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EXHIBIT 10.11
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS WARRANT AND SUCH UNDERLYING SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, RENOUNCED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH
APPLICABLE LAWS OF ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IN NOT REQUIRED AND SUCH
FOREIGN JURISDICTION LAWS HAVE BEEN SATISFIED.
BUILDNET, INC.
STOCK PURCHASE WARRANT
This Warrant is issued as of this 21st day of May 1999 (the "Effective
Date") by BuildNet, Inc., a North Carolina corporation (the "Company"), to GE
Capital Equity Investments, Inc., or permitted assigns (the "Holder").
1. Issuance of Warrant; Term; Price.
1.1 Issuance. Subject to the terms and conditions set forth
herein, Company hereby grants to Holder the right to purchase up to 271,319
shares (which number of shares is subject to adjustment as described below) of
Company's Series B Preferred Stock (the "Warrant Stock"). This Warrant shall
become exercisable based on General Electric Company's operating unit, General
Electric Appliances ("GEA") meeting the milestones as set forth below. In all
cases, achievement of the milestones below will be based on GEA's active
participation in helping to promote the Company's electronic commerce
application and network (the "BuildNet System"). In order to meet the milestones
as set forth below, the Company acknowledges that GEA and the Company will work
together to bring the parties to contract, and it is not required that GEA alone
bring the party to contract, so long as GEA has an active role in introducing
the prospect (manufacturer, distributor or builder) to the Company and uses its
good faith efforts to provide reasonable assistance to Company personnel in
promoting, negotiating and/or closing the prospect's participation in the
BuildNet System.
Commencing on the Commencement Date, as defined below, GEA will
commence sales and marketing efforts designed to increase participant enrollment
in the BuildNet System. "Commencement Date" means the date that GEA, in its good
faith reasonable judgment, (which shall not be unreasonably withheld) confirms
that the Company has provided it with sales and marketing materials sufficient
to allow GEA to solicit manufacturers, distributors and builders in a manner
reasonably likely to result in such persons agreeing to participate in the
BuildNet System. The parties agree that said sales and marketing materials will
be completed within ninety (90) days of the Effective Date, unless extended by
mutual consent. GEA agrees to use its
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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reasonable commercial efforts to help the Company prepare said materials. The
Warrant may be exercised for the following number of shares of Warrant Stock
based on GEA's achievement of the corresponding milestone(s).
(a) For every [*] identified in Exhibit A for which
the Initial Warrant Trigger has been satisfied during the first [*] months after
the Commencement Date, and for which the Final Warrant Trigger is satisfied, and
for every [*] identified in Exhibit A for which the Initial Warrant Trigger has
been satisfied during the next [*] months thereafter (months [*] after the
Commencement Date) and for which the Final Warrant Trigger has been satisfied,
the Warrant will become exercisable as to [*] shares of Warrant Stock.
(b) For every [*] identified in Exhibit A for which
the Initial Warrant Trigger has been satisfied during the first [*] months after
the Commencement Date, and for which the Final Warrant Trigger is satisfied, and
for every [*] identified in Exhibit A for which the Initial Warrant Trigger has
been satisfied during the next [*] months thereafter (months [*] after the
Commencement Date), and for which the Final Warrant Trigger has been satisfied,
the Warrant will become exercisable as to [*] shares of Warrant Stock.
(c) For every [*] identified on Exhibit A for which
the initial Warrant Trigger has been satisfied during the first [*] months after
the Commencement Date, and for which the Final Warrant Trigger is satisfied and
for every [*] for which the Initial Warrant Trigger has been satisfied during
the next [*] months thereafter (months [*] after the Commencement Date), and for
which the Final Warrant Trigger has been satisfied, the Warrants will become
exercisable as to [*] shares of Warrant Stock.
