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EXHIBIT 4.3
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY
NOT BE TRANSFERRED UNTIL (I) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO
OR (II) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER
THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED TRANSFER.
STOCK PURCHASE WARRANT
This Warrant is issued as of this _____ day of _______, 1999, by
@plan.inc, a Tennessee corporation (the "Company"), to __________________
("Holder").
AGREEMENT:
Section 1. Issuance of Warrant; Term; Replacement.
(a) The Company hereby grants to Holder the right to purchase
___________ shares of the Company's common stock, no par value per share (the
"Common Stock").
(b) The shares of Common 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 seven (7) years
from the date hereof, or if such day is a day on which banking institutions in
Tennessee are authorized by law to close, then on the next succeeding day that
shall not be such a day.
(c) Upon receipt by the Company of evidence reasonably 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
shall execute and deliver a new Warrant of like tenor and date. Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.
Section 2. Exercise Price. The exercise price (the "Exercise Price")
per share for which all or any of the Shares may be purchased pursuant to the
terms of this Warrant shall initially be $______.
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Section 3. Exercise. This Warrant may be exercised by the Holder hereof
(but only on the conditions hereafter set forth) in whole or in part upon
delivery of written notice of intent to exercise to the Company at the following
address: Three Landmark Square, Suite 400, Stamford, Connecticut 06901,
Attention: Chief Executive Officer, or such other address as the Company shall
designate in a written notice to the Holder hereof, together with this Warrant
and payment to the Company of the aggregate Exercise Price of the Shares so
purchased. The Exercise Price shall be payable by certified or cashier's check,
immediately available funds or by delivery of shares of Common Stock (with the
value of such Common Stock to be based on the reported closing price of the
Common Stock on the NASDAQ National Market System on the date this Warrant is
exercised) or such other method mutually acceptable to the Company and the
Holder. Upon exercise of this Warrant as aforesaid, the Company shall as
promptly as practicable, and in any event within fifteen (15) days thereafter,
execute and deliver to the Holder of this Warrant a certificate or certificates
for the total number of whole Shares for which this Warrant is being exercised
in such names and denominations as are requested by such Holder. If this Warrant
shall be exercised with respect to less than all of the Shares, the Holder shall
be entitled to receive a new Warrant covering the number of Shares in respect of
which this Warrant shall not have been exercised, which new Warrant shall in all
other respects be identical to this Warrant.
Section 4. Covenants and Conditions. The above provision is subject to
the following:
(a) Neither this Warrant nor the Shares have been registered under the
Securities Act or any state securities laws ("Blue Sky Laws"). The Holder
acknowledges and agrees that this Warrant has been acquired for investment
purposes and not with a view to distribution or resale in violation of the
registration provisions of the Securities Act. This Warrant may not be pledged,
hypothecated, sold, made subject to a security interest, or otherwise
transferred without (i) an effective registration statement for such Warrant
under the Securities Act and such applicable Blue Sky Laws or (ii) an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to the
Company and its counsel, that registration is not required under the Securities
Act or under any applicable Blue Sky Laws; and transfer of Shares issued upon
the exercise of this Warrant shall be restricted in the same manner and to the
same extent as the Warrant, and the certificates representing such Shares shall
bear substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO OR (II) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE ACT OR SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect the
compliance of the issuance of this
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Warrant and any shares of Common Stock issued upon exercise hereof with
applicable federal and state securities laws.
(b) The Company covenants and agrees that all Shares that may be issued
upon exercise of this Warrant will, upon issuance and payment therefor, be
legally and validly issued and outstanding, fully paid and nonassessable, free
from all taxes, liens, charges, and preemptive rights, if any, with respect
thereto or to the issuance thereof. The Company shall at all times reserve and
keep available for issuance upon the exercise of this Warrant such number of
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of this Warrant.
Section 5. Adjustment of Exercise Price and Number of Shares Issuable.
The Exercise Price and the number of Shares (or other securities or property)
issuable upon exercise of this Warrant shall be subject to adjustment from time
to time upon the occurrence of any of the events enumerated in this Section 5.
(a) Common Stock Reorganization. If the Company shall (i) subdivide or
consolidate its outstanding shares of Common Stock (or any class thereof) into a
greater or smaller number of shares; (ii) pay a dividend or make a distribution
on its Common Stock (or any class thereof) in shares of its capital stock; or
(iii) issue by reclassification of its Common Stock (or any class thereof) any
shares of its capital stock (any such event described in clauses (i), (ii), or
(iii) being called a "Common Stock Reorganization"), then the Exercise Price and
the type of securities for which this Warrant is exercisable shall be adjusted
immediately such that the Holder thereafter shall be entitled to receive upon
exercise of this Warrant the aggregate number and type of securities that it
would have received if this Warrant had been exercised immediately prior to such
Common Stock Reorganization.
(b) Capital Reorganizations. If there shall be any consolidation,
merger, or amalgamation of the Company with another person or entity or any
acquisition of capital stock of the Company by means of a share exchange, other
than a consolidation, merger, or share exchange in which the Company is the
continuing corporation, or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety, or any reorganization or
recapitalization of the Company (any such event being called a "Capital
Reorganization"), then the Holder of this Warrant shall no longer have the right
to purchase Common Stock, but shall have instead the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) that the Holder would have owned or
have been entitled to receive pursuant to such Capital Reorganization if this
Warrant had been exercised immediately prior to the effective date of such
Capital Reorganization. As a condition to effecting any Capital Reorganization,
the Company or the successor or surviving corporation, as the case may be, shall
assume by a supplemental agreement, satisfactory in form, scope, and substance
to the Holder (which shall be mailed or delivered to the Holder of this Warrant
at the last address of such Holder appearing on the books of the Company) the
obligation to deliver to such Holder such shares of stock, securities, cash, or
property as, in accordance with the foregoing provisions, such Holder may be
entitled to purchase after giving effect to the Capital Reorganization, and all
other obligations of the Company set forth in this Warrant.
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(c) Adjustment Rules. Any adjustments pursuant to this Section 5 shall
be made successively whenever an event referred to herein shall occur. No
adjustment shall be made pursuant to this Section 5 in respect of the issuance
from time to time of shares of Common Stock upon the exercise of this Warrant or
upon the exercise or conversion of any other stock or other securities
convertible into or exchangeable for Common Stock ("Convertible Securities") or
any rights to subscribe for or to purchase, or any warrants or options for the
purchase of, Common Stock or Convertible Securities.
(d) Notice of Adjustment. Not less than 10 days prior to the record
date or effective date, as the case may be, of any action that requires or might
require an adjustment or readjustment pursuant to this Section 5, the Company
shall give notice to the Holder of such event, describing such event in
reasonable detail and specifying the record date or effective date, as the case
may be, and, if determinable, the required adjustment and the computation
thereof. If the required adjustment is not determinable at the time of such
notice, the Company shall give notice to the Holder of such adjustment and
computation promptly after such adjustment becomes determinable.
Section 6. Registration Rights. Holder shall be entitled to certain
demand, piggy-back and S-3 registration rights as described in Section 2 of the
Amended and Restated Shareholders' Agreement, dated as of December 31, 1997,
among the Company, Holder and certain other shareholders.
Section 7. Warrant Transfer Provisions. THIS WARRANT MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS PREVIOUSLY
CONSENTED TO IN WRITING BY THE COMPANY, AND NO SALE, TRANSFER, ASSIGNMENT,
HYPOTHECATION OR OTHER DISPOSITION OF THIS WARRANT PRIOR TO SUCH DATE SHALL BE
VALID OR EFFECTIVE UNLESS PREVIOUSLY CONSENTED TO IN WRITING BY THE COMPANY. Any
transfer of this Warrant, if previously consented to by the Company, is
registrable at the office or agency of the Company referred to in Section 9
below by the Holder in person or by his duly authorized attorney, upon surrender
of this Warrant properly endorsed.
Section 8. No Rights or Liabilities as a Shareholder. This Warrant
shall not entitle the Holder to any voting rights or other rights as a
shareholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder to purchase Shares, and no mere enumeration
herein of the rights or privileges of the Holder, shall give rise to any
liability of Holder for the Exercise Price or as a shareholder of the Company,
whether such liability is asserted by the Company or by creditors of the
Company.
Section 9. Notices. All notices, requests and other communications
required or permitted to be given or delivered hereunder to the holder of this
Warrant shall be in writing, and shall be personally delivered, or shall be sent
by certified or registered mail, postage prepaid and addressed, to Holder at the
address shown for Holder on the books of the Company, or at such other address
as shall have been furnished to the Company by notice from Holder. All notices,
requests and other communications required or permitted to be given or delivered
hereunder to the Company shall be
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in writing and shall be personally delivered, or shall be sent by certified or
registered mail, postage prepaid and addressed to the office of the Company at
Three Landmark Square, Suite 400, Stamford, Connecticut 06901, or at such other
address as shall have been furnished to the Holder by notice from the Company.
All notices, requests and other communications shall be deemed to have been
given either at the time of the delivery thereof to the person entitled to
receive such notice at the address of such person for purposes of this Section
9, or, if mailed, at the completion of the third full day following the date of
such mailing thereof to such address, as the case may be.
Section 10. Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant, but the Company shall pay the Holder an amount equal to the fair market
value of such fractional share of Common Stock in lieu of each fraction of a
share otherwise called for upon any exercise of this Warrant.
Section 11. Applicable Law. The Warrant is issued under and shall for
all purposes be governed by and construed in accordance with the laws of the
State of Tennessee applicable to contracts made and to be performed wholly
within such state without regard to its conflict of laws rules.
Section 12. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may not
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party (or any predecessor in interest thereof) against
which enforcement of the same is sought.
(b) Descriptive Headings. The descriptive headings of the
several Paragraphs of this Warrant are inserted for purposes of reference only
and shall not affect the meaning or construction of any of the provisions
hereof.
(c) Successors and Assigns. This Warrant shall be binding upon
any entity succeeding to the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date first above written.
@plan.inc,
a Tennessee corporation
By:
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Name:
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Title:
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Holder
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WARRANT EXERCISE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _______________ shares of Common Stock of
@plan.inc, a Tennessee corporation, and hereby makes payment of ______________
in payment therefor.
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Signature
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Signature, if jointly held
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Date
INSTRUCTIONS FOR ISSUANCE OF STOCK
(if other than to the registered holder of the within Warrant)
Name
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(please typewrite or print in block letters)
Address
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Social Security or
Taxpayer Identification Number
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