EXHIBIT 10.24
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
NOOSH, Inc.
Warrant for the Purchase of Shares of Common Stock
No. W-C5 350,000 Shares
FOR VALUE RECEIVED, NOOSH, Inc., a California corporation (the "Company"),
with its principal office at 3401 Hillview Avenue, Palo Alto, CA 94304, hereby
certifies that R.R. Donnelley and Sons Company (the "Holder") is entitled,
subject to the provisions of this Warrant, to purchase from the Company, at such
times and in such increments as set forth below in Section 1 commencing on
January 25, 2000 (the "Effective Date") and prior to the Expiration Date (as
defined in Section 10 below) three hundred fifty thousand (350,000) fully paid
and nonassessable shares of Common Stock of the Company, subject to adjustment
as hereinafter provided.
The Holder may purchase such shares of Common Stock at the price per share
of eleven dollars ($11.00) (as appropriately adjusted pursuant to Section 7
hereof) on an increment by increment basis as set forth below in Section 1 (the
"Exercise Price"). The term "Common Stock" shall mean the aforementioned Common
Stock of the Company, together with any other equity securities that may be
issued by the Company in addition thereto or in substitution therefor as
provided herein.
The number of shares of Common Stock to be received upon the exercise of
this Warrant and the price to be paid per share upon such exercise are subject
to adjustment from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares."
Section 1. Exercise of Warrant. This Warrant may only be exercised prior
to the Expiration Date according to the following schedule (but in no event for
more than 350,000 shares) and provided that each increment of Warrant Shares may
only be exercised in whole or in part during the one year period commencing upon
the date of achievement of the milestone (or
1.
from the Effective Date with respect to the initial increment of 50,000 shares)
relating to such increment ("Milestone Date"):
- ------------------------------------------------------------------------------------------------
Number of Warrant Exercise Price Per Milestone
Shares That Are Share
Exercisable
- --------------------------------------------------------------------------------------------------
Initial Increment 50,000 $11.00 Effective Date
- --------------------------------------------------------------------------------------------------
First Year 50,000 $11.00 For each $50,000,000
Increment(s) in ePrint Solutions
Orders on the Service
prior to December 31,
2000
- ---------------------------------------------------------------------------------------------------
Second Year 100,000 $11.00 For each $200,000,000
Increments(s) in ePrint Solutions
Orders on the Service
from January 1, 2001
to December 31, 2001
- --------------------------------------------------------------------------------------------------
Total: up to a maximum of
350,000
- --------------------------------------------------------------------------------------------------
For the purposes of the table above, "ePrint Solutions Orders" shall mean the
aggregate dollar value of orders run by ePrint Solutions on the Service (as
defined below) after January 25, 2000, as such amount is determined in good
faith by the Company within thirty (30) days following each calendar month
through December 31, 2001. For the purposes of this Warrant, the term "Service"
means the Company's proprietary Internet-based service as offered by the Company
through www.noosh.com or any successor web site, as such service may be revised,
-------------
augmented, superseded, enhanced, modified or supplemented from time to time.
To exercise, Holder shall surrender to the Company at its principal office at
the address set forth in the initial paragraph hereof the Warrant (or at such
other address as the Company may hereafter notify the Holder in writing) with
the Purchase Form annexed hereto duly executed and accompanied by proper payment
of the Exercise Price in lawful money of the United States of America in the
form of a check, subject to collection, for the number of Warrant Shares
specified in the Purchase Form. Upon receipt by the Company of this Warrant and
such Purchase Form, together with proper payment of the Exercise Price, at such
office, and subject to compliance with applicable law, including any waiting
period applicable under Hart-Scott-Rodino regulations, the Holder shall be
deemed to be the holder of record of the Warrant Shares, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be actually
delivered to the Holder.
Section 2. Right to Convert Warrant into Stock: Net Issuance.
2.
(a) 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 thereof (the "Conversion Right") into
shares of Common Stock as provided in this Section 2 pursuant to the exercise
schedule, increments, and exercise price set forth in Section 1 above. 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 exercise price or
any cash or other consideration) (X) that number of shares of fully paid and
nonassessable Common Stock equal to the quotient obtained by dividing the value
of this Warrant (or the specified portion hereof) on the Conversion Date (as
defined in subsection (b) hereof), which value shall be determined by
subtracting (A) the aggregate Exercise 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 (1) share of Common Stock on the
Conversion Date (as herein defined).
Expressed as a formula, such conversion shall be computed as follows:
X = B - A
--------------------
Y
Where: X = the number of shares of Common Stock to be issued to
holder
Y = the fair market value (FMV) of one (1) share of Common
Stock
A = the aggregate Exercise Price (i.e., Converted Warrant
Shares x Exercise Price)
B = the aggregate FMV (i.e. FMV x Converted Warrant Shares)
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 hereinafter defined). For purposes
of Section 2 of this Warrant, shares issued pursuant to the Conversion Right
shall be treated as if they were issued upon the exercise of this Warrant.
(b) 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 which are being surrendered (referred to in subsection (a) hereof
as the Conversion Warrant Shares) in exercise of the Conversion Right. Subject
to compliance with applicable law, including any waiting period applicable under
Hart-Scott-Rodino regulations, such conversion shall be effective upon receipt
by the Company of this
3.
Warrant together with the aforesaid written statement, or on such later date as
is specified therein (the "Conversion Date"), and, at the election of the holder
hereof, may be made contingent upon an IPO (as defined in Section 10 below) or a
Change in Control (which for the purposes of this Warrant shall mean (i) the
sale of all or substantially all of the assets of the Company, or (ii) the
closing date of a merger or consolidation of the Company with or into any other
entity, including a reverse triangular merger involving the Company (other than
a merger or consolidation in which the holders of the voting power of the
Company immediately prior to such consolidation or merger hold a majority of the
surviving or resulting entity immediately following such consolidation or
merger)). Certificates for the shares issuable upon exercise of the Conversion
Right and, if applicable, a new warrant evidencing the balance of the shares
remaining subject to this warrant, shall be issued as of the Conversion Date and
shall be delivered to the holder as soon as possible.
(c) Determination of Fair Market Value. For purposes of this Section 11,
"fair market value" of a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(i) If the Conversion Right is exercised in connection with, and
contingent upon, an IPO, and if the Company's registration statement relating to
such IPO ("Registration Statement") has been declared effective by the SEC, then
the initial "Price to Public" specified in the final prospectus with respect to
such offering.
(ii) If the Conversion Right is exercised in connection with, and
contingent upon, a Change in Control, then the portion of the purchase price
paid by the acquirer that such share would be entitled to in such transaction.
(iii) If the Conversion Right is not exercised in connection with,
and contingent upon, an IPO or a Change in Control, then as follows:
(1) If traded on a securities exchange, the fair market value
of the Common Stock shall be deemed to be the closing price of the Common Stock
on the Determination Date; and
(2) If traded over-the-counter, the fair market value of the
Common Stock shall be deemed to be the closing bid price of the Common Stock on
the Determination Date; and
(3) If there is no public market for the Common Stock, then
fair market value shall be determined in good faith by the Board of Directors of
the Company.
Section 3. Reservation of Shares. The Company hereby agrees that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise of this Warrant. All such
shares shall be duly authorized and, when issued upon such exercise in
accordance with the terms of this Warrant, shall be validly issued, fully paid
and nonassessable.
4.
Section 4. Fractional Interest. The Company will not issue a fractional
share of Common Stock upon exercise of this Warrant. Instead, the Company will
deliver its check for the current fair market value of the fractional share, as
determined in good faith by the Board of Directors of the Company.
Section 5. Assignment or Loss of Warrant.
(a) The Holder of this Warrant shall not be entitled, without
obtaining the consent of the Company, to assign, by operation of law or
otherwise, its interest in this Warrant in whole or in part to any person or
persons.
(b) Upon receipt of evidence satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of indemnification satisfactory to the Company, and
upon surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.
Section 6. Rights of the Holder. The Holder shall not, by virtue hereof,
be entitled to any rights of a stockholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant and that certain Amended and Restated Investor Rights Agreement, dated
January 25, 2000 (the "Investor Rights Agreement"), of which Holder is a party.
Nothing contained in this Warrant shall be construed as conferring upon the
Holder hereof the right to vote or to consent or to receive notice as a
stockholder of the Company on any matters or with respect to any rights
whatsoever as a stockholder of the Company. No dividends or interest shall be
payable or accrued in respect of this Warrant or the interest represented hereby
or the Warrant Shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised in accordance with its terms.
Section 7. Adjustment of Exercise Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification of Outstanding Securities. In case of any
reclassification, change or conversion of securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), the Company shall execute a new Warrant (in form and substance
reasonably satisfactory to the Holder of this Warrant) providing that the Holder
of this Warrant shall have the right to exercise such new Warrant and upon such
exercise to receive, in lieu of each share of Common Stock theretofore issuable
upon exercise of this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification or change
by a holder of one share of Common Stock. Such new Warrant shall provide for
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 7. The provisions of this subsection
(a) shall similarly apply to successive reclassification or changes.
5.
(b) Subdivisions or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Exercise Price and the number of Warrant Shares issuable
upon exercise hereof shall be proportionately adjusted.
(c) Merger. If at any time prior to the Expiration Date there shall
be a merger or consolidation of the Company with or into another corporation
when the Company is not the surviving corporation, then, as part of such merger
or consolidation, lawful provision shall be made so that the Holder of the
Warrant evidenced hereby shall thereafter be entitled to receive upon exercise
of rights granted herein, during the period specified herein and upon payment of
the Exercise Price, the number of shares of stock or other securities or
property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise of the
rights granted in this Warrant would have been entitled in such merger or
consolidation if such rights had been exercised immediately before such merger
or consolidation. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Warrant with respect to the rights and
interests of the Holder after the merger or consolidation.
(d) Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend payable in shares of Common Stock
(except any distribution specifically provided for in the foregoing subsections
(a) and (b)), then the Exercise Price shall be adjusted, from and after the date
of determination of stockholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (a) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution and the number of
Warrant Shares subject to this Warrant shall be proportionately adjusted.
(e) Minimum Adjustment. No adjustment in the Exercise Price of this
Section 7 shall be required unless such adjustment would require an increase or
decrease of at least $.05 in such Exercise Price; provided, however, that any
adjustments which by reason of this subsection are not required to be made,
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 7 shall be made to the nearest cent or to
the nearest share, as the case may be.
(f) Notice of Record Date. In the event of any taking by the Company
of a record of its stockholders for the purpose of determining stockholders who
are entitled to receive payment of any dividend (other than a cash dividend) or
other distribution, any right to subscribe for, purchase or otherwise acquire
any share of any class or any other securities or property, or to receive any
other right, or for the purpose of determining stockholders who are entitled to
vote in connection with any proposed merger or consolidation of the Company with
or into any other corporation, or any proposed sale, lease or conveyance of all
or substantially all of the assets of the Company, or any proposed liquidation,
dissolution or winding up of the Company, the Company shall mail to the Holder
of this Warrant, at least twenty (20) days prior to the date
6.
specified therein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right.
(g) No Adjustment Upon Exercise of Warrants. No adjustments shall
be made under any Section herein in connection with the issuance of Warrant
Shares upon exercise of the Warrants.
Section 8. Officer's Certificate. Whenever the Exercise Price shall be
adjusted as required by the provisions of Section 7, the Company shall deliver
an officer's certificate showing the adjusted Exercise Price determined as
herein provided, setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment. Each such officer's
certificate shall be signed by the chairman, president or chief financial
officer of the Company.
Section 9. Transfer to Comply with the Securities Act of 1933. This
Warrant may not be sold, assigned, pledged, hypothecated, encumbered or in any
other manner transferred or disposed of, in whole or in part. The Warrant
Shares, nor any interest in them, may be sold, assigned, pledged, hypothecated,
encumbered or in any other manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities or Blue Sky laws and the terms and conditions hereof. Each Warrant
shall bear a legend in substantially the same form as the legend set forth on
the first page of this Warrant. Each certificate for Warrant Shares issued upon
exercise of this Warrant, unless at the time of exercise such Warrant Shares are
acquired pursuant to a registration statement that has been declared effective
under the Act, shall bear a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in exchange or
substitution for any certificate for any Warrant Shares bearing such legend
(except a new certificate for any Warrant Shares issued after the acquisition of
such Warrant Shares pursuant to a registration statement that has been declared
effective under the Act) shall also bear such legend unless, in the opinion of
counsel for the Company, the Warrant Shares represented thereby need no longer
be subject to the restriction contained herein. The provision of this Section 9
shall be binding upon all subsequent Holders of certificates for Warrant Shares
bearing the above legend and all subsequent Holders of
7.
this Warrant, if any. In addition in connection with the issuance of
this Warrant, the Holder specifically represents to the Company by
acceptance of this Warrant as follows:
(a) The Holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company sufficient
to reach an informed and knowledgeable decision to acquire this Warrant. The
Holder is acquiring this Warrant for its own account for investment purposes
only and not with a view to, or for the resale in connection with, any
"distribution" thereof in violation of the Act.
