, except in the case of a cashless exercise. If the Warrant
should be exercised in part only, the Company shall, upon surrender of the
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder thereof to purchase the balance of the Warrant Shares
purchasable hereunder. In the event of a cash exercise, upon receipt by the
Company of the Warrant at its office, or by the stock transfer agent of the
Company at its office, in proper form for exercise, together with the exercise
price therefor and taxes as aforesaid in cash or certified or bank check and the
investment letter described below, the Holder shall be deemed to be the holder
of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be physically delivered to the Holder. In order to assure the availability
of an exemption from registration under the federal or applicable state
securities laws, the Company may condition the exercise of the Warrant upon the
Holder delivering to the Company an investment letter in the form as customarily
used by the Company from time to time in connection with the exercise of
non-registered options and warrants which are issued by the Company. It is
further understood that certificates for the Warrant Shares, if any, to be
issued upon exercise of the Warrant may contain a restrictive legend in
accordance with Section (j) hereof.
Notwithstanding anything herein to the contrary, the Company shall mail to
the Holder, by certified mail, return receipt requested, notice of the
Expiration Date of the Warrants, no later than 60 days prior to the Expiration
Date. To the extent the Company shall fail to send the required notice at the
time and in the manner set forth in the preceding sentence, the Expiration Date
of the Warrants shall be extended to a date 60 days following the date that a
written notice of the Expiration Date of the Warrants from the Company is
received by the Holder.
(b) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrants. If the Common Stock is or becomes listed on any national
securities exchange or the Nasdaq National Market, the Company shall also list
such shares on such exchange subject to notice of issuance or maintain the
listing of its Common Stock on Nasdaq, as the case may be.
(c) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrant. With respect
to any fraction of a share called for upon any exercise hereof, the Company
shall pay to the Holder an amount in
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cash equal to such fraction multiplied by the current market value of a share,
determined as follows:
(1) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for
trading on the Nasdaq National Market, the current market value shall
be the last reported sale price of the Common Stock on such exchange
or system on the last business day prior to the date of exercise of
this Warrant, or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange or system;
(2) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the
last reported bid and asked prices reported by the National Quotation
Bureau, Inc., on the last business day prior to the date of the
exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than the book value
thereof as at the end of the most recent fiscal year of the Company
ending prior to the date of the exercise of the Warrant, determined in
such reasonable manner as may be prescribed by the Board of Directors
of the Company.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. The Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company or at the office of its stock transfer
agent, if any, for other Warrants of different denominations entitling the
Holder thereof to purchase in the aggregate the same number of shares of Common
Stock purchasable hereunder. Subject to Section (j) hereof, the Holder may
transfer or assign the Warrant, in whole or in part and from time to time (i) to
a transferee or assignee who acquires a portion of the Warrant exercisable for
at least 100,000 shares or (ii) to an affiliate of the Holder. Upon surrender of
this Warrant to the Company at its principal office or at the office of its
stock transfer agent, if any, with the Assignment Form annexed hereto duly
executed (with signature guaranteed, if required by the Company or its stock
transfer agent) and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee or
assignees named in such instrument of assignment and this Warrant shall promptly
be canceled. This Warrant may be divided by or combined with other Warrants
which carry the same rights upon presentation hereof at the principal office of
the Company or at the office of its stock transfer agent, if any, together with
a written notice specifying the names and denominations in which new Warrants
are to be issued and signed by the Holder hereof. The term "Warrant" as used
herein includes any Warrants into which this Warrant may be divided or
exchanged. Upon receipt by the Company of evidence satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and in the case of loss,
theft or destruction, of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor, date and amount. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company,
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whether or not the original Warrant shall be at any time enforceable by anyone
(subject to indemnification by the Holder).
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) ANTI-DILUTION PROVISIONS. So long as this Warrant shall be outstanding,
the Exercise Price in effect at any time and the number and kind of securities
purchasable upon the exercise of the Warrants shall be subject to adjustment
from time to time upon the happening of certain events as follows:
(1) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in
shares of Common Stock, (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of
shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares, the
Exercise Price in effect at the time of the record date for
such dividend or distribution, the sale of such securities
or the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted as of the
effective date of such event by multiplying such Exercise
Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding immediately
following such event and the numerator of which shall be the
number of shares of Common Stock outstanding immediately
prior thereto. For example, if the Company declares a 2 for
1 stock distribution and the Exercise Price immediately
prior to such event was $1.00 per share, the adjusted
Exercise Price immediately after such event would be $.50
per share. Such adjustment shall be made each time any event
listed above shall occur.
(2) If the Company issues shares of Common Stock or securities
convertible into Common Stock (other than shares of Series
A, Series B and Series C Preferred Stock issued as of
November 4, 1999; Common Stock, stock options, warrants or
rights to purchase shares of Common Stock issued or granted
at not less than fair market value to officers, directors
and employees of the Company pursuant to a stock purchase,
stock option or other employee stock bonus arrangement,
provided that the maximum number of shares issuable under
any such arrangement has been approved by the holders of a
majority in interest of the holders of Preferred Stock,
voting as a single class; stock options and warrants
outstanding as of November 4, 1999; and shares of Common
Stock issuable upon conversion of any of the foregoing) for
consideration less than the Exercise Price of the Warrant on
the date of issuance of such securities, the Exercise Price
hereunder shall be equitably adjusted in accordance with the
provisions of Section 4.3 of the Company's Third Amended and
Restated
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Certificate of Incorporation (or such similar provisions as
may then be in effect with respect to the Series C Preferred
Stock of the Company).
(3) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to subsection (1) or (2) above,
the number of Warrant Shares purchasable upon exercise of
the Warrant shall simultaneously be adjusted by multiplying
the number of Warrant Shares issuable upon exercise of this
Warrant by the Exercise Price in effect on the date hereof
and dividing the product so obtained by the Exercise Price,
as adjusted pursuant to subsection (1) or (2), as the case
may be.
(4) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at
least $.05 in such price; provided, however, that any
adjustments which by reason of this subsection (f) (3) are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment required to be
made hereunder.
(5) Each computation required by this Section (f) for purposes
of determine whether the Exercise Price shall be adjusted
shall be performed by the Company's then-engaged firm of
independent certified public accountants, which shall be a
firm of recognized national reputation (the "Accounting
Firm"), on the basis of the Company's internally prepared
unaudited financial statements. Such unaudited financial
statements shall be accompanied by a certificate signed by
the President and Chief Financial Officer certifying that
such unaudited statements have been prepared in accordance
with GAAP on a basis consistently applied and include all
adjustments (consisting only of normal, recurring accruals)
necessary for a fair presentation of the financial position
and results of the Company as of the end of each such
period. The computations of the Accounting Firm shall be
final and binding on the Company and the Holder.
(6) Whenever the Exercise Price is adjusted, as herein provided,
the Company shall promptly cause a notice setting forth the
adjusted Exercise Price and adjusted number of Warrant
Shares issuable upon exercise of the Warrant to be mailed to
the Holder, at its address appearing in the records of the
Company, and shall cause a copy thereof to be mailed to its
transfer agent, if any.
(7) All calculations under this Section (f) shall be made to the
nearest cent or to the nearest Warrant Share, as the case
may be.
(8) In the event that at any time, as a result of an adjustment
made pursuant to this Section (f), the Holder of this
Warrant thereafter shall become entitled to receive any
shares of the Company, other than Common Stock, thereafter
the number of such other shares so receivable upon exercise
of this Warrant shall
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be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
subsections (1) and (2) above.
(9) Irrespective of any adjustments in the Exercise Price or the
number or kind of Warrant Shares purchasable upon exercise
of this Warrant, Warrants theretofore or thereafter issued
may continue to express the same price and number and kind
of shares as are stated in the Warrant initially issuable
pursuant to this Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as
required by the provisions of the foregoing Section, the Company shall forthwith
file in the custody of its Secretary or an Assistant Secretary at its principal
office and with its stock transfer agent, if any, an officer's certificate
showing the adjusted Exercise Price determined as herein provided, setting forth
in reasonable detail the facts requiring such adjustment, including a statement
of the number of additional shares of Common Stock, if any, and such other facts
as shall be necessary to show the reason for and the manner of computing such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the Holder or any holder of a Warrant
executed and/or delivered pursuant to Section (a) or Section (d), and the
Company shall, forthwith after each such adjustment, mail, by certified mail, a
copy of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock, or (ii) if the Company shall offer to the holders of
Common Stock for subscription or purchase by them any shares of any class or any
other rights, or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder or any holder of a Warrant executed
and/or delivered pursuant to Section (a) or Section (d), at least 15 days prior
to the date specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating the date on
which (x) a record is to be taken for the purpose of such dividend, distribution
or rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to take place and
the date, if any is to be fixed, as of which the holders of Common Stock or
other securities shall receive cash or other property deliverable upon such
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER.
(1) In case of any consolidation or merger of the Company with
or into another corporation (other than a merger with
another corporation in which merger the Company is the
continuing corporation and which does not result in any
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reclassification or capital reorganization of outstanding
shares of Common Stock of the class issuable upon exercise
of this Warrant) or in case of any sale, lease or conveyance
to another corporation of the property of the Company as an
entirety, the Company shall provide 21 days' written notice
to the Holder of such transaction, and the Holder shall
exercise the Warrant in full prior to (and conditioned upon)
the consummation of such transaction. If the Holder fails to
exercise the Warrant prior to such time, all rights of the
Holder hereunder shall terminate effective upon the
consummation of the transaction.
(2) In case of any reclassification or capital reorganization of
outstanding shares of Common Stock of the Company not
involving a transaction described in subsection (1) above,
the Company shall, as a condition precedent to such
transaction, cause effective provisions to be made so that
the Holder or any holder of a Warrant executed and/or
delivered pursuant to Section (a) or Section (d) shall have
the right thereafter by exercising the Warrant at any time
prior to the expiration of the Warrant, to purchase the kind
and amount of shares of stock and other securities and
property receivable upon such reclassification or capital
reorganization and consolidation, merger, sale or
conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in the Warrant.
The foregoing provisions of this Section (i) shall similarly
apply to successive reclassifications or capital
reorganizations of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event
that in connection with any such capital reorganization or
reclassification, consolidation, merger, sale or conveyance,
additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or
in part, for a security of the Company other than Common
Stock, any such issue shall be treated as an issue of Common
Stock covered by the provisions of subsection (1) of Section
(f) hereof.
(j) SECURITIES LAW COMPLIANCE
(1) The Holder of the Warrant, by acceptance hereof,
acknowledges that the Warrant and the shares of 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, transfer, assign or otherwise dispose of
this Warrant or any shares of Common 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 the Warrant, the Holder shall, if
requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of Common Stock
so purchased are being acquired solely for the Holder's own
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account and not as a nominee for any other party, for
investment, and not with a view toward distribution or
resale.
(2) If appropriate, the Warrant and any Warrants issued upon
exercise or substitution or upon assignment or transfer
pursuant to Section (a) or Section (d), as the case may be,
and all shares of Common Stock issued upon exercise hereof
shall be stamped or imprinted with legends setting forth the
restrictions on transfer arising under applicable federal
and state securities laws.
(k) REGISTRATION RIGHTS UNDER THE SECURITIES ACT OF 1933
(1) Commencing the date hereof, the Company shall advise the
Holder of the Warrant or of the Warrant Shares or any then
Holder of Warrants or Warrant Shares (such persons being
collectively referred to herein as "Holders") by written
notice at least 21 days prior to the filing of any
registration statement or post-effective amendment thereto
("Registration Statement") under the Securities Act of 1933,
as amended (the "Act"), covering an underwritten public
offering of equity securities of the Company solely for cash
on a form that would also permit the registration of the
Warrant Shares and shall register in any such Registration
Statement the number of Warrant Shares that the Holder shall
notify the Company it desires to register and shall include
in any such Registration Statement such information as may
be required to permit a public offering of such Warrant
Shares by the Company's underwriter(s). The Company shall
supply prospectuses and other documents as the Holder may
reasonably request in order to facilitate the public sale or
other disposition of the Warrant Shares. The Company shall
bear the entire cost and expense of a registration of
securities initiated by it under this Paragraph (1). The
Holder shall, however, bear the fees of its own counsel and
any transfer taxes and underwriting discounts or commissions
applicable to the Warrant Shares sold by it. The Company may
include other securities in any such registration statement.
