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EXHIBIT 4.2
THIS COMMON STOCK PURCHASE WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED IN VIOLATION OF SUCH ACT, THE RULES AND REGULATIONS THEREUNDER OR
THE PROVISIONS OF THIS COMMON STOCK PURCHASE WARRANT.
Number of Shares of Common Stock: 225,000
COMMON STOCK PURCHASE WARRANT
To Purchase Common Stock of
Symposium Corporation
THIS IS TO CERTIFY THAT The Shaar Fund Ltd., or its registered assigns,
is entitled, at any time from the Funding Date (as hereinafter defined) to the
Expiration Date (as hereinafter defined), to purchase from SYMPOSIUM
CORPORATION, a Delaware corporation (the "Company"), 225,000 shares of Common
Stock (as hereinafter defined and subject to adjustment as provided herein), in
whole or in part, including fractional parts, at a purchase price equal to
$1.485 per share, all on the terms and conditions and pursuant to the provisions
hereinafter set forth.
1. DEFINITIONS
As used in this Common Stock Purchase Warrant (this "Warrant"), the
following terms have the respective meanings set forth below:
"ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of Common
Stock issued by the Company after the Funding Date, other than Warrant Shares.
"BUSINESS DAY" shall mean any day that is not a Saturday or Sunday or a
day on which banks are required or permitted to be closed in the State of New
York.
"CERTIFICATE OF DESIGNATION" shall mean that certificate indicating the
designations, rights and preferences of the Company's Series A Convertible
Preferred Stock, as filed with the Office of the Secretary of State of the State
of Delaware, as of June 9, 2000.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"COMMON STOCK" shall mean (except where the context otherwise
indicates) the Common Stock, par value $0.001, of the Company as constituted on
the Funding Date, and any
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capital stock into which such Common Stock may thereafter be changed, and shall
also include (i) capital stock of the Company of any other class (regardless of
how denominated) issued to the holders of shares of Common Stock upon any
reclassification thereof which is also not preferred as to dividends or assets
over any other class of stock of the Company and which is not subject to
redemption and (ii) shares of common stock of any successor or acquiring
corporation received by or distributed to the holders of Common Stock of the
Company in the circumstances contemplated by Section 4.4.
"CONVERTIBLE SECURITIES" shall mean evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable, with or
without payment of additional consideration in cash or property, for shares of
Common Stock, either immediately or upon the occurrence of a specified date or a
specified event.
"CURRENT WARRANT PRICE" shall mean, in respect of a share of Common
Stock at any date herein specified, the price at which a share of Common Stock
may be purchased pursuant to this Warrant on such date, which price as of the
Funding Date, is $1.485 subject to adjustment in accordance the terms of this
Warrant.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"EXERCISE PERIOD" shall mean the period during which this Warrant is
exercisable pursuant to Section 2.1.
"EXPIRATION DATE" shall mean the date that is five years after the
Funding Date.
"FUNDAMENTAL CORPORATE CHANGES" shall have the meaning set forth in
Section 4.4.
"FUNDING DATE" means the date and time of the issuance and sale of the
Initially Issued Preferred Shares and the Initially Issued Warrants (each as
defined in the Securities Purchase Agreement).
"HOLDER" shall mean the Person in whose name the Warrant or Warrant
Shares set forth herein is registered on the books of the Company maintained for
such purpose.
"MARKET PRICE" shall have the meaning set forth in the Certificate of
Designation.
"OTHER PROPERTY" shall have the meaning set forth in Section 4.4.
"OUTSTANDING" shall mean, when used with reference to Common Stock, at
any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owned or held by or for the
account of the Company or any subsidiary thereof, and shall include all shares
issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Common Stock.
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"PERMITTED DILUTIVE ISSUANCE" shall mean any one or more of the
following: (i) the issuance of Common Shares by the Company within forty-five
(45) days after the Funding Date in connection with a currently contemplated
$1.1 million private placement; (ii) the issuance of Common Shares upon exercise
of options or warrants that are outstanding or committed to be issued on the
Funding Date and listed on Schedule III A 1.1 or III A 1.2 to the Securities
Purchase Agreement (and pursuant to the terms in effect on the date hereof);
(iii) the issuance of options pursuant to employee stock option agreements or
stock incentive plans of the Company as in effect from time to time; (iv) the
issuance of up to 1,000,000 Common Shares to RLP Holdings L.P. ("RLP") in
satisfaction of the Company's obligation to purchase for $500,000 a $500,000
principal amount promissory note issued by AmeriNet, Inc. to RLP; (v) the
adjustment of the exercise price or rate of options or warrants referred to in
clauses (ii) and (iii) above, or adjustments to the conversion price of shares
of Series B Preferred Stock and Series C Preferred Stock (and/or the adjustment
of the number of Common Shares issuable upon exercise thereof), pursuant to
contractual anti-dilution provisions in effect as of the Funding Date providing
for (A) adjustments upon the occurrence of events such as stock splits, stock
dividends, reverse stock splits, recapitalizations, combinations and mergers, or
(B) in the case of options or warrants referred to in clauses (ii) or (iii)
above (but not in the case of shares of Series B Preferred Stock or Series C
Preferred Stock), weighted-average anti-dilution adjustments upon the issuance
of Common Shares or Common Shares Equivalents for consideration less than the
applicable exercise price of such options or warrants, provided that this clause
(B) shall not include any "ratchet" type anti-dilution adjustment (collectively,
the "Permitted Adjustments"); (vi) the issuance of Common Shares (A) upon
exercise of all options and warrants and referred to in clauses (ii) and (iii)
above, in each case in accordance with the terms of such options and warrants in
effect as of the Funding Date (with respect to options and warrants referred to
in clause (ii) above) or in effect as of the date of issuance (with respect to
options referred to pursuant to clause (iii) above), or (B) upon conversion of
shares of Series B Preferred Stock and Series C Preferred Stock, subject, in
each case, to Permitted Adjustments; (vii) the issuance of 10,000 Common Shares
referred to in the first paragraph of Schedule III K to the Securities Purchase
Agreement; and (viii) the issuance of warrants to the Holder pursuant to the
option granted to the Holder under the Securities Purchase Agreement and the
issuance of Common Shares upon exercise of this Warrant and such warrants.
"PERSON" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, incorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement dated June 9, 2000 by and between the Company and The Shaar Fund Ltd.,
as it may be amended from time to time.
"RESTRICTED COMMON STOCK" shall mean shares of Common Stock which are,
or which upon their issuance on the exercise of this Warrant would be, evidenced
by a certificate bearing the restrictive legend set forth in Section 9.1(b).
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"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SECURITIES PURCHASE AGREEMENT" shall mean the Securities Purchase
Agreement dated as of June 9, 2000 by and between the Company and The Shaar
Fund, Ltd. as it may be amended from time to time.
"TRANSFER" shall mean any disposition of any Warrant or Warrant Shares
or of any interest in either thereof, which would constitute a sale thereof
within the meaning of the Securities Act.
"TRANSFER NOTICE" shall have the meaning set forth in Section 9.2.
"WARRANTS" shall mean this Warrant and all warrants issued upon
transfer, division or combination of, or in substitution for, any thereof. All
Warrants shall at all times be identical as to terms and conditions and date,
except as to the number of shares of Common Stock for which they may be
exercised.
"WARRANT PRICE" shall mean an amount equal to (i) the number of shares
of Common Stock being purchased upon exercise of this Warrant pursuant to
Section 2.1, multiplied by (ii) the Current Warrant Price as of the date of such
exercise.
"WARRANT SHARES" shall mean the shares of Common Stock purchased by the
holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1 Manner of Exercise. From and after the Funding Date and until 5:00
P.M., New York City time, on the Expiration Date, Holder may exercise this
Warrant, on any Business Day, in increments of 10,000 shares of Common Stock
purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office at 410 Park Avenue, Suite 830 New
York, New York 10022, or at the office or agency designated by the Company
pursuant to Section 12, (i) a written notice of Holder's election to exercise
this Warrant, which notice shall specify the number of shares of Common Stock to
be purchased, (ii) payment of the Warrant Price in cash or by wire transfer or
cashier's check drawn on a United States bank and (iii) this Warrant. Such
notice shall be substantially in the form of the subscription form appearing at
the end of this Warrant as Exhibit A, duly executed by Holder or its agent or
attorney. Upon receipt of the items referred to in clauses (i), (ii) and (iii)
above, the Company shall, as promptly as practicable, and in any event within
ten (10) Business Days thereafter, execute or cause to be executed and deliver
or cause to be delivered to Holder a certificate or certificates representing
the aggregate number of full shares of Common Stock issuable upon such exercise,
together with cash in lieu of any fraction of a share, as hereinafter provided.
The stock certificate or certificates so delivered shall be, to the extent
possible, in such denomination or denominations as Holder shall request in the
notice
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and shall be registered in the name of Holder or, subject to Section 9, such
other name as shall be designated in the notice. This Warrant shall be deemed to
have been exercised and such certificate or certificates shall be deemed to have
been issued, and Holder or any other Person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the notice, together with the cash or check or checks
and this Warrant, is received by the Company as described above and all taxes
required to be paid by Holder, if any, pursuant to Section 2.2 prior to the
issuance of such shares have been paid. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of the certificate
or certificates representing Warrant Shares, deliver to Holder a new Warrant
evidencing the rights of Holder to purchase the unpurchased shares of Common
Stock called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant, or, at the request of Holder, appropriate
notation may be made on this Warrant and the same returned to Holder.
Notwithstanding any provision herein to the contrary, the Company shall not be
required to register shares in the name of any Person who acquired this Warrant
(or part hereof) or any Warrant Shares otherwise than in accordance with this
Warrant.
2.2 Payment of Taxes and Charges. All shares of Common Stock issuable
upon the exercise of this Warrant pursuant to the terms hereof shall be validly
issued, fully paid and nonassessable, and without any preemptive rights. The
Company shall pay all expenses in connection with, and all taxes and other
governmental charges (excluding income and related taxes) that may be imposed
with respect to, the issue or delivery thereof, unless such tax or charge is
imposed by law upon Holder, in which case such taxes or charges shall be paid by
Holder. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Common Stock issuable upon exercise of this Warrant in
any name other than that of Holder, and in such case the Company shall not be
required to issue or deliver any stock certificate until such tax or other
charge has been paid or it has been established to the satisfaction of the
Company that no such tax or other charge is due.
2.3 Fractional Shares. The Company shall not be required to issue a
fractional share of Common Stock upon exercise of any Warrant. As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the same fraction of the Market Price per share
of Common Stock as of the Initial Funding Date.
2.4 Continued Validity. A holder of shares of Common Stock issued upon
the exercise of this Warrant, in whole or in part (other than a holder who
acquires such shares after the same have been publicly sold pursuant to a
Registration Statement under the Securities Act or sold pursuant to Rule 144
thereunder), shall continue to be entitled with respect to such shares to all
rights to which it would have been entitled as Holder under Sections 9, 10 and
14 of this Warrant. The Company will, at the time of exercise of this Warrant,
in whole or in part, upon the request of Holder, acknowledge in writing, in form
reasonably satisfactory to Holder, its continuing obligation to afford Holder
all such rights; provided, however, that if Holder shall fail to make any such
request, such failure shall not affect the continuing obligation of the Company
to afford to Holder all such rights.
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3. TRANSFER, DIVISION AND COMBINATION
3.1 Transfer. Subject to compliance with the Securities Purchase
Agreement and this Section 3.1 and Section 9 herein, transfer of this Warrant
and all rights hereunder, in whole or in part, shall be registered on the books
of the Company to be maintained for such purpose, upon surrender of this Warrant
at the principal office of the Company referred to in Section 2.1 or the office
or agency designated by the Company pursuant to Section 12, together with a
written assignment of this Warrant substantially in the form of Exhibit B hereto
duly executed by Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall, subject to Section 9, execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees
and in the denomination specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned in compliance with Section 9, may be exercised by a new Holder
for the purchase of shares of Common Stock without having a new warrant issued.
3.2 Division and Combination. Subject to Section 3.1 and 9, this
Warrant may be divided or combined with other Warrants upon presentation hereof
at the aforesaid office or agency of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney. Subject to compliance with Section
3.1 and with Section 9, as to any transfer which may be involved in such
division or combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined in
accordance with such notice.
3.3 Expenses. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under this
Section 3.
3.4 Maintenance of Books. The Company agrees to maintain, at its
aforesaid office or agency, books for the registration and the registration of
transfer of the Warrants.
4. ADJUSTMENTS
The number of shares of Common Stock for which this Warrant is
exercisable, or the price at which such shares may be purchased upon exercise of
this Warrant, shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give Holder notice of any event described
below which requires an adjustment pursuant to this Section 4 at the time of
such event.
4.1 Stock Dividends, Subdivisions and Combinations. If at any time the
Company shall:
(a) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, Additional Shares of Common Stock,
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(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event would own or be entitled to
receive after the happening of such event, and (ii) the Current Warrant Price
shall be adjusted to equal (A) the Current Warrant Price multi-plied by the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the adjustment divided by (B) the number of shares for
which this Warrant is exercisable immediately after such adjustment.
4.2 Certain Other Distributions. If at any time the Company
shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive any dividend or other distribution of:
(a) cash,
(b) any evidences of its indebtedness, any shares of its stock
or any other securities or property of any nature whatsoever (other
than cash, Convertible Securities or Additional Shares of Common
Stock), or
(c) any warrants or other rights to subscribe for or purchase
any evidences of its indebtedness, any shares of its stock or any other
securities or property of any nature whatsoever (other than cash,
Convertible Securities or Additional Shares of Common Stock),
then Holder shall be entitled to receive such dividend or distribution as if
Holder had exercised this Warrant. A reclassification of the Common Stock (other
than a change in par value, or from par value to no par value or from no par
value to par value) into shares of Common Stock and shares of any other class of
stock shall be deemed a distribution by the Company to the holders of its Common
Stock of such shares of such other class of stock within the meaning of this
Section 4.2 and, if the outstanding shares of Common Stock shall be changed into
a larger or smaller number of shares of Common Stock as a part of such
reclassification, such change shall be deemed a subdivision or combination, as
the case may be, of the outstanding shares of Common Stock within the meaning of
Section 4.1.
