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EXHIBIT 4.5
THE SECURITIES EVIDENCED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND, EXCEPT AS PROVIDED IN PARAGRAPH 9(C) OF
THE WARRANT AGREEMENT, MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE ACT.
WARRANT TO PURCHASE COMMON STOCK
of
VIRAGE, INC.
1. Price and Number of Shares Subject to Warrant. FOR VALUE
RECEIVED and subject to the terms and conditions herein set forth, MLB Advanced
Media, L.P. (the "Purchaser") is entitled to purchase from Virage, Inc., a
Delaware corporation (the "Company"), at any time after 5:00 p.m. California
time on December 31, 2000 and before the termination of this Warrant pursuant to
Section 17 below, at a price per share equal to five dollars and fifty cents
($5.50), as adjusted in accordance with Section 3 below (the "Warrant Price"),
that number of fully paid and nonassessable shares of the Common Stock of the
Company indicated in Section 2 below, as adjusted pursuant to Section 3 (the
"Warrant Shares").
2. Number of Shares of Warrant Shares. The number of Warrant Shares
for which this Warrant is exercisable is equal to Two Hundred Thousand
(200,000).
3. Adjustment of Warrant Price and Warrant Shares. The number of
Warrant Shares issuable upon the exercise of this Warrant and the exercise price
thereof shall be subject to adjustment from time to time as follows:
(a) Adjustment for Reclassification, Reorganization or Merger. If
any capital reorganization or reclassification of the capital stock of the
Company, or consolidation or merger of the Company with another corporation, or
the sale of all or substantially all of its assets to another corporation shall
be effected in such a way that holders of Common Stock (or any shares of stock
or other securities at the time issuable upon the exercise of this Warrant)
shall be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock (or any shares of stock or other securities at the
time issuable upon the exercise of this Warrant), then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the holder hereof shall thereafter have
the right to purchase and receive, upon the basis and upon the terms and
conditions specified in this Warrant and in lieu of the Warrant Shares
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provisions shall be made with respect to the rights and
interests of the holder of this Warrant to the end that the provisions hereof
(including without limitation provisions for adjustments of the Warrant Price
and of the number of shares purchasable upon the exercise of this Warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger or sale unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing such
assets,
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shall assume by written instrument executed and mailed to the registered holder
hereof 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 or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to purchase.
(b) Stock Splits and Reverse Stock Splits. If, at any time on or
after the date hereof, the Company shall subdivide its outstanding shares of
Common 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 Warrant Shares receivable upon exercise of the Warrant shall
thereby be proportionately increased; and, conversely, if at any time on or
after the date hereof the outstanding number of shares of Common 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 Warrant Shares receivable upon exercise of this Warrant shall
thereby be proportionately decreased.
(c) Adjustment for Dividends in Stock. In case at any time or
from time to time on or after the date hereof the holders of the shares of the
Company's capital stock of the same class and series as the Warrant Shares (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 stockholders, shall have become entitled to
receive, without payment therefor, other or additional stock of the Company by
way of dividend, 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 Shares receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of such Warrant Shares 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 stock receivable
by it as aforesaid during such period, giving effect to all adjustments called
for during such period by this Section 3.
(d) No Fractional Shares. No fractional shares of Common Stock
will be issued in connection with any exercise hereunder. In lieu of any
fractional shares which would otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the Fair Market Value (as
defined in Section 6 below) of one share of Common Stock on the date of
exercise.
4. No Stockholder Rights or Liabilities. This Warrant, by itself,
as distinguished from any shares purchased hereunder, shall not entitle its
holder to any of the rights of a stockholder of the Company. No provision of
this Warrant, in the absence of the actual exercise of such Warrant and receipt
by the holder thereof of Warrant Shares issuable upon such exercise, shall give
rise to any liability on the part of such holder as a stockholder of the
Company, whether such liability shall be asserted by the Company or by creditors
of the Company.
5. Exercise of Warrant. This Warrant may be exercised in whole or
part by the holder, at any time after the date hereof and prior to the
termination of this Warrant, by the surrender of this Warrant, together with the
Notice of Exercise and Investment Representation Statement in the forms attached
hereto as Attachments 1 and 2, respectively, duly completed and executed at the
principal office of the Company, accompanied by payment in full of the Warrant
Price in cash or by check with respect to the shares of Warrant Shares being
purchased. 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 entitled to receive the shares of Warrant Shares issuable
upon such exercise shall be treated for all purposes as holder of such shares of
record as of the close of business on such date. As promptly as practicable
after such date, the Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
full shares of Warrant Shares issuable upon such exercise and, unless this
Warrant has been fully exercised or has expired, a new Warrant representing the
portion of the Warrant Shares, if any, with respect to which this Warrant shall
not have been exercised, shall also be issued to the holder hereof.
6. Conversion. In lieu of exercising this Warrant or any portion
hereof, the holder hereof shall have the right to convert this Warrant or any
portion hereof into Warrant Shares by executing and delivering to the Company at
its principal office the written Notice of Conversion and Investment
Representation Statement in the forms attached hereto as Attachments 2 and 3,
respectively, specifying the portion of the Warrant to be converted,
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and accompanied by this Warrant. The number of Warrant Shares to be issued upon
such conversion shall be computed using the following formula:
X = (P)(Y)(A-B)/A
where X = the number of Warrant Shares to be issued to the
holder for the portion of the Warrant being converted.
P = the portion of the Warrant being converted expressed
as a decimal fraction.
Y = the total number of Warrant Shares issuable upon
exercise of the Warrant in full.
A = the Fair Market Value of one share of Warrant Shares.
The term "Fair Market Value" shall mean the average of
the daily closing prices of the Common Stock for the ten
(10) consecutive Trading Days ending on the Trading Day
preceding the date of such exercise. As used herein the
term "Trading Days" with respect to Common Stock means
(i) if the Common Stock is quoted on the NASDAQ Stock
Markets, Inc. and any similar system of automated
dissemination of quotations of securities prices, days
on which trades may be made on such system or (ii) if
the Common Stock is listed or admitted for trading on
any national securities exchange, days on which such
national securities exchange is open for business.
B = the Warrant Price on the date of conversion.
Any portion of this Warrant that is converted shall be immediately canceled and,
unless this Warrant has been fully converted or has expired, a new Warrant
representing the portion of the Warrant Shares, if any, with respect to which
this Warrant shall not have been converted, shall be issued to the holder
hereof.
7. 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 setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
8. Required Notices. 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, sell or otherwise acquire or dispose of 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;
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
(d) the sale of a substantial portion of the business and assets
of the Company; or
(e) any tender offer for any shares of capital stock of the
Company;
then, in any one or more of such cases, the Company shall use its commercially
reasonable efforts to give to the holder of this Warrant (i) at least fifteen
(15) days prior to any event referred to in subsection (a) above, at least
thirty (30) days prior to any event referred to in subsection (b), (c) or (d)
above, and within five days after it has knowledge of any pending tender offer,
written notice of the date on which the books of the Company shall close or a
record shall be taken for such dividend, distribution or subscription rights or
for determining rights to vote in
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respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up or the date by which stockholders
must tender shares in any tender offer and (ii) in the case of any such
reorganization, reclassification, consolidation, merger, sale dissolution,
liquidation, winding-up or tender offer known to the Company, at least thirty
(30) days prior written notice of the date (or, if not then known, a reasonable
approximation thereof by the Company) when the same shall take place; provided,
however, that the Company shall not be required to give the notices described
above if, in the reasonable judgment of the Company and the Company's legal
counsel, such notice would be a violation of federal securities laws; provided
further that, in such event, the Company shall give notice to the holder as soon
as practicable following such time as it reasonably determines that such notice
would not result in such a violation. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto, and such notice in accordance with the
foregoing clause (ii) shall also specify the date on which the holders of Common
Stock shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, winding-up or tender offer, as the case
may be. Such notice shall also state that the action in question or the record
date is subject to the effectiveness of a registration statement under the
Securities Act of 1933, as amended, (the "Act") or to a favorable vote of
security holders, if either is required.
9. Exchange, Transfer or Assignment of Warrant.
(a) Each holder of this Warrant acknowledges that this Warrant
has not been registered under the Act, and agrees not to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of ("Transfer") this
Warrant, in whole or in part, except in accordance with this paragraph 9 and in
compliance with the applicable United States federal and state securities laws.
(b) This Warrant may be freely exchanged, in whole or in part, at
the holder's option, upon presentation and surrender hereof at the principal
office of the Company, for other warrants of different denominations, entitling
the holder or holders thereof to purchase in the aggregate the same number of
Warrant Shares. Subject to the preceding sentence, this Warrant may be divided
or combined with other warrants that carry the same rights upon presentation
hereof to the Company, together with a written notice specifying the names and
denominations in which new warrants are to be issued and signed by the holder
thereof.
(c) Except as provided in paragraph 9(a) and paragraph 9(e), this
Warrant may be freely Transferred, in whole or in part, at the holder's option,
upon surrender of this Warrant with a duly executed transfer form at the
principal office of the Company. The Company shall execute and deliver a new
warrant or warrants in the name of the assignee or assignees named in such
instrument of transfer and, if the holder's entire interest is not being
Transferred, in the name of the holder, and this Warrant shall promptly be
cancelled. Prior to effecting any such Transfer of this Warrant, the holder
hereof shall provide the Company with a written opinion of counsel reasonably
satisfactory to the Company stating that such Transfer is exempt from the
registration and prospectus delivery requirements of the Act; provided, however,
that that the Purchaser may freely Transfer this Warrant to any affiliated
entity, including, without limitation, MLB Online Services, Inc., MLB Advanced
Media, Inc., the Office of the Commissioner of Baseball, Major League Baseball
Properties, Inc., Major League Baseball Enterprises, Inc. and Baseball
Television, Inc., without delivering such an opinion of counsel to the Company.
(d) Any Transfer or exchange of this Warrant shall be without
charge to the holder except that the holder shall pay the actual costs,
including the holder's legal fees, associated with the Transfer or exchange.
(e) The holder agrees to cause the Company to receive written
notice 15 days before Transferring this Warrant of such holder's intention to do
so, describing briefly the manner of any proposed Transfer. In no event shall
the holder hereof Transfer this Warrant to an entity that the Company reasonably
determines in good faith to be a competitor of the Company, provided the Company
gives notice of such determination to the holder hereof within 15 days of the
Company's receipt of the notice described herein.
(f) The Company will maintain a register containing the names and
addresses of the registered holder(s) of this Warrant. Any registered holder
hereof may change such registered holder's address as shown on the warrant
register by written notice to the Company requesting such change.
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10. Compliance. The Company agrees to use its best efforts to
continue to be subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended, (the "Exchange Act") and to file timely all reports
required to be filed by it pursuant to Sections 13 or 15 thereof.
11. Prohibition of Certain Actions. The Company will not, by
amendment of its Certificate of Incorporation 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 to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Warrant. Without limiting the generality of the
foregoing, the Company (a) will not increase the par value of any shares of
Common Stock receivable upon exercise of this Warrant above the Warrant Price
then in effect, and (b) will 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 Common Stock upon the exercise of the Warrant from
time to time.
12. Reservation and Listing of Stock; Representations and
Warranties. The Company covenants and agrees that during the period within which
the rights represented by this Warrant may be exercised, the Company will have
at all times authorized, and reserved for the purpose of issue or transfer upon
exercise of the rights evidenced by this Warrant, a sufficient number of shares
of Common Stock to provide for the exercise of the rights represented by this
Warrant. The Company will take all such action as may be necessary to assure
that such shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirements of the Nasdaq National
Market and/or any national securities exchange upon which the Common Stock may
be listed or inter-dealer trading system on which the Common Stock is then
traded. The Company will not take any action which would result in any
adjustment in the number of shares of Common Stock purchasable hereunder if the
total number of shares of Common Stock issuable pursuant to the terms of this
Warrant after such action upon full exercise of this Warrant and, together with
all shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon exercise of all options and other rights to purchase shares of
Common Stock then outstanding, would exceed the total number of shares of Common
Stock then authorized by the Company's Certificate of Incorporation, as then
amended. The Company represents and warrants that it (a) has all necessary
corporate power and authority to enter into and to perform its obligations under
this Warrant; (b) has taken all necessary or desirable actions, steps, corporate
or otherwise, and other proceedings to approve or authorize, validly and
effectively, the entering into, and the execution, delivery and performance of
this Warrant; and (c) has duly and validly executed and delivered this Warrant,
which constitutes the valid and binding obligation of the Company, enforceable
against it in accordance with its terms.
13. Market Stand-Off Agreement. The holder of this Warrant, if
requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, shall agree not to sell or otherwise transfer or
dispose of any securities held by the holder during the one hundred eighty (180)
day period following the effective date of a registration statement of the
Company filed under the Act.
14. Piggyback Registration.
(a) Right to Join in Registration. If the Company proposes to
file a registration statement under the Act seeking registration of any
securities of the Company for sale for cash to the public either for its own
account or for the account of any holder of securities of the Company, the
Company shall notify the holder hereof, in writing, of its intention to file
such registration statement and will afford the holder hereof the opportunity to
request inclusion in such registration statement of all or any part of the
Warrant Shares, and subject to the rights of the Investors in the Second Amended
and Restated Registration Rights Agreement dated September 21, 1999, as amended
(the "Rights Agreement"), will allow the holder's participation in such
registration statement. If the holder hereof desires to join in such
registration statement, it shall, within thirty (30) days after the date of
mailing of such notice by the Company, notify the Company, in writing, of the
number of Warrant Shares it desires to include in any such registration
statement. If the holder hereof requests inclusion of any of the Warrant Shares
in such registration statement and if such public offering is to be
underwritten, the Company will cause the underwriters of the offering to
purchase and sell such Warrant Shares. The right of the holder hereof to
registration pursuant to this Section 14 shall be conditioned upon the holder's
participation in such underwriting and the inclusion of the holder's Warrant
Shares in the underwriting unless otherwise agreed to by the Company.
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(b) Marketing Limitation. If the managing underwriter determines
that marketing factors require a limitation of the number of shares to be
underwritten, the Company shall so advise the holder hereof and other persons
distributing their securities through such underwriting, and (i) Common Stock
held (or issuable upon conversion or exercise of securities held) by any person
who does not have contractual rights of registration shall first be excluded,
(ii) if such exclusion is not sufficient, Common Stock held (or issuable upon
conversion or exercise of securities held) by the holder hereof and any person,
other than the Investors (as defined in the Rights Agreement) who are not
excluded under clause (i) above shall be excluded, and (iii) if such exclusion
is not sufficient, shares of Underlying Common Stock (as defined in the Rights
Agreement) held by the Investors shall be excluded to the extent required to
permit the number of shares of Underlying Common Stock that may be included in
the registration and underwriting to be allocated among all such Investors and
other persons in proportion, as nearly as practicable, to the number of shares
of Underlying Common Stock held by all such Investors at the time of filing the
registration statement, provided that (i) no such inclusion of Warrant Shares,
Registrable Stock (as defined in the Rights Agreement) or Common Stock by the
underwriter may reduce the securities being offered by the Company for its own
account by more than twenty percent (20%) in any underwriting. No Warrant
Shares, Common Stock, Registrable Stock or other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
(c) Withdrawal. The Company may decline to file a registration
statement after notice to the holder hereof, or withdraw a registration
statement after filing and after such notice, but prior to the effectiveness
thereof, provided that it shall promptly notify the holder hereof, in writing,
of any such action. The holder hereof may, at any time prior to the
effectiveness of a Registration Statement filed pursuant to this Section 14,
withdraw its Warrant Shares therefrom.
(d) Expenses of Registration. In connection with any registration
statement prepared and filed in accordance with this Section 14, the Company
will bear the entire expense of the (i) preparation and filing of such
registration statement, (ii) furnishing of such number of copies of the
prospectus included therein as may be reasonably required in connection with the
offering, (iii) qualification of such offering under such state securities laws
as the holder hereof and Holders (as defined in the Rights Agreement) requesting
registration shall request, (iv) the fees and expenses of counsel for the
Company and the fees and expenses of one counsel for the holder hereof and the
Holders, together as a group. The holder hereof and the Holders shall pay all
selling expenses attributable to their Warrant Shares and Registrable Stock that
is included in the registration statement, including underwriting commissions
and discounts.
15. Indemnification.
(a) Indemnification by Company. The Company will, and hereby
agrees to, indemnify and hold harmless, to the full extent permitted by law,
each holder of Warrant Shares, the Major League Baseball Clubs, MLB Online
Services, Inc., MLB Advanced Media, Inc., the Office of the Commissioner of
Baseball, Major League Baseball Properties, Inc., Major League Baseball
Enterprises, Inc., Baseball Television, Inc., their respective affiliates and
their respective partners, owners, officers, directors, shareholders, employees,
advisors, agents, each other person who participates as an underwriter, selling
broker, dealer manager, or similar securities industry professional in the
offering or sale of Warrant Shares, and each person who controls (within the
meaning of the Act or the Exchange Act) any of the foregoing persons (each, an
"Indemnified Party" and collectively, the "Indemnified Parties"), from and
against any and all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) and expenses, joint or several (including reasonable costs of
investigation and legal expenses) (each, a "Loss" and collectively "Losses"),
arising out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained in any registration statement under which such Warrant
Shares were registered under the Act (including any final, preliminary or
summary prospectus contained therein or any amendment thereof or supplement
thereto or any documents incorporated by reference therein), or any related
state securities or "blue sky" applications or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading; provided, however, that the Company shall not be liable to
a particular Indemnified Party in any such case to the extent that any such Loss
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such registration statement in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Party through an instrument duly executed by such
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Indemnified Party, specifically stating that it is for use in the preparation of
such registration statement. This indemnity shall be in addition to any
liability the Company may otherwise have. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or any Indemnified Party and shall survive the transfer of such
securities by such holder.
(b) Indemnification by the Selling Holder of Warrant Shares. In
the event of registration of any Warrant Shares under the Act pursuant to
Section 14, each selling holder of Warrant Shares agrees (severally and not
jointly) to indemnify and hold harmless, to the full extent permitted by law,
the Company, its directors and officers and each person who controls the Company
(within the meaning of the Act and the Exchange Act) from and against any Losses
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement under which
such Warrant Shares were registered under the Act (including any final,
preliminary or summary prospectus contained therein or any amendment thereof or
supplement thereto or any documents incorporated by reference therein), or
necessary to make the statements therein (in the case of a prospectus or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any written information furnished to the
Company through an instrument duly executed by such holder, specifically stating
that it is for inclusion in such registration statement and has not been
corrected in a subsequent writing prior to or concurrently with the sale of the
Warrant Shares. In no event shall the liability of any selling holder of Warrant
Shares hereunder be greater in amount than the dollar amount of the proceeds
received by such holder under the sale of the Warrant Shares giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any person entitled to indemnification hereunder shall
have the right to select and employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (A) the indemnifying party has agreed in writing
to pay such fees or expenses, (B) the indemnifying party shall have failed to
assume the defense of such claim within a reasonable time after receipt of
notice of such claim from the person entitled to indemnification hereunder and
employ counsel reasonably satisfactory to such person, (C) the indemnified party
has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, or (D) in the
reasonable judgment of any such person, based upon advice of its counsel, a
conflict of interest may exist between such person and the indemnifying party
with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent, but
such consent may not be unreasonably withheld; provided, that an indemnifying
party shall not be required to consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material
obligations on such indemnifying party other than financial obligations for
which such indemnified party will be indemnified hereunder. If the indemnifying
party assumes the defense, the indemnifying party shall have the right to settle
such action without the consent of the indemnified party; provided, however,
that the indemnifying party shall be required to obtain such consent (which
consent shall not be unreasonably withheld) if the settlement includes any
admission of wrongdoing on the part of the indemnified party or any decree or
restriction on the indemnified party or its officers or directors. No
indemnifying party shall consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of an unconditional release
from all liability in respect to such claim or litigation or which would impose
any material obligations on such indemnified party (given against an appropriate
cross-release). Except as provided above it is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time from all such indemnified party or
parties unless the employment of more than one counsel has been authorized in
writing by the indemnified party or parties.
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16. Contribution. If for any reason the indemnification provided for
in Section 15 is unavailable to an indemnified party or insufficient to hold it
harmless, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such Loss in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 16 to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 16 to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Warrant Shares in
the offering to which the Losses of the indemnified parties relate exceeds the
amount of any damages which such indemnifying party has otherwise been required
to pay by reason of such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section
16 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in this
Section 16. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
17. Termination. This Warrant shall terminate at 5:00 p.m.,
California time, on December 31, 2003.
18. Miscellaneous. This Warrant shall be construed and enforced in
accordance with and governed by the laws of the State of New York applicable to
contracts entered into and performed entirely within that State. Any dispute
arising directly or indirectly from this Warrant shall be determined in
accordance with Section 14 of the Interactive Media Services Agreement, dated
for reference purposes as of December 31, 2000, by and between the Company and
the Purchaser. The headings in this Warrant are for purposes of convenience and
reference only, and shall not be deemed to constitute a part hereof. Neither
this Warrant nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the Company
and the registered holder hereof. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid, to the address furnished to the Company in
writing by the holder of this Warrant who shall have furnished an address to the
Company in writing. If any provision of this Warrant shall be held unenforceable
by a court of competent jurisdiction, that provision shall be limited or
eliminated to the minimum extent necessary so this Warrant shall otherwise
remain in full force and effect and enforceable.
ISSUED: December 31, 2000
VIRAGE, INC.
By:
--------------------------------------
Name: Frank H. Pao
Title: Vice President, Business Affairs
8
9
Attachment 1
NOTICE OF EXERCISE
TO: VIRAGE, INC.
1. The undersigned hereby elects to purchase _____________________ shares of
Common Stock of Virage, Inc., pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price in full, together with all
applicable transfer taxes, if any.
2. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
-------------------------------
(Name)
-------------------------------
(Address)
- ------------------------------- -------------------------------
(Date) (Name of Warrant Holder)
------------------------------------
By:
------------------------------------
Title:
10
Attachment 2
INVESTMENT REPRESENTATION STATEMENT
Common Stock
of
VIRAGE, INC.
In connection with the purchase of Common Stock, the undersigned hereby
represents to Virage, Inc. (the "Company") as follows:
(a) The securities to be received upon the exercise of the Warrant
(the "Securities") will be acquired for investment for its own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and the undersigned has no present intention of selling, granting
participation in or otherwise distributing the same, but subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. By executing this Statement, the undersigned
further represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer, or grant participations to such
person or to any third person, with respect to any Securities issuable upon
exercise of the Warrant.
(b) The undersigned understands that the Securities issuable upon
exercise of the Warrant at the time of issuance may not be registered under the
Securities Act of 1933, as amended (the "Act"), and applicable state securities
laws, on the ground that the issuance of such securities is exempt pursuant to
Section 4(2) of the Act and state law exemptions relating to offers and sales
not by means of a public offering, and that the Company's reliance on such
exemptions is predicated on the undersigned's representations set forth herein.
(c) Except for a transfer by the undersigned, in the event the
undersigned is a partnership, to a limited or general partner of such
partnership, the undersigned agrees that in no event will it make a disposition
of any Securities acquired upon the exercise of the Warrant unless and until (i)
it shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and (ii) it shall have furnished the Company with an
opinion of counsel satisfactory to the Company and Company's counsel to the
effect that (A) appropriate action necessary for compliance with the Act and any
applicable state securities laws has been taken or an exemption from the
registration requirements of the Act and such laws is available, and (B) the
proposed transfer will not violate any of said laws.
(d) The undersigned acknowledges that an investment in the Company
is highly speculative and represents that it is able to fend for itself in the
transactions contemplated by this Statement, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investments, and has the ability to bear the economic risks
(including the risk of a total loss) of its investment. The undersigned
represents that it has had the opportunity to ask questions of the Company
concerning the Company's business and assets and to obtain any additional
information which it considered necessary to verify the accuracy of or to
amplify the Company's disclosures, and has had all questions which have been
asked by it satisfactorily answered by the Company.
11
(e) The undersigned acknowledges that the Securities issuable upon
exercise of the Warrant must be held indefinitely unless subsequently registered
under the Act or an exemption from such registration is available. The
undersigned is aware of the provisions of Rule 144 promulgated under the Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain current
public information about the Company, the resale occurring not less than one
year after a party has purchased and paid for the security to be sold, the sale
being through a "broker's transaction" or in transactions directly with a
"market makers" (as provided by Rule 144(f)) and the number of shares being sold
during any three-month period not exceeding specified limitations.
Dated:
-----------------
-----------------------------------
(Typed or Printed Name)
By:
--------------------------------
(Signature)
-----------------------------------
(Title)
12
Attachment 3
NOTICE OF CONVERSION
TO: VIRAGE, INC.
1. The undersigned hereby elects to acquire _______________________ shares
of Common Stock of Virage, Inc., pursuant to the terms of the attached Warrant,
by conversion of ___________________ percent (_____%) of the Warrant.
2. Please issue a certificate or certificates representing said shares
Common Stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------
(Name)
-------------------------------
(Address)
- ------------------------------- -------------------------------
(Date) (Name of Warrant Holder)
By:
----------------------------------
Title:
-------------------------------