(b) The Holder understands that this Warrant has not been registered
under the Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of the Holder's
investment intent as expressed herein.
(c) The Holder further understands that this Warrant must be held
indefinitely unless subsequently registered under the Act and qualified under
any applicable state securities laws, or unless exemptions from registration and
qualification are otherwise available. Moreover, the Holder understands that the
Company is under no obligation to register and qualify this Warrant.
(d) The Holder is aware of the provisions of Rule 144 promulgated
under the Act, which, in substance, permit limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer thereof (or from
an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions, if applicable, including, among other
things: The availability of certain public information about the Company, the
resale occurring not less than one year after the party has purchased and paid
for the securities to be sold (unless the securities have been acquired pursuant
to the net issuance provisions of Section 2 in which case the securities may
generally be sold one year from the date of this Warrant); the sale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934, as amended) and the amount of securities being sold during
any three month period not exceeding the specified limitations stated therein.
(e) The Holder further understands that at the time it wishes to sell
this Warrant there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, the Holder may be precluded from selling this Warrant under Rule 144
even if the one year minimum holding period had been satisfied.
(f) The Holder further understands that in the event all of the
requirements of Rule 144 are not satisfied, registration under the Act,
compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
staff of the Securities and Exchange Commission (the "SEC") has expressed its
opinion that persons proposing to sell private placement securities other than
in a registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
8.
Section 10. Expiration Date. This Warrant shall expire and shall be wholly
void and have no effect after 5:00 p.m. on January 25, 2003 (the "Expiration
Date").
Section 11. Market Standoff. The holder of this Warrant, by acceptance
hereof, agrees that such holder will not, without the prior written consent of
the lead underwriter of the initial public offering of the Common Stock of the
Company pursuant to a registration statement filed under the Act (the "IPO"),
directly or indirectly offer to sell, contract to sell (including, without
limitation, any short sale), grant any option for the sale of, acquire any
option to dispose of, or otherwise dispose of any Warrant Shares, or securities
into which such Warrant Shares are converted, for a period of 180 days following
the day on which the registration statement filed on behalf of the Company in
connection with the IPO shall become effective by order of the SEC; provided,
however, that the foregoing market standoff shall apply only to the extent that
holders of the Company's Series C Preferred Stock are subject to the same
restrictions.
Section 12. Governing Law. This Warrant shall be construed and enforced in
accordance with, and the right of the parties shall be governed by, the laws of
State of California, excluding its rules governing conflicts of laws.
Section 13. Modification and Waiver. Neither this Warrant nor any term
hereof may be amended, waived, discharged or terminated other than by an
instrument in writing signed by the Company and by the Holder hereof.
Section 14. Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, to each such
Holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant.
Section 15. Descriptive Headings. The description headings of the several
sections and paragraphs of this Warrant are inserted for convenience only and do
not constitute a part of this Warrant.
Section 16. Entire Agreement. This Warrant and the Investor Rights
Agreement constitute the entire agreement between the parties pertaining to the
subject matter herein and supersedes all prior and contemporaneous agreements,
representation and undertakings of the parties.
9.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
by a duly authorized officer this 25th day of January, 2000.
NOOSH, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
ACCEPTED AND AGREED TO:
R.R. Donnelley and Sons Company
By:____________________________________
Name:__________________________________
Title:_________________________________
10.
NOOSH, Inc.
PURCHASE FORM
Dated ______________ ____, ____
[_] The undersigned hereby irrevocably elects to exercise the Warrant issued
to it to purchase ___________ shares of Common Stock of NOOSH, Inc. and
hereby makes payment of ___________________ in payment of the exercise
price thereof.
[_] The undersigned hereby elects to convert ________ shares of the Warrant
pursuant to the provisions of Section 2 of the Warrant.
Name of Warrant Holder:
_____________________________________
Address of Warrant Holder:
__________________________________________
__________________________________________
Tax identification Number or Social Security
Number of Warrant Holder:
__________________________________________
Signature:________________________________
NOTE: The above signature should correspond
exactly with the name on the first page of
the Warrant or with the name of the assignee
appearing on a duly executed assignment form.
Dated:____________________________________