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EXHIBIT 4.3
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE
SECURITIES LAWS. NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID
SHARES MAY BE EFFECTED WITHOUT (I) AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO, OR (II) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL TO
THE COMPANY, THAT AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND APPLICABLE
STATE SECURITIES LAWS IS AVAILABLE.
Warrant No. l STOCK PURCHASE WARRANT No. of Shares 100,550
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To Subscribe for and Purchase Common Stock of
CONNECTED CORPORATION
THIS CERTIFIES that, for value received, SOFTBANK Holdings Inc. (together
with any subsequent transferees of all or any portion of this Warrant, the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, to subscribe for and purchase from CONNECTED CORPORATION, a Delaware
corporation (hereinafter called the "Company"), at the price hereinafter set
forth in Section 2, up to one hundred thousand five hundred fifty (100,550)
fully paid and non-assessable shares (the "Shares") of the Company's Common
Stock, $.001 par value per share (the "Common Stock").
1. DEFINITIONS. As used herein the following term shall have the following
meaning:
"ACT" means the Securities Act of 1933, as amended, or a successor statute
thereto and the rules and regulations of the Securities and Exchange Commission
issued under that Act, as they each may, from time to time, be in effect.
2. PURCHASE RIGHTS. The purchase rights represented by this Warrant shall
be exercisable by the Holder in whole or in part, in accordance with the
following schedule:
Percentage of the Company's
Anniversary of Company's Customers Sourced by Cumulative Maximum Number
First Customer Shipment SOFTBANK of Warrants Exercisable
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6 month anniversary At least 20% 10,055 (10%)
12 month anniversary At least 20% 25,138 (25%)
18 month anniversary At least 20% 50,275 (50%)
24 month anniversary At least 20% 100,550 (100%)
For purposes of the foregoing schedule: the "Company's First Customer
Shipment" shall be deemed to have occurred on the first day of the month next
succeeding the month in which the Company first provided services for a fee to a
customer(s); the "Percentage of the Company's Customers Sourced by SOFTBANK"
shall be determined as follows: on each of the above anniversary dates, the
cumulative number of the Company's customers sourced by SOFTBANK Holdings Inc.
and its then "affiliated companies" (companies in which SOFTBANK has then
invested at least $1,000,000 or any affiliated partnerships managed by
SOFTBANK) ("SOFTBANK"), shall be expressed as a percentage of the total number
of the Company's customers, provided, however, that only fifty (50%) percent of
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Publishing Systems, Inc. customers sourced by SOFTBANK for the Company
shall be deemed to have been sourced by SOFTBANK for purposes hereof, and,
provided further, that any person with which the Company had a relationship
independent of SOFTBANK, prior to such person becoming a customer of the
Company, except as provided herein, shall not be deemed to have been sourced by
SOFTBANK for purposes hereof. Subject to the foregoing, for purposes hereof,
"customers sourced by SOFTBANK" means a person or entity introduced to the
Company by SOFTBANK, who, subsequent to such introduction, becomes a customer
of the Company. With respect to any of the above anniversary dates, in the event
that the number of SOFTBANK sourced customers is less than twenty (20%) percent
of the Company's total customers, the number of Warrants which shall be
exercisable shall be equal to the product of (i) a fraction, the numerator of
which is equal to the percentage of the Company's total customers sourced by
SOFTBANK, and the denominator of which is twenty (20%) percent; and (ii) the
maximum number of Warrants which may be exercised on the anniversary date in
question, as set forth in the above schedule. For example, if, as of the 18
month anniversary date, SOFTBANK sourced customers represent 15% of the
Company's total customers, the number of Warrants exercisable would be
37,706.25, which is equal to (15% + 20%) x 50,275.
Within 30 days of each of the above anniversary dates, the Company shall
provide SOFTBANK with a certificate, signed by the President of the Company,
stating as of the respective anniversary date the number of the Company's
customers sourced by SOFTBANK, as determined in accordance herewith, as well as
the total number of the Company's customers.
The purchase rights represented by this warrant shall expire on June 12,
2001.
Subject to this Section 2, this Warrant may be exercised for Shares at a
price of four dollars ($4.00) per share, subject to adjustment as provided in
Section 6 (the "Warrant Purchase Price").
3. EXERCISE OF WARRANT. Subject to Section 2 above, the purchase rights
represented by this Warrant may be exercised, in whole or in part and from time
to time, by the surrender of this Warrant and the duly executed Notice of
Exercise (the form of which is attached as Exhibit A) at the principal office of
the Company and by the payment to the Company, by check, of an amount equal to
the then applicable Warrant Purchase Price per share multiplied by the number of
Shares then being purchased. Upon exercise, the Holder shall be entitled to
receive, within a reasonable time, a certificate or certificates, issued in the
Holders name or in such name or names as the Holder may direct, for the number
of Shares so purchased. The Shares so purchased shall be deemed to be issued as
of the close of business on the date on which this Warrant shall have been
exercised.
4. SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company covenants that
the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance in accordance herewith, be fully
paid and non-assessable, and free from all liens and charges with respect to the
issue thereof. During the period within which the purchase rights represented by
the Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. NO FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant. In lieu thereof, a cash payment shall be made equal to
such fraction multiplied by the fair market value of such shares of Common
Stock, as determined in good faith by the Company's Board of Directors.
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6. ADJUSTMENTS OF WARRANT PURCHASE PRICE AND NUMBER OF SHARES. If there
shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is
not the surviving corporation in any such transaction, the Board of Directors
of the surviving corporation) in the aggregate number and kind of shares
subject to this Warrant, and the number and kind of shares and the price per
share then applicable to shares covered by the unexercised portion of this
Warrant.
7. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. SALE OR TRANSFER OF THE WARRANT AND THE SHARES; LEGEND. The Warrant and
the Shares shall not be sold or transferred unless either (i) they first shall
have been registered under the Act and applicable State Securities laws, or (ii)
the Company first shall have been furnished with an opinion of legal counsel
satisfactory to the Company to the effect that such sale or transfer is exempt
from the registration requirements of the Act and applicable State Securities
laws. Each certificate representing any Warrant shall bear the legend set out
on page 1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
THE SHARES EVIDENCED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
Such Warrant and Shares may be subject to additional restrictions on transfer
imposed under applicable state and federal securities law.
9. MODIFICATIONS AND WAIVERS. This Warrant may not be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which enforcement of the same is sought.
10. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the Holder or the Company shall be delivered, or
shall be sent by certified or registered mail, postage prepaid, to the Holder at
its address shown on the books of the Company or in the case of the Company, at
the address indicated therefor on the signature page of this Warrant, or, if
different, at the principal office of the Company.
11. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss,
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theft, destruction or mutilation of this Warrant or any stock certificate and,
in the case of any such loss, theft or destruction, of an indemnity or security
reasonably satisfactory to it, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.
12. REPRESENTATIONS AND WARRANTIES OF HOLDER. By accepting this Warrant,
the Holder represents and warrants that he, she or it is acquiring this Warrant
and the Shares for his, her or its own account, for investment and not with a
view to, or for sale in connection with, any distribution thereof or any part
thereof. Holder represents and warrants that he, she or it is (a) experienced in
the evaluation of businesses similar to the Company, (b) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Company, (c) has the ability to bear
the economic risks of an investment in the Company, (d) has been furnished with
or has had access to such information as is specified in subparagraph (b)(2) of
Rule 502 promulgated under the Act and (e) has been afforded the opportunity to
ask questions of and to receive answers from the officers of the Company and to
obtain any additional information necessary to make an informed investment
decision with respect to an investment in the Company.
13. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the obligations of
the Company relating to the Shares issuable upon exercise of this Warrant shall
survive the exercise and termination of this Warrant and all of the covenants
and agreements of the Company shall inure to the benefit of the successors and
assigns of the Holder.
14. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
IN WITNESS WHEREOF, CONNECTED CORPORATION has caused this Warrant to be
executed under seal by its officer thereunto duly authorized.
ORIGINAL ISSUANCE DATE: June 12, 1996
CONNECTED CORPORATION
CORPORATE
SEAL
By: /s/ David A. Cane
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David A. Cane, President
Address: 63 Fountain Street
Framingham, MA 01701
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EXHIBIT A
NOTICE OF EXERCISE
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To: CONNECTED CORPORATION
1. The undersigned hereby elects to purchase ____ shares of Common Stock of
CONNECTED CORPORATION pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name or names as are specified
below.
3. The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares. The undersigned further represents that such shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended, and applicable State Securities laws or
(ii) the Company first shall have been furnished with an opinion of legal
counsel reasonably satisfactory to the Company to the effect that such sale or
transfer is exempt from applicable registration requirements.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
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(Name)
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(Address)
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(Signature)
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(Date)