The Company shall do any and all other acts and things which
may be necessary or desirable to enable the Holder to
consummate the public sale or other disposition of the
Warrant Shares, and furnish indemnification in the manner as
set forth in Paragraph (2) (a) of this Section (k), but
shall not be required to qualify as a foreign corporation to
qualify the Warrant Shares for sale under the securities
laws of any state. The Holder shall furnish information and
indemnification as set forth in Paragraph (2) (b) of this
Section (k). All decisions as to whether and when to proceed
with any Registration Statement shall be made solely by the
Company, and the Company may, in its discretion, withdraw
any Registration Statement prior to the effectiveness
thereof.
Notwithstanding the foregoing paragraph, in the event that
there is an underwritten offering of the Company's
securities offered pursuant to said
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registration statement pursuant to the immediately preceding
Paragraph, the underwriter(s) shall have the right to refuse
to permit any Warrant Shares, or to limit the amount of
Warrant Shares, to be sold by the Holder to such
underwriter(s) as such underwriter(s) may determine in its
discretion, and the Holder shall refrain from selling such
remainder of its Warrant Shares covered by such registration
statement for the period of 180 days following the effective
date and shall also refrain at any time when notified by the
Company that an amendment or supplement to the prospectus is
required. The Company shall not be obligated to keep any
Registration Statement effective for a total of more than
180 days.
(2) (a) Whenever pursuant to this Section (k) a Registration
Statement relating to the Warrant Shares is filed under the
Act, amended or supplemented, the Company will indemnify and
hold harmless each Holder of Warrant Shares covered by such
Registration Statement, amendment or supplement (such Holder
being hereinafter called the "Distributing Holder"), and
each person, if any, who controls (within the meaning of the
Act) the Distributing Holder, against any losses, claims,
damages or liabilities, joint or several, to which the
Distributing Holder or any such controlling person may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in any such Registration Statement or any
preliminary prospectus or final prospectus constituting a
part thereof or any amendment or supplement thereto, or
arise out of or are based upon the omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading; and will
reimburse the Distributing Holder and each such controlling
person for any legal or other expenses reasonably incurred
by the Distributing Holder and each controlling person for
any legal or other expenses reasonably incurred by the
Distributing Holder or such controlling person or
underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission
made in said Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement, in reliance
upon and in conformity with written information furnished by
the Distributing Holder or underwriter for use in the
preparation thereof.
(b) The Distributing Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who
have signed said Registration Statement and such amendments
and supplements thereto, each person, if any, who controls
the Company (within the meaning of the Act) and the
Company's underwriter(s) and each person, if any, who
controls such
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underwriter(s) (within the meaning of the Act) against any
losses, claims, damages or liabilities to which the Company
or any such director, officer, underwriter or controlling
person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue or alleged untrue
statement of any material fact contained in said
Registration Statement, preliminary prospectus, final
prospectus, or amendment or supplement, or arise out of or
are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in said Registration Statement,
preliminary prospectus, final prospectus or amendment or
supplement, in reliance upon and in conformity with written
information furnished by such Distributing Holder for use in
the preparation thereof; and will reimburse the Company or
underwriter or any such director, officer or controlling
person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any
such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
this Paragraph 2 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party, give
the indemnifying party notice of the commencement thereof;
but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any
indemnified party otherwise than under this Paragraph 2.
(d) In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly
notified to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party under this Paragraph 2 for any legal or other expenses
subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable
costs of investigation.
(e) The Company's agreements with respect to Warrant Shares
in this Section (k) shall continue in effect regardless of
the exercise or surrender of the Warrant until the fifth
anniversary of the Company's initial public offering
pursuant to a registration statement filed under the
Securities Act of 1933, as amended.
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(1) RIGHT TO CONVERT WARRANT INTO COMMON STOCK.
(1) RIGHT TO CONVERT. The Holder shall have the right to require
the Company to convert this Warrant as provided in this
Section (1), without cash payment, into Common Stock (the
"Net Conversion Right"). Upon exercise of the Net Conversion
Right, the Company shall deliver to the Holder (without
payment by the Holder of any Exercise Price or of any other
cash or consideration) that number of shares of Common Stock
equal to the quotient obtained by dividing (x) the value of
this Warrant at the time the Conversion Right is exercised
(determined by subtracting the aggregate Exercise Price in
effect immediately prior to the exercise of the Net
Conversion Right from the aggregate fair market value of the
shares of Common Stock issuable upon exercise of this
Warrant immediately prior to the exercise of the Net
Conversion Right) by (y) the fair market value of one share
of Common Stock immediately prior to the exercise of the Net
Conversion Right.
(2) METHOD OF EXERCISE. The Net Conversion Right may be
exercised by the Holder by the surrender of this Warrant at
the principal office of the Company together with a written
statement specifying that the Holder thereby intends to
exercise the Net Conversion Right. Certificates for the
shares of Common Stock issuable upon exercise of the Net
Conversion Right shall be delivered to the Holder within
five (5) business days following the Company's receipt of
this Warrant together with the aforesaid written statement.
(3) DETERMINATION OF FAIR MARKET VALUE. For purposes of this
Section (l), fair market value of a share of Common Stock as
of a particular date (the "Determination Date") shall be
determined in accordance with Section (c) of this Warrant.
(m) AMENDMENTS. Neither the Warrant nor any term hereof may be changed,
waived, discharged or terminated without the prior written consent of the
Holder.
(n) NO IMPAIRMENT. The Company will not 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 Warrant and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of any
Holder.
(o) GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the Commonwealth of Massachusetts.
(p) NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first class mail, postage
prepaid, addressed (a) if to the Holder, to Deutsche Banc Alex. Brown, 1 South
Street, Baltimore, Maryland 21202, Attention: Donald Notman or (b) if to the
Company, to Eprise Corporation, 1671 Worcester Road,
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Framingham, MA 01710, Attention: President, or at such other address as to the
Company shall have furnished to the Holder in writing.
IN WITNESS WHEREOF, Eprise Corporation has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: as of September 8, 1999
COMPANY: Eprise Corporation
By: /s/ J.A. Forgione
----------------------------
Name: Joseph A. Forgione
--------------------------
Title: President
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PURCHASE FORM
Dated _______________, ___
The undersigned hereby irrevocably elects to exercise its rights pursuant
to this Warrant to the extent of purchasing ______ shares of Common Stock of
Eprise Corporation and hereby makes payment of $___________, in cash, in payment
of the exercise price thereof.
The undersigned hereby irrevocably elects to exercise its rights pursuant
to this Warrant to the extent of purchasing _____ shares of Common Stock and
hereby authorizes you to deliver such shares of Common Stock for sale to
___________, and to retain from the proceeds of such sale $__________, in cash,
in payment of the exercise price thereof and to remit to the undersigned the
balance of such proceeds.
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INSTRUCTIONS FOR REGISTRATION OF STOCK
Name_____________________________________________________________
(Please typewrite or print in block letters)
Address__________________________________________________________
Signature________________________________________________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________ hereby sells,
assigns and transfers unto
Name______________________________________________________________
(Please typewrite or print in block letters)
Address___________________________________________________________
the right to purchase Common Stock of Eprise Corporation (the "Company"),
represented by this Warrant to the extent of ______ shares as to which such
right is exercisable and does hereby irrevocably constitute and appoint
_____________________________ as Attorney, to transfer the same on the books of
the Company with full power of substitution in the premises.
Date ___________, ___
Signature__________________________