(d) For purposes of this section, "Initial Warrant
Trigger" means, with respect to any manufacturer, distributor or builder listed
on Exhibit A, that (i) such person was introduced to the Company by GEA or its
agents (whether such introduction was made prior to or after the Commencement
Date and regardless of whether the Company has previously been introduced to or
had discussions with such person prior to the Effective Date), (ii) following
such introduction, GEA has used its good faith reasonable efforts to assist the
Company in following up with such person in order to secure such person's
participation in the BuildNet System, and (iii) the Company and such person
enter into a non-binding letter of intent regarding the BuildNet System within
the 12 or 18 month period after the Commencement Date, as applicable. "Final
Warrant Trigger" means, with respect to any manufacturer, distributor or builder
listed on Exhibit A, that the Company and such person enter into a definitive
agreement regarding the BuildNet System within 6 months after execution of a
letter of intent. In the event the BuildNet System is not operational for a
given customer within said 6-month period, said period shall be extended until
the BuildNet System has been made operational.
(e) If GEA thereafter helps bring other participants
to the BuildNet System who meet the criteria used in creating Exhibit A, the
participants will, by mutual agreement of the Company and GEA (which agreement
shall not be unreasonably withheld) be counted toward the milestone goals
notwithstanding that the participants are not then on Exhibit
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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A. In addition, the Company and GEA may mutually agree to count toward the
milestone goals other participants brought by GEA who do not meet the criteria
used in creating Exhibit A.
1.2 Term. The shares of Warrant Stock issuable upon exercise
of this Warrant are hereinafter referred to as the "Shares." This Warrant shall
be exercisable at any time and from time to time from the date hereof until May
21, 2004.
1.3. Exercise Price. The exercise price (the "Warrant Price")
per share for which all or any of the Shares may be purchased pursuant to the
terms of this Warrant shall be equal to [*].
2. Adjustment of Warrant Price, Number and Kind of Shares. The Warrant
Price and the number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time and the Company agrees
to provide notice upon the happening of certain events as follows.
2.1 Dividends in Stock Adjustment. In case at any time or from
time to time on or after the date hereof the holders of the Warrant Stock of the
Company (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received, or, on or after the record
date fixed for the determination of eligible shareholders, shall have become
entitled to receive, without payment therefor, other or additional securities or
other property (other than cash) of the Company by way of dividend or
distribution, then and in each case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Warrant Stock receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional securities or
other property (other than cash) of the Company which such holder would hold on
the date of such exercise had it been the holder of record of such Warrant Stock
on the date hereof and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and/or all other
additional securities or other property receivable by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
this subsection 2.1 and subsections 2.2 and 2.3 of this Section 2.
2.2. Reorganization, Reclassification, Merger, Consolidation
or Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Series B Preferred Stock or
the Common Stock of the Company), or sell, transfer or otherwise dispose of all
or substantially all its property, assets or business to another corporation
and, pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of the Series B Preferred Stock or Common Stock of the Company,
then Holder shall have the right thereafter to receive, upon exercise of this
Warrant and payment of the Warrant Price then in effect, the number of shares of
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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common stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property receivable upon or as a result
of such reorganization, reclassification, merger, consolidation or disposition
of assets to which the holder would have been entitled upon such consummation of
such event if such holder had exercised this Warrant immediately prior to such
event. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant to be performed and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as may be deemed
appropriate (as determined by resolution of the Board of Directors of the
Company) in order to provide for adjustments of the Warrant Price and the number
and kind of securities issuable upon the exercise of this Warrant which shall be
as nearly equivalent as practicable to the adjustments provided for in this
Section 2. For purposes of this Section 2.2, "common stock of the successor or
acquiring corporation" shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock
of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities which
are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the happening of a specified event and
any warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 2.2 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
2.3 Stock Splits and Reverse Stock Splits. If at any time on
or after the date hereof the Company shall subdivide its outstanding shares of
Warrant Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of this Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Warrant Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
2.4 Conversion or Redemption of Warrant Stock. If at the time
of any exercise of this Warrant there are no other shares of Warrant Stock
outstanding (such shares having been converted or redeemed), this Warrant shall
be exercisable for Common Stock instead of Warrant Stock in the same amounts,
for the same prices and on the same terms, and all references herein to "Warrant
Stock" shall be changed to refer to "Common Stock."
3. No Fractional Shares. No fractional shares of Warrant Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares that would otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one share of
Warrant Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
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4. No Shareholder Rights. This Warrant as such shall not entitle its
holder to any of the rights of a shareholder of the Company until the holder has
exercised this Warrant in accordance with Section 6 or Section 7 hereof.
5. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Warrant Stock a sufficient number of shares to provide for the issuance
of Warrant Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Warrant Stock upon the exercise of this
Warrant.
6. Exercise of Warrant. This Warrant may be exercised by Holder by the
surrender of this Warrant at the principal office of the Company, accompanied by
payment in full of the purchase price of the Shares purchased thereby, as
described above. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person or entity entitled to receive the Shares or other
securities issuable upon such exercise shall be treated for all purposes as the
holder of such shares of record as of the close of business on such date. As
promptly as practicable, the Company shall issue and deliver to the person or
entity entitled to receive the same a certificate or certificates for the number
of full shares of Warrant Stock issuable upon such exercise, together with cash
in lieu of any fraction of a share as provided above. The shares of Warrant
Stock issuable upon exercise hereof shall, upon their issuance, be fully paid
and nonassessable.
7. Right to Convert Warrant for Warrant Stock.
7.1 Right to Convert. In addition to and without limiting the
rights of the Holder under the terms of this Warrant, the Holder shall have the
right to convert this Warrant or any portion hereof (the "Conversion Right")
into shares of Warrant Stock as provided in this Section 7, subject to the
restrictions set forth in subsection 7.3 hereof. Upon exercise of the Conversion
Right with respect to a particular number of shares subject to this Warrant (the
"Converted Warrant Shares"), the Company shall deliver to the Holder (without
payment by the Holder of any cash or other consideration) that number of shares
of Warrant Stock equal to the quotient obtained by dividing (x) the value of
this Warrant (or the specified portion hereof) on the Conversion Date (as
defined in subsection 7.2 hereof ), which value shall be determined by
subtracting (A) the aggregate Warrant Price of the Converted Warrant Shares
immediately prior to the exercise of the Conversion Right from (B) the aggregate
fair market value of the Converted Warrant Shares issuable upon exercise of this
Warrant (or the specified portion hereof) on the Conversion Date (as herein
defined) by (y) the fair market value of one share of Warrant Stock on the
Conversion Date (as herein defined). No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share on the Conversion Date (as herein
defined).
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7.2 Method of Exercise. The 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 Conversion Right and indicating the number of shares
subject to this Warrant that are being surrendered (referred to in subsection
7.1 hereof as the Converted Warrant Shares) in exercise of the Conversion Right.
Such conversion shall be effective immediately upon surrender of this Warrant
(the "Conversion Date"). Certificates for the shares of Warrant Stock issuable
upon exercise of the Conversion Right (or any other securities deliverable in
lieu thereof under subsection 2.1) shall be issued as of the Conversion Date and
shall be delivered to the Holder immediately following the Conversion Date.
7.3 Restrictions on Conversion Right. In the event that, in
connection with or following a public offering of the Company's Common Stock,
the Conversion Right contained herein would, at any time this Warrant remains
outstanding, be deemed by the Company' s independent certified public
accountants to trigger a charge to the Company's earnings for financial
reporting purposes, then the Conversion Right as specified in section 7.1 shall
automatically terminate upon the Company's written notice to the Holder of such
adverse accounting treatment.
7.4 Determination of Fair Market Value. For purposes of this
Section 7, fair market value of a share of Warrant Stock as of a particular date
(the "Determination Date") shall mean:
(a) In the case of a public offering, the initial
"Price to Public" specified in the final prospectus with respect to such
offering if the Holder elects to exercise its Warrants at that time. If the
Holder elects to exercise its warrants in whole or in part after a public
offering, the fair market value of a share of Warrant Stock shall be the last
closing price per share on such date;
(b) In the case of an acquisition of a controlling
interest (51% or more) of BuildNet stock, the effective per share consideration
to be received in an Acquisition by holders of the Warrant Stock, which price
shall be as specified in the agreement entered into with respect to such
Acquisition and determined assuming receipt of the aggregate exercise price of
all outstanding warrants to purchase Warrant Stock (the "Outstanding Warrants"),
or if no such price is set forth in the agreement concerning the Acquisition,
then as determined in good faith by the Company's Board of Directors upon a
review of relevant factors, including the aggregate exercise price of all
Outstanding Warrants; or
(c) In any other case, the price determined in good
faith by the Company's Board of Directors.
8. Certificate of Adjustment. Whenever the Warrant Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company
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setting forth the nature of such adjustment and a brief statement of the facts
requiring such adjustment.
9. Notice of Proposed Transfers. Prior to any proposed transfer of this
Warrant or the shares of Warrant Stock received on the exercise of this Warrant
(the "Securities"), unless there is in effect a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering the proposed
transfer, the Holder thereof shall give written notice to the Company of such
Holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer in sufficient detail, and
shall, if the Company so requests, be accompanied (except in transactions in
compliance with Rule 144) by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Securities Exchange Commission (the "Commission") to the effect that the
transfer of such Securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of the Securities shall be entitled to transfer
the Securities in accordance with the terms of the notice delivered by the
Holder to the Company; provided, however, no such registration statement or
opinion of counsel shall be necessary for a transfer by a Holder to any
affiliate of such Holder, or a transfer by a Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner
or the transfer by gift, will or intestate succession of any partner to his
spouse or lineal descendants or ancestors, if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
the original Holder hereunder. Each certificate evidencing the Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for the Company such legend is not required in
order to establish compliance with any provisions of the Securities Act.
10. Replacement of Warrants. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant, and in the case of any such loss, theft or
destruction of the Warrant, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company, and reimbursement to
the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of the Warrant if mutilated, the Company will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
11. Miscellaneous. This Warrant shall be governed by the laws of the
State of New York The headings in this Warrant are for purposes of convenience
of reference only, and shall not be deemed to constitute a part hereof. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions. All notices and other
communications from the Company to the holder of this Warrant shall be delivered
personally or mailed by first class mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who shall
have furnished an address to the Company in writing, and if mailed shall be
deemed given three days after deposit in the U.S. Mail.
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12. Taxes. The Company shall pay all issue taxes and other governmental
charges (but not including any income taxes of a Holder) that may be imposed in
respect of the issuance or delivery of the Shares or any portion thereof.
13. Amendment. Any term of this Warrant may be amended with the written
consent of the Company and the Holder. Any amendment effected in accordance with
this Section 13 shall be binding upon the Holder of this Warrant, each future
holder of such Warrant, and the Company.
14. No Impairment. The Company shall not by any action, including,
without limitation, amending its Articles of Incorporation or comparable
governing instruments or through any reorganization, transfer of assets,
consolidation, merger, dissolution, 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 actions as may be
necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) not
increase the par value of any shares of Series B Preferred Stock or Common Stock
receivable upon the exercise of this Warrant above the amount payable therefor
upon such exercise immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Series B
Preferred Stock or Common Stock upon the exercise of this Warrant, and (c) use
its best efforts to obtain all such authorizations, exemptions or consents from
any public regulatory body having jurisdiction thereof as may be necessary to
enable the Company to perform its obligations under this Warrant.
Upon the request of Holder, the Company will at any time
during the period this Warrant is outstanding acknowledge in writing, in form
reasonably satisfactory to Holder, the continuing validity of this Warrant and
the obligations of the Company hereunder.
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IN WITNESS WHEREOF, the undersigned officer of the Company has set his
hands as of the date first above written.
BUILDNET, INC.
By: /s/ Keith T. Brown
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Keith T. Brown, President
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EXHIBIT A
TOP MANUFACTURERS, DISTRIBUTORS AND BUILDERS
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[*]
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.