4.3 Other Provisions Applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable and the
Current Warrant Price provided for in this Section 4:
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(a) When Adjustments to Be Made. The adjustments required by
this Section 4 shall be made whenever and as often as any specified
event requiring an adjustment shall occur. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the
close of business on the date of its occurrence.
(b) Fractional Interests. In computing adjustments under this
Section 4, fractional interests in Common Stock shall be taken into
account to the nearest 1/10th of a share.
(c) When Adjustment Not Required. If the Company shall take a
record of the holders of its Common Stock for the purpose of entitling
them to receive a dividend or distribution or subscription or purchase
rights and shall, thereafter and before the distribution to
stock-holders thereof, legally abandon its plan to pay or deliver such
dividend, distribution, subscription or purchase rights, then
thereafter no adjustment shall be required by reason of the taking of
such record and any such adjustment previously made in respect thereof
shall be rescinded and annulled.
(d) Challenge to Good Faith Determination. Whenever the Board
of Directors of the Company shall be required to make a determination
in good faith of the fair value of any item under this Section 4, such
determination may be challenged in good faith by the Holder, and any
dispute shall be resolved by an investment banking firm of recognized
national standing selected by the Company and reasonably acceptable to
the Holder.
4.4 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 Person
(where the Company is not the survivor or where there is a change in or
distribution with respect to the Common Stock of the Company), or sell, convey,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another Person, or effectuate a transaction or series of related
transactions in which more than 50% of the voting power of the Company is
disposed of (each, a "Fundamental Corporate Change") and, pursuant to the terms
of such Fundamental Corporate Change, 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 Common Stock of the Company, then Holder shall have the right
thereafter to receive, upon exercise of the Warrant, such number of shares of
common stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property as is receivable upon or as a
result of such Fundamental Corporate Change by a holder of the number of shares
of Common Stock for which this Warrant is exercisable immediately prior to such
Fundamental Corporate Change. In case of any such Fundamental Corporate Change,
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
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(as determined by resolution of the Board of Directors of the Company) in order
to provide for adjustments of shares of Common Stock for which this Warrant is
exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 4. For purposes of this Section 4.4,
"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 4.4 shall
similarly apply to successive Fundamental Corporate Change.
4.5 Other Action Affecting Common Stock. (a) Except with respect to a
Permitted Dilutive Issuance and/or issuances and sales governed by Section
4.5(b) below (including such issuances described in the parenthetical contained
in clause (i)(B) of the first sentence of Section 4.5(b) hereof), if the Company
issues and sells pursuant to an exemption from registration under the Securities
Act (A) Common Shares at a purchase price that is lower than the Current Warrant
Price on the date of issuance of such Common Shares, (B) warrants or options
with an exercise price on the date of issuance thereof that is lower than the
Current Warrant Price for the Holder on such date, or (C) convertible,
exchangeable or exercisable securities with a right to convert or exchange at
lower than the Current Market Price on the date of issuance or conversion, as
applicable, of such convertible, exchangeable or exercisable securities, then
the price at which Common Shares may be purchased upon exercise of this Warrant
shall be reduced to equal the lowest of the Current Warrant Price then in effect
or any such purchase price, exercise price or exchange price, and the number of
shares of Common Stock for which this Warrant is exercisable pursuant to Section
1 shall be correspondingly adjusted. Notwithstanding the foregoing, if an
adjustment is made upon issuance of warrants, options or convertible,
exercisable or exchangeable securities pursuant to clause (B) or (C) above, no
further adjustment pursuant to clause (A) shall be made upon issuance of Common
Shares upon exercise, conversion or exchange thereof.
(b) Notwithstanding anything to the contrary herein, if at any time,
other than pursuant to a Permitted Dilutive Issuance, the Company (i) (A) issues
to the holders of the Company's Series B Preferred Stock or Series C Preferred
Stock warrants or options to purchase Common Shares, or securities convertible
into or exchangeable for Common Shares, in any such case, at an exercise or
conversion price less than the Current Warrant Price then in effect, or (B)
issues and sells to such holders additional Common Shares (other than upon
exercise of previously issued options or warrants or conversion of previously
issued convertible securities (x) pursuant to the terms in effect on the date
hereof, or as such terms may be adjusted subsequent to the date hereof pursuant
to an Adjustment Event (as hereinafter defined), or (y) pursuant to an Issuance
Event of the type described in clause (i)(A) above pursuant to the terms in
effect at the time of such Issuance Event or as such terms may be adjusted
subsequent to the time of such Issuance Event pursuant to an Adjustment Event)
at a purchase price that is lower than the Current Warrant Price then in effect
(each, an "Issuance Event"), or (ii) adjusts the exercise price of warrants or
options, or the conversion price of convertible securities, previously issued to
the holders of the Company's Series B Preferred Stock or Series C Preferred
Stock to a price less than the Current
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Warrant Price then in effect (an "Adjustment Event"), then, from and after the
date of such Issuance Event or Adjustment Event, the Warrant shall be reduced to
equal the lowest of the Current Warrant Price then in effect or the exercise
price of the warrants or options, the conversion price of the convertible
securities or the purchase price of the Common Shares issued pursuant to such
Issuance Event or the exercise price of previously issued warrants or options or
previously issued convertible securities as adjusted pursuant to such Adjustment
Event, as the case may be, and the number of Common Shares for which this
Warrant is exercisable pursuant to Section 1 will be correspondingly adjusted;
provided, however, that no reduction of the Current Warrant Price shall be made
pursuant to this Section 4.5(b) as a result of the occurrence of any Issuance
Event or Adjustment Event unless the aggregate number of additional fully
diluted Common Shares resulting from such Issuance Event or Adjustment Event, as
the case may be, and any previous Issuance Events or Adjustment Events occurring
on or after the Funding Date (in each case calculated in accordance with the
next sentence) exceeds 5,000,000, subject to adjustment for any stock-split or
stock combination or reverse stock split occurring after the Funding Date (the
"Threshold Amount"). Shares counting toward the Threshold Amount shall consist
of: (i) in the case of an Issuance Event involving the issuance of options,
warrants or convertible securities, all Common Shares issuable upon exercise of
such options or warrants or upon conversion of such convertible securities; (ii)
in the case of an Issuance Event involving the issuance and sale of Common
Shares, all Common Shares issued and sold; and (iii) in the case of an
Adjustment Event, a number of Common Shares equal to the difference obtained by
subtracting (x) the number of Common Shares issuable upon exercise of the
options or warrants or upon conversion of the convertible securities subject to
such Adjustment Event, before giving effect to such Adjustment Event from (y)
the number of Common Shares issuable upon exercise of such options or warrants,
or conversion of such convertible securities, after giving effect to such
Adjustment Event. Upon reaching the Threshold Amount, the price at which Common
Shares may be purchased upon exercise of the Warrant shall be adjusted to equal
the lowest of: (A) the Current Warrant Price then in effect, (B) the price at
which any Common Shares were sold, or the exercise or conversion price of any
options, warrants or convertible securities issued, pursuant to any Issuance
Event or (C) the adjusted exercise or conversion price of any options, warrants
or convertible securities subject to any Adjustment Event, provided that for
purposes of making such determination, only the second 2,500,000 shares (the
"Determination Shares") counting toward the Threshold Amount shall be
considered, and provided, further, that, if the Determination Shares include any
Common Shares, options, warrants or convertible securities issued for nominal
consideration or for consideration consisting of an agreement to modify or
release certain claims or contractual rights or other similar agreement to which
no monetary valuation is assigned, then such Common Shares, options, warrants or
convertible securities (the "Excluded Shares") shall not be considered
Determination Shares for purposes of making such adjustment, but, the Company
shall, concurrently with such adjustment, issue and sell to the Holder, at a
price equal to the par value of such shares, a number of Common Shares equal to
the number of Common Shares for which this Warrant is exercisable immediately
prior to such adjustment multiplied by a fraction the numerator of which is the
number of Excluded Shares and the denominator of which is 2,500,000 (subject to
adjustment in each case for any stock-split or stock combination or reverse
stock split occurring after the Funding Date).
(c) Other than as specifically provided under this Section 4, if at any
time or from time to time the Company shall take any action in respect of its
Common Stock, which would have a
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materially adverse effect upon the rights of the Holder, the number of shares of
Common Stock for which this Warrant is exercisable and/or the purchase price
thereof shall be adjusted in such manner as may be equitable in the
circumstances, as determined in good faith by the Board of Directors of the
Company.
4.6 Certain Limitations. Notwithstanding anything herein to the
contrary, the Company agrees not to enter into any transaction which, by reason
of any adjustment hereunder, would cause the Current Warrant Price to be less
than the par value per share of Common Stock.
5. NOTICES TO HOLDER
5.1 Notice of Adjustments. Whenever the number of shares of Common
Stock for which this Warrant is exercisable, or whenever the price at which a
share of such Common Stock may be purchased upon exercise of the Warrants, shall
be adjusted pursuant to this Warrant, the Company shall forthwith prepare a
certificate to be executed by the chief financial officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment and the method
by which such adjustment was calculated (including a description of the basis on
which the Board of Directors of the Company determined the fair value of any
evidences of indebtedness, shares of stock, other securities or property or
warrants or other subscription or purchase rights), specifying the number of
shares of Common Stock for which this Warrant is exercisable and describing the
number and kind of any other shares of stock or Other Property for which this
warrant is exercisable, and any change in the purchase price or prices thereof,
after giving effect to such adjustment or change. The Company shall promptly
cause a signed copy of such certificate to be delivered to the Holder in
accordance with Section 14.2. The Company shall keep at its office or agency
designated pursuant to Section 12 copies of all such certificates and cause the
same to be available for inspection at said office during normal business hours
by the Holder or any prospective purchaser of a Warrant designated by the
Holder.
5.2 Notice of Corporate Action. If at any time
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least ten 10 business days' prior written notice of the date on which a record
date shall be selected for such dividend, distribution or right or for
determining rights to vote in respect of any such
<PAGE> 12
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, and (ii) in the case of any
such reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least ten (10) business
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 14.2.
6. NO IMPAIRMENT
(a) The Company shall not by any action, including, without
limitation, amending 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 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 (i) not increase the par value of any shares of 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, (ii) 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 this Warrant, and (iii) 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.
(b) Upon the request of Holder, the Company will at any time
during the period this Warrant is outstanding acknowledge in writing,
in form satisfactory to Holder, the continuing validity of this Warrant
and the obligations of the Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK
(a) From and after the Funding Date, the Company shall at all
times reserve and keep available for issue upon the exercise of
Warrants such number of its authorized but unissued shares of Common
Stock as will be sufficient to permit the exercise in full of all
outstanding Warrants. All shares of Common Stock which shall be so
issuable, when issued upon exercise of any Warrant and payment therefor
in accordance with the
<PAGE> 13
terms of such Warrant, shall be duly and validly issued and fully paid
and nonassessable, and not subject to preemptive rights.
(b) Before taking any action which would cause an adjustment
reducing the Current Warrant Price below the then par value, if any, of
the shares of Common Stock issuable upon exercise of the Warrants, the
Company shall take any corporate action which may be necessary in order
that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Current
Warrant Price.
(c) Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which this
Warrant is exercisable or in the Current Warrant Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies
having jurisdiction thereof.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by the
Company to the holders of its Common Stock with respect to which any
provision of Section 4 refers to the taking of a record of such
holders, the Company will in each such case take such a record and will
take such record as of the close of business on a Business Day. The
Company will not at any time, except upon dissolution, liquidation or
winding up of the Company, close its stock transfer books or Warrant
transfer books so as to result in preventing or delaying the exercise
or transfer of any Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
The Warrants and the Warrant Shares shall not be transferred,
hypothecated or assigned before satisfaction of the conditions
specified in this Section 9, which conditions are intended to ensure
compliance with the provisions of the Securities Act with respect to
the Transfer of any Warrant or any Warrant Shares. Holder, by
acceptance of this Warrant, agrees to be bound by the provisions of
this Section 9.
9.1 Restrictive Legend. The Holder by accepting this Warrant and any
Warrant Shares agrees that unless registered under the Securities Act of 1933,
as amended (the "Securities Act"), subsequent to the Funding Date and prior to
the exercise hereof, this Warrant and the Warrant Shares issuable upon exercise
hereof may not be assigned or otherwise transferred unless and until (i) the
Company has received an opinion of counsel for the Holder reasonably
satisfactory to the Company and its counsel that such securities may be sold
pursuant to an exemption from registration under the Securities Act or (ii) a
registration statement relating to such securities has been filed by the Company
and declared effective by the Commission.
(a) Each certificate for Warrant Shares issuable hereunder
shall bear a legend as follows unless such securities have been sold
pursuant to an effective registration statement under the Securities
Act:
<PAGE> 14
"These securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or
the securities laws of any state, and are being offered and
sold pursuant to an exemption from the registration
requirements of the Securities Act and such laws. These
securities may not be sold or transferred except pursuant to
an effective registration statement under the Securities Act
or pursuant to an available exemption from the registration
requirements of the Securities Act or such other laws."
(b) Except as otherwise provided in this Section 9, the
Warrant shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT, THE RULES
AND REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS WARRANT."
9.2 Notice of Proposed Transfers. Prior to any Transfer or attempted
Transfer of any Warrants or any shares of Restricted Common Stock, the Holder
shall give ten days, prior written notice (a "Transfer Notice") to the Company
and its counsel of Holder's intention to effect such Transfer, describing the
manner and circumstances of the proposed Transfer, and obtain from counsel to
Holder who shall be reasonably satisfactory to the Company, an opinion that the
proposed Transfer of such Warrants or such Restricted Common Stock may be
effected without registration under the Securities Act. After receipt of the
Transfer Notice and opinion, the Company shall, within five (5) business days
thereof, notify the Holder as to whether such opinion is reasonably satisfactory
and, if so, such holder shall thereupon be entitled to Transfer such Warrants or
such Restricted Common Stock, in accordance with the terms of the Transfer
Notice. Each certificate, if any, evidencing such shares of Restricted Common
Stock issued upon such Transfer shall bear the restrictive legend set forth in
Section 9.1(b), and the Warrant issued upon such Transfer shall bear the
restrictive legend set forth in Section 9.1(c), unless in the opinion of such
counsel such legend is not required in order to ensure compliance with the
Securities Act. The Holder shall not be entitled to Transfer such Warrants or
such Restricted Common Stock until receipt of notice from the Company under this
Section 9.2 that such opinion is reasonably satisfactory.
9.3 Required Registration. Pursuant to the terms and conditions set
forth in the Registration Rights Agreement, the Company shall prepare and file
with the Commission (X) no earlier than (i) seventy-five (75) days following the
Funding Date or (ii) the date on which the Holder shall have given written
notice to the Company that it has waived its right to exercise the Option (as
defined in the Securities Purchase Agreement), and (Y) no later than one hundred
twenty (120) days after May 15, 2000 (the "Benchmark Date"), a Registration
Statement relating to the offer and sale of all of the Common Stock issuable
upon exercise of the Warrants and shall use its best efforts to cause the
Commission to declare such Registration Statement effective
<PAGE> 15
under the Securities Act as promptly as practicable but not later than one
hundred ninety five (195) days after the Benchmark Date.
9.4 Termination of Restrictions. Notwithstanding the foregoing
provisions of Section 9, the restrictions imposed by this Section upon the
transferability of the Warrants, the Warrant Shares and the Restricted Common
Stock and the legend requirements of Section 9.1 shall terminate as to any
particular Warrant or Warrant Shares or shares of Restricted Common Stock (i)
when and so long as such security shall have been effectively registered under
the Securities Act and disposed of pursuant thereto or (ii) when the Company
shall have received an opinion of counsel reasonably satisfactory to it and its
counsel that such shares may be transferred without registration thereof under
the Securities Act. Whenever the restrictions imposed by Section 9 shall
terminate as to this Warrant, as hereinabove provided, the Holder hereof shall
be entitled to receive from the Company upon written request of the Holder, at
the expense of the Company, a new Warrant bearing the following legend in place
of the restrictive legend set forth hereon:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN WARRANT CONTAINED IN
SECTION 9 HEREOF TERMINATED ON , AND ARE OF NO FURTHER
FORCE AND EFFECT."
All Warrants issued upon registration of transfer, division or combination of,
or in substitution for, any Warrant or Warrants entitled to bear such legend
shall have a similar legend endorsed thereon. Whenever the restrictions imposed
by this Section shall terminate as to any share of Restricted Common Stock, as
hereinabove provided, the holder thereof shall be entitled to receive from the
Company, at the Company's expense, a new certificate representing such Common
Stock not bearing the restrictive legend set forth in Section 9.1(b).
9.5 Listing on Securities Exchange. If the Company shall list any
shares of Common Stock on any securities exchange, it will, at its expense, list
thereon, maintain and, when necessary, increase such listing of, all shares of
Common Stock issued or, to the extent permissible under the applicable
securities exchange rules, issuable upon the exercise of this Warrant so long as
any shares of Common Stock shall be so listed during any such Exercise Period.
10. SUPPLYING INFORMATION
The Company shall cooperate with Holder in supplying such information
as may be reasonably necessary for Holder to complete and file any information
reporting forms presently or hereafter required by the Commission as a condition
to the availability of an exemption from the Securities Act for the sale of any
Warrant or Restricted Common Stock.
11. LOSS OR MUTILATION
Upon receipt by the Company from Holder of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of this Warrant and indemnity
<PAGE> 16
reasonably satisfactory to it (it being understood that the written agreement of
the Holder shall be sufficient indemnity), and in case of mutilation upon
surrender and cancellation hereof, the Company will execute and deliver in lieu
hereof a new Warrant of like tenor to Holder; provided, in the case of
mutilation, no indemnity shall be required if this Warrant in identifiable form
is surrendered to the Company for cancellation.
12. OFFICE OF THE COMPANY
As long as any of the Warrants remain outstanding, the Company shall
maintain an office or agency (which may be the principal executive offices of
the Company) where the Warrants may be presented for exercise, registration of
transfer, division or combination as provided in this Warrant.
13. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of the rights or
privileges of Holder hereof, shall give rise to any liability of Holder for the
purchase price of any Common Stock or as a stockholder of the Company, whether
such liability is asserted by the Company or by creditors of the Company, and
the holder shall have no rights as a shareholder of the Company arising from its
status as a Holder of the Warrants.
14. MISCELLANEOUS
14.1 Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of Holder shall operate as a
waiver of such right or otherwise prejudice Holder's rights, powers or remedies.
If the Company fails to make, when due, any payments provided for hereunder, or
fails to comply with any other provision of this Warrant, the Company shall pay
to Holder such amounts as shall be sufficient to cover any reasonable costs and
expenses including, but not limited to, reasonable attorneys' fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.
14.2 Notice Generally. Except as may be otherwise provided herein, any
notice or other communication or delivery required or permitted hereunder shall
be in writing and shall be sent by facsimile with a copy delivered personally or
sent by a nationally recognized overnight courier service, and shall be deemed
given when so delivered personally or by overnight courier service, as follows:
(1) if to the Company, to:
SYMPOSIUM CORPORATION
410 Park Avenue, Suite 830
New York, New York 10022
Attention: Ronald Altbach
Chairman and Chief Executive Officer
<PAGE> 17
Telephone: (212) 754-9901
Facsimile: (212) 754-9906
With a copy to:
KRAMER LEVIN NAFTALIS & FRANKEL LLP
919 Third Avenue
New York, NY 10022
Attention: Howard J. Rothman, Esq.
Telephone: (212) 715-9242
Facsimile: (212) 715-8000
(2) if to the Holder, to:
THE SHAAR FUND LTD.,
c/o SHAAR ADVISORY SERVICES LTD.
62 King George Street, Apartment 4F
Jerusalem, Israel
Attention: Samuel Levinson
with a copy to:
HERRICK, FEINSTEIN LLP
2 Park Avenue
New York, New York 10016
Attention: Irwin A. Kishner, Esq.
Telephone: (212) 592-1400
Facsimile: (212) 889-7577
The Company or the Holder may change the foregoing address by notice given
pursuant to this Section 14.2.
14.3 Indemnification. The Company agrees to indemnify and hold harmless
Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its covenants,
agreements, undertakings or obligations set forth in this Warrant; provided,
however, that the Company will not be liable hereunder to the extent that any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, attorneys' fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder's gross
negligence, bad faith or willful misconduct in its capacity as a stockholder or
warrantholder of the Company.
<PAGE> 18
14.4 Remedies. Holder in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under Section 9 of this Warrant. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of Section 9 of this
Warrant and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
14.5 Successors and Assigns. Subject to the provisions of Sections 3.1
and 9, this Warrant and the rights evidenced hereby shall inure to the benefit
of and be binding upon the successors of the Company and the successors and
assigns of Holder. The provisions of this Warrant are intended to be for the
benefit of all Holders from time to time of this Warrant and, with respect to
Section 9 hereof, holders of Warrant Shares, and shall be enforceable by any
such Holder or holder of Warrant Shares.
14.6 Amendment. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Holder.
14.7 Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant.
14.8 Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
14.9 Governing Law. This Warrant shall be governed by the laws of the
State of Delaware, without regard to the provisions thereof relating to conflict
of laws.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed and its corporate seal to be impressed hereon.
Dated: June 9, 2000
THE COMPANY:
SYMPOSIUM CORPORATION
By: /s/ Richard Kaufman
-----------------------------------------
Richard Kaufman
President
<PAGE> 19
[SEAL]
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably exercises
this warrant for the purchase of Shares of Common Stock of
Symposium Corporation and herewith makes payment therefor, all at the price and
on the terms and conditions specified in this Warrant and requests that
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to ________________________________________________ whose address is
___________________________________ and, if such shares of Common Stock shall
not include all of the shares of Common Stock issuable as provided in this
Warrant, that a new Warrant of like tenor and date for the balance of the shares
of Common Stock issuable hereunder be delivered to the undersigned.
(Name of Registered owner)
(Signature of Registered Owner)
(Street Address)
(City) (State)(Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
EXHIBIT B
ASSIGNMENT FORM
<PAGE> 20
FOR VALUE RECEIVED the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee No. of Shares of
Common Stock
----------------
and does hereby irrevocably constitute and appoint attorney-in-fact
to register such transfer on the books of maintained for the
purpose, with full power of substitution in the premises.
Dated: Print Name:
Signature:
Witness:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
REPRESENTATION AND COVENANT OF ASSIGNEE:
Assignee hereby represents and covenants that neither assignee, its
affiliates, nor any person acting on its or their behalf has entered into or
will enter into, at any time prior to the exercise of the Warrants, any put
option, short position or other similar instrument or position with respect to
the Common Stock, and neither assignee, any of its affiliates, nor any person
acting on its or their behalf has or will use at any time shares of Common Stock
acquired pursuant to this warrant or otherwise to settle any put option, short
position or other similar instrument or position that may have been entered into
prior to the execution of this assignment
ASSIGNEE:
By: ___________________________
Name:
