THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH LAWS, OR IF, IN
THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO ALLOY ONLINE, INC., AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THIS LEGEND SHALL BE ENDORSED
UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT TO PURCHASE SHARES OF
COMMON STOCK, PAR VALUE $.01 PER SHARE, OF
ALLOY ONLINE, INC.
No.: W-__ July __, 2000
THIS CERTIFIES THAT, SWI Holdings, LLC ("Holder") or its registered
assigns, for value received, is entitled to purchase, on the terms and subject
to the conditions hereinafter set forth, from Alloy Online, Inc., a Delaware
corporation (the "Company"), at any time, and from time to time, during the
period beginning on the date hereof and ending at 5:00 p.m. local New York, New
York time on the date which is exactly fifteen (15) months after the date hereof
(the "Expiration Date"), that number of shares (the "Warrant Shares") of common
stock, par value one cent ($0.01) per share, of the Company (the "Common
Stock"), if any, as is determined in accordance with the provisions of Section 2
hereof. This Warrant is issued pursuant to the provisions of the Agreement and
Plan of Reorganization Agreement dated as of the date hereof by and among the
Company, Holder, Alloy Acquisition Sub, Inc. and Kubic Marketing, Inc. (the
"Reorganization Agreement").
SECTION 1. EXERCISE PRICE. The exercise price per Warrant Share at
which this Warrant (the "Warrant") may be exercised shall be $0.01 per share
(the "Exercise Price"), as adjusted from time to time in accordance with the
provisions of Section 4 hereof.
SECTION 2. EXERCISE OF WARRANT.
2.1. Number of Warrant Shares for Which Warrant is Exercisable.
(a) Number and Type of Shares. The number of Warrant Shares for which
this Warrant may be exercised at any time prior to its expiration shall be equal
to the lesser of the quotient of the Minimum Value (as defined below) or the
Alternative Minimum Value (as defined below) divided by the average closing sale
price of the Common Stock as quoted on the NASDAQ National Market System for the
thirty (30) trading days ending on the date which is exactly one (1) year after
the date hereof (the "Anniversary Date"), which Warrant shall be exercisable, if
at all, only during the period beginning on the Anniversary Date and ending on
the Expiration Date. The Minimum Value shall be determined as follows: on the
date which is exactly one (1) month after the date hereof (the "Month
Anniversary Date"), and on each subsequent monthly anniversary date thereafter
up to and including the Anniversary Date, the
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Company shall calculate a monthly balance (each, a "Monthly Balance"), which
shall be equal to (a) the average closing sale price of the Common Stock as
quoted on the NASDAQ National Market System for each of the trading days in such
monthly period multiplied by (b) the quotient of (i) the number of Merger Shares
(as defined in the Reorganization Agreement) issued to the Holder on the Closing
Date divided by (ii) 12, which quotient shall initially be 260,509 (the "Monthly
Balance Shares"), and which quotient shall be increased by 1/12 of the
Additional Merger Shares upon determination of the Final Revised Amount (as
defined in the Reorganization Agreement) pursuant to Section 8.6 of the
Reorganization Agreement. The Parent shall deliver a copy of such calculation to
the registered Warrant holder. Promptly after the Anniversary Date, the Company
shall calculate the "Minimum Value," which shall be equal to $21,000,000 less
the sum of the twelve (12) Monthly Balances, and shall deliver a copy of such
calculation to the registered Warrant holder; provided, that if on the
Anniversary Date the sum of the Monthly Balances exceeds $21,000,000, this
Warrant shall be deemed to have expired unexercised and shall have no further
force or effect; and provided further that in the event of an Excess Sales
Month, the Company shall calculate the Alternative Minimum Value pursuant to
subsection (b) below.
(b) Alternative Minimum Value. The Alternative Minimum Value shall be
calculated in the event that Holder in any month commencing on the Month
Anniversary Date up to and including the month ending the Anniversary Date sells
a number of shares of Common Stock in excess of the number of Monthly Balance
Shares (an "Excess Sales Month"). Upon the occurrence of an Excess Sales Month,
the Monthly Balance for such Excess Sales Month will be calculated as set forth
in the paragraph above and the number of Monthly Balance Shares shall be defined
as the "Monthly Entitlement Amount". In any Excess Sales Month, the Monthly
Balance shall be equal to the gross proceeds received in respect of all sales of
Merger Shares in such month. The Monthly Balances for the remaining months up to
and including the month ending on the Anniversary Date, provided that none of
these months are New Excess Sales Months (as defined below), shall be equal to
(a) the average closing sale price of the Common Stock as quoted on the NASDAQ
National Market System for each of the trading days in such monthly period
multiplied by (b) the quotient of (i) the total number of Merger Shares less (x)
the aggregate of the prior Monthly Entitlement Amounts and (y) the number of
Merger Shares sold in the Excess Sales Month, divided by (ii) the number of
months remaining until the month ending on the Anniversary Date (the "New
Monthly Entitlement Amount"). A "New Excess Sales Month" will occur in the event
that Holder sells in excess of the New Monthly Entitlement Amount of shares of
Common Stock in any month up to and including the month ending on the
Anniversary Date. In the event of a New Excess Sales Month, the remaining
Monthly Balances will be calculated in accordance with this paragraph,
substituting the New Monthly Entitlement Amount for the prior Monthly
Entitlement Amount. If any Excess Sales Month shall have occurred, then promptly
after the Anniversary Date, the Company shall calculate the "Alternative Minimum
Value," which shall be equal to $21,000,000 less the sum of the twelve (12)
Monthly Balances calculated pursuant to (i) this subsection (b) and (ii) under
subsection (a) for all months prior to the Excess Sales Month, and shall deliver
a copy of such calculation to the registered Warrant holder; provided, that if
on the Anniversary Date the sum of the Monthly Balances exceeds $21,000,000,
this Warrant shall be deemed to have expired unexercised and shall have no
further force or effect. Nothwithstanding anything contained herein to the
contrary, if all holders of Merger Shares realize aggregate gross proceeds from
sales of the Common Stock of
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$21,000,000 or more prior to the Anniversary Date, this Warrant shall be deemed
to have expired unexercised and shall have no further force or effect. The
Company shall not be required to issue any Warrant Shares hereunder if the sum
of the number of Warrant Shares to be issued hereunder, plus all Merger Shares
issued pursuant to the Reorganization Agreement would exceed 19.9% of the number
of shares outstanding prior to issuance of the Merger Shares unless and until
the Company shall have received approval of its stockholders (not including the
holders of the Merger Shares); provided that the period during which the Warrant
may be exercised shall be extended by any period during which the Warrant can
not be exercised pursuant to the terms of this sentence. Notwithstanding
anything contained herein to the contrary, however, if the exercise of all or
any portion of this Warrant would require the Company to obtain the approval of
its stockholders prior to issuing and listing on the primary trading market for
the Common Stock the shares of Common Stock to be issued upon the exercise
hereof, the Company may elect, upon notice to the registered holder hereof given
at any time prior to the Anniversary Date (a "Redemption Notice"), to redeem all
or a portion of the Warrant for a cash amount, equal in the aggregate, to all or
a portion of the Minimum Value or Alternative Minimum Value, as applicable,
provided that no such redemption would disqualify the Merger from treatment as a
tax free "reorganization" under the Code. Any such redemption shall be
consummated in the manner set forth in subsection (b) hereof.
(c) Redemption. Upon delivery of a Redemption Notice, this Warrant
shall be redeemed, in whole or in part, as specified in the Redemption Notice,
on that date which is exactly one year and one month after the date hereof (the
"Redemption Date") as follows:
(i) Redemption Price. The "Redemption Price" shall be, with
respect to each share into which this Warrant shall be exercisable and in
respect of which this Warrant is to be redeemed, an amount equal to the
difference between (x) $0.01 per share and (y) the average closing sale price of
the Common Stock as quoted on the NASDAQ National Market System for the thirty
(30) trading days ending on the Anniversary Date (the "Stipulated Price").
(ii) Mechanics of Redemption. The Redemption Notice shall be
given by the Company by delivery in person, certified or registered mail, return
receipt requested, telecopier or telex, to each holder of record (at the close
of business on the business day next preceding the day on which the Redemption
Notice is given) notifying such holder of the redemption and specifying the
Redemption Price, the Redemption Date, the number of Warrant Shares to be
redeemed from such holder (computed on a pro rata basis in accordance with the
number of such shares into which all Warrants held by all holders thereof are
exercisable) and the place where said Redemption Price shall be payable. The
Redemption Notice shall be addressed to each holder at his address as shown by
the records of the Company. From and after the close of business on a Redemption
Date, unless there shall have been a default in the payment of the Redemption
Price, all rights of holders of this Warrant to exercise it into Warrant Shares
which have been so redeemed (except the right to receive the Redemption Price)
shall cease on such Redemption Date.
(iii) Funds. On or prior to the Redemption Date, the Company
shall deposit the Redemption Price for all shares into which the Warrant shall
be exercisable which are being redeemed with a bank or trust company as a trust
fund for the benefit of the respective holders of
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the shares into which the Warrant shall be exercisable designated for
redemption, with irrevocable instructions and authority to the bank or trust
company to pay the Redemption Price for such shares to their respective Warrant
holders on or after the Redemption Date upon receipt of notification from the
Company that such holder has surrendered his, her or its Warrant to the Company
for redemption. As of the date of such deposit (even if prior to the Redemption
Date), the deposit shall constitute full payment of the Redemption Price, and
from and after the date of the deposit the Warrant shall no longer be
exercisable for the shares into which the Warrant was exercisable so called for
redemption, and the holder of this Warrant shall have no rights with respect
thereto except the right to receive from the bank or trust company payment of
the Redemption Price therefor, without interest, upon surrender of their
Warrant. The balance of any monies deposited by the Company pursuant to this
subsection (iii) remaining unclaimed at the expiration of the first anniversary
of the Redemption Date shall thereafter be returned to the Company upon its
request in a resolution of its Board of Directors.
2.2. Procedure for Exercise of Warrant.
(a) To exercise this Warrant in whole or in part, the Holder shall
deliver to the Company, at its principal executive office (or such other office
of the Company in the United States as the Company may designate by notice in
writing to the Holder) on or prior to 5:00 p.m. local New York, New York time on
the Expiration Date, (i) the Warrant Certificate attached hereto completed to
specify the number of Warrant Shares as to which the Holder is electing to
exercise under this Warrant, (ii) consideration in an amount equal to the
aggregate Exercise Price of the Warrant Shares being purchased, consisting of
cash or a certified or official bank check, payable to the order of the Company,
and (iii) if this Warrant is being exercised in whole or the last fraction of
this Warrant is being exercised, this Warrant.
2.3 Transfer Restriction Legend. This Warrant and each certificate for
Warrant Shares initially issued upon exercise of this Warrant, unless at the
time of exercise such Warrant Shares are registered under the Securities Act of
1933, as amended (the "Act"), shall bear the following legend (and any
additional legend required by any securities exchange upon which such Warrant
Shares may, at the time of such exercise, be listed and any applicable state
securities administration or commission) on the face thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNLESS REGISTERED PURSUANT TO THE
PROVISIONS OF SUCH LAWS, OR IF, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO ALLOY ONLINE, INC., AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE.
2.4 Acknowledgment of Continuing Obligation. The Company will, at the
time of the exercise of this Warrant, in whole or in part, upon request of the
Holder, acknowledge in writing its continuing obligation to the Holder in
respect of any rights to which the Holder shall continue to be entitled after
such exercise in accordance with this Warrant, provided, that the failure of the
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Holder to make any such request shall not affect the continuing obligation of
the Company to the Holder in respect of such rights.
2.5 Investment Representation. The Holder of this Warrant, by
acceptance hereof, acknowledges that (i) the Holder is an "accredited investor"
within the definition of Regulation D of the Act, (ii) this Warrant and, upon
exercise, the Warrant Shares, are being acquired solely for the Holder's own
account and not as a nominee for any other party, and for investment, and (iii)
the Holder will not offer, sell, transfer, assign or otherwise dispose of this
Warrant or the Warrant Shares issued upon exercise hereof, unless registered
under the Act and applicable state securities laws or pursuant to an opinion of
counsel reasonably satisfactory to the Company that an exemption from
registration under such laws is available. Upon exercise of this Warrant, the
Holder shall, if requested by the Company, confirm, in writing, in a form
reasonably satisfactory to the Company, that the Warrant Shares so purchased are
being acquired solely for the Holder's own account and not as a nominee for any
party for investment.
2.6 Registration Rights. The shares of Common Stock issuable upon the
exercise of this Warrant are entitled to registration rights granted in and
pursuant to that Registration Rights Agreement of even date herewith by and
between the Company, the Holder and the other parties named therein.
SECTION 3. OWNERSHIP, TRANSFER.
3.1 Ownership of this Warrant. The Company may deem and treat the
person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Section 3.
3.2 Exchange, Transfer and Replacement. This Warrant is exchangeable
upon the surrender hereof by the Holder to the Company at its office or agency
for new Warrants of like tenor and date representing in the aggregate the right
to purchase the number of Warrant Shares purchasable hereunder, each of such new
Warrants to represent the portion of this Warrant exchanged as shall be
designated by the Holder at the time of such surrender. Subject to the terms of
this Warrant, this Warrant and all rights hereunder are transferable in whole or
in part upon the books of the Company by the Holder in person or by duly
authorized attorney, and a new Warrant shall be made and delivered by the
Company, of the same tenor as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant duly endorsed at said office or
agency of the Company. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will make and deliver a new Warrant of like
tenor, in lieu of this Warrant. This Warrant shall be promptly canceled by the
Company upon the surrender hereof in connection with any exchange, transfer or
replacement. The Company shall pay all expenses, taxes (other than stock
transfer taxes and income taxes) and other charges payable in connection with
the preparation, execution and delivery of Warrant Shares pursuant to this
Section 3. Notwithstanding the foregoing, this Warrant may not be
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transferred to any Person other than pursuant to the Investment Representation
and Lock-Up Agreement dated as of the date hereof by and between the Company and
the Holder.
SECTION 4. REORGANIZATION, RECLASSIFICATION, RECAPITALIZATION,
CONSOLIDATION, MERGER OR SALE. If any capital reorganization, reclassification
or recapitalization of the capital stock of the Company, or consolidation or
merger of the Company, or sales of all or substantially all of its assets to
another entity, shall be effected in such a way that holders of any of the
Warrant Shares would, if this Warrant were exercised prior to the effective date
thereof, be entitled to receive stock, securities, cash or assets with respect
to or in exchange for any of such Warrant Shares, then, as a condition of such
reorganization, reclassