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Exhibit 4.6
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED
COMMON STOCK WARRANT
Warrant No. CS-((Number)) - Amended and Restated
Connected Corporation
RECITAL
Connected Corporation, a Delaware corporation (hereinafter with its
successors called the "Company") and ((Name)) (the "Holder"), among others,
executed an Unsecured Convertible Promissory Note and Warrant Purchase Agreement
dated June ((Date)), 1999, (the "Agreement"), pursuant to which the Company
issued to the Holder: (1) an Unsecured Subordinated Convertible Promissory Note
dated June ((Date)), 1999 (the "Note"); and (2) a Common Stock Warrant dated
June ((Date)), 1999, and labeled with the designation CS-((Number)) (the
"Warrant"). Pursuant to Section 16 of the Warrant, the Warrant could be amended,
modified or waived with the written consent of the Company and the holders of
Warrants representing at least 50% of the number of shares of Common Stock then
issuable upon the exercise of the Warrants. On October 31, 1999, the Company and
the holders of Warrants representing at least 50% of the number of shares of
Common Stock then issuable upon the exercise of the Warrants agreed to amend and
restate the Warrant, as set forth below, by executing an Amendment to Unsecured
Subordinated Convertible Promissory Note and Warrant Purchase Agreement,
Unsecured Subordinated Convertible Promissory Note, and Common Stock Warrant.
Void after June ((Date)), 2004
1. Issuance. This Amended and Restated Common Stock Warrant is issued
to the Holder by the Company in substitution and exchange for the Warrant. This
Amended and Restated Warrant is intended to evidence and represent the rights of
the Holder under the Warrant, and is not intended as a novation thereof.
References to the Warrant shall mean this Amended and Restated Warrant for the
purposes of the remainder hereof.
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2. (a) Exercise of Warrant to Purchase Common Stock. Subject to the
terms and conditions hereinafter set forth, the registered holder of this
Warrant (the "Holder"), is entitled upon surrender of this Warrant with the
subscription form annexed hereto duly executed, at the office of the Company, 63
Fountain Street, Framingham, Massachusetts 01701, or such other office as the
Company shall notify the Holder of in writing, to purchase from the Company at a
price per share of Sixty-Five Cents ($0.65) (the "Purchase Price") an amount of
fully paid and nonassessable shares of Common Stock, $0.001 par value, of the
Company (the "Common Stock"). The Warrant may not be exercised until the
earliest of October 31, 1999, a Qualified Financing (as defined below) or a
Liquidation Transaction (as defined below). Until such time as this Warrant is
exercised in full or expires, the Purchase Price and the Common Stock issuable
upon exercise of this Warrant are subject to adjustment as hereinafter provided.
(b) Common Stock; Warrant Denominator. For purposes hereof,
Qualified Financing means the issuance and sale by the Company of shares of a
newly-designated series or class of Preferred Stock or other securities (the
"Qualified Financing Securities") for an aggregate sale price of at least
$3,000,000.00 net of any amount received from the conversion of the Notes (as
defined in the Purchase Agreement, as defined below) and Warrants. If the
Qualified Financing shall occur on or before October 31, 1999, the term "Warrant
Denominator" shall mean the per share purchase price of the Qualified Financing
Securities. If the Company sells, conveys, liquidates, or otherwise disposes of
all or substantially all fixed property, assets or business in any transaction
or series of related transactions or mergers into, consolidates with any other
corporation or entity or effects any transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Corporation is transferred to another person or entity on or before October 31,
1999 (a "Liquidation Transaction") or if the Qualified Financing does not occur
on or before October 31, 1999, the term "Warrant Denominator" shall be $4.20 per
share. The number of shares of Common Stock purchasable at the Purchase Price
upon exercise of this Warrant shall be equal to the quotient of (i)
((M_200_of_Principal_Investors_Note)), divided by (ii) the Warrant Denominator.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in
cash or by check in immediately available funds, (ii) by the surrender by the
Holder to the Company of any promissory notes or other obligations issued by the
Company, with all such notes and obligations so surrendered being credited
against the Purchase Price in an amount equal to the principal amount thereof
plus accrued interest to the date of surrender, or (iii) by any combination of
the foregoing. The Board shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of any securities the Holder may wish to
deliver to the Company pursuant to clause (iii) above.
4. Net Issue Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Holder such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
Amended and Restated Common Stock Warrant -- Page 2
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X = Y (A-B)
-------
A
where
X = the number of shares to be issued to the Holder pursuant
to this Section 4.
Y = the number of shares of Common Stock covered by this
Warrant in respect of which the net issue election is made
pursuant to this Section 4.
A = the fair market value of one share of Common Stock, as
determined in good faith by the Board, as at the time the net
issue election is made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the
time the net issue election is made pursuant to this Section
4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. Easy Sale Exercise. In lieu of the payment method set forth in
Section 4 above, when permitted by law and applicable regulations (including
Nasdaq and NASD rules), the Holder may pay the Purchase Price through a "same
day sale" commitment from the Holder (and if applicable a broker-dealer that is
a member of the National Association of Securities Dealers (a "NASD Dealer"),
whereby the Holder irrevocably elects to exercise this Warrant and to sell a
portion of the Shares so purchased to pay for the Purchase Price and the Holder
(or, if applicable, the NASD Dealer) commits upon sale (or, in the case of the
NASD Dealer, upon receipt) of such Shares to forward the Purchase Price directly
to the Company.
6. Partial Exercise. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
7. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
8. Expiration Date; Automatic Exercise. This Warrant shall expire at
the close of business on June ((Date)), 2004, or effective upon the closing of a
firm commitment underwritten public offering of shares of Common Stock in which
(i) the aggregate price paid for such shares by the public shall be at least
$10,000,000 and (ii) the price paid by the public for such shares shall be at
least $8.00 per share (appropriately adjusted to reflect any subdivision,
combination or stock dividend of or with respect to the Common Stock) (the
"Qualifying Public Offering"), whichever is earlier, and shall be void
thereafter (the "Expiration Date"). Notwithstanding the
Amended and Restated Common Stock Warrant -- Page 3
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foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 4 hereof, without any further action on
behalf of the Holder, immediately prior to the time this Warrant would otherwise
expire pursuant to the preceding sentence.
9. Reserved Shares; Valid Issuance. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full and the conversion into shares of Common Stock receivable upon
such exercise. The Company further covenants that such shares as may be issued
pursuant to such exercise will, upon issuance, be duly and validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issuance thereof.
10. Stock Dividends. If after the Original Issue Date (as defined
below) the Company shall subdivide the Common Stock, by split-up or otherwise,
or combine the Common Stock, or issue additional shares of Common Stock in
payment of a stock dividend on the Common Stock, the number of shares issuable
on the exercise of this Warrant shall forthwith be proportionately increased in
the case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.
11. Mergers and Reclassifications. If after the Original Issue Date
there shall be any reclassification, capital reorganization or change of the
Common Stock (other than as a result of a subdivision, combination or stock
dividend provided for in Section 10 hereof), or any consolidation of the Company
with, or merger of the Company into, another corporation or other business
organization (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change of the outstanding Common Stock), or any sale or conveyance to another
corporation or other business organization of all or substantially all of the
assets of the Company, then, as a condition of such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, lawful
provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall thereafter have the right to purchase, at a total price not to
exceed that payable upon the exercise of this Warrant in full, the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock which might have
been purchased by the Holder immediately prior to such reclassification,
reorganization, change, consolidation, merger, sale or conveyance (or, if there
are no holders of Common Stock at such time, by a holder of the number of shares
of Common Stock which might have been acquired by the Holder immediately prior
to such reclassification, reorganization, change, consolidation, merger, sale or
conveyance upon the exercise of this Warrant in full and the conversion into
shares of Common Stock of all shares of Common Stock receivable upon such
exercise), and in any such case appropriate provisions shall be made with
respect to the rights and interest of the Holder to the end that the provisions
hereof (including without limitation, provisions for the adjustment of the
Purchase Price and the number of shares issuable hereunder) shall thereafter be
applicable in relation to any shares of stock or other securities and property
thereafter deliverable upon exercise hereof.
Amended and Restated Common Stock Warrant -- Page 4
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12. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 12,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
13. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of a firm of independent public accountants setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment.
14. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
15. Other Warrants. This Warrant is one of a series of warrants
(collectively, the "Warrants") that were originally issued by the Company
pursuant to an Unsecured Subordinated Convertible Promissory Note and Warrant
Purchase Agreement between the Company and the Investors, dated June ((Date)),
1999, among the Company and the other parties thereto (as the same may be
amended from time to time, hereinafter referred to as the "Purchase Agreement").
The "Original Issue Date" of this Warrant is June ((Date)), 1999.
16. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the holders of Warrants
representing at least 50% of the number of shares of Common Stock then issuable
upon the exercise of the Warrants. No such amendment, modification or waiver
shall be effective as to this Warrant unless the terms
Amended and Restated Common Stock Warrant -- Page 5
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of such amendment, modification or waiver shall apply with the same force and
effect to all of the other Warrants then outstanding.
17. Warrant Register; Transfers, Etc.
(a) The Company will maintain a register containing the names
and addresses of the registered holders of the Warrants. The Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
(b) Subject to compliance with applicable federal and state
securities laws and transferee becoming subject to the obligations of the
Purchase Agreement, this Warrant may be transferred by the Holder with respect
to any or all of the shares purchasable hereunder. Upon surrender of this
Warrant to the Company, together with the assignment hereof properly endorsed,
for transfer of this Warrant as an entirety by the Holder, the Company shall
issue a new warrant of the same denomination to the assignee. Upon surrender of
this Warrant to the Company, together with the assignment hereof properly
endorsed, by the Holder for transfer with respect to a portion of the shares of
Common Stock purchasable hereunder, the Company shall issue a new warrant to the
assignee, in such denomination as shall be requested by the Holder hereof, and
shall issue to such Holder a new warrant covering the number of shares in
respect of which this Warrant shall not have been transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and denomination
and deliver the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company,
provided, however, that so long as ((Name)) is the registered holder of this
Warrant, no indemnity shall be required other than its written agreement to
indemnify the Company against any loss arising from the issuance of such new
warrant.
18. No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
19. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware.
Amended and Restated Common Stock Warrant -- Page 6
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20. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
21. Business Days. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Massachusetts, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
22. HSR Act. The Company hereby acknowledges that exercise of this
Warrant by Holder may subject the Company and/or the Holder to the filing
requirements of the Hart Scott Rodino Antitrust Improvements Act of 1976 (the
"HSR Act") and that Holder may be prevented from exercising this Warrant until
the expiration or early termination of all waiting periods imposed by the HSR
Act ("HSR Act Restrictions"). If on or before the Expiration Date the Holder has
not been able to complete the exercise of this Warrant prior to the Expiration
Date because of HSR Act Restrictions, the Holder shall be entitled to complete
the process of exercising this Warrant in accordance with the procedures
contained herein notwithstanding the fact that completion of the exercise of
this Warrant would take place after the Expiration Date or the completion of the
Qualifying Public Offering so long as the Holder has made the initial filing
required under the HSR Act within one month following the Expiration Date.
[Remainder of Page Left Intentionally Blank]
Amended and Restated Common Stock Warrant -- Page 7
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Dated: November 3, 1999 Connected Corporation
(Corporate Seal) By:__________________________
David A. Cane, President
Attest:
__________________________
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Subscription
To: _________________________ Date: ___________________
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
_________________________
Signature
_________________________
Name for Registration
_________________________
Address
Net Issue Election Notice
To: _________________________ Date: ___________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase _______ shares of Common Stock pursuant to this Warrant. The
certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
_________________________
Signature
_________________________
Name for Registration
_________________________
Address
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Assignment
For value received ____________________________ hereby sells,
assigns and transfers unto ______________________________________
______________________________________________________________________
Please print or typewrite name and address of Assignee
______________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_______________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:_______________________
_________________________________
In the Presence of:
______________________________
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List of Warrant Holders
1. Technologies for Information & Entertainment III, LP
2. Middlefield Ventures, Inc.
3. Ronald O. Lachman
4. Solstice Capital
5. Softbank America, Inc.
6. Craig Randall
7. Norman Meisner
8. Carl Lazarus
9. James Priest
10. David Cane
11. Charles Robbins
12. Charles Kline
13. William Keating
14. David Arthur Norman and Mamie Ruth Norman, as Trustees of the Norman Family
Revocable Trust
15. J3D Limited Partnership
16. H&Q Connected Investors
17. Hambrecht & Quist Employee Venture Fund, L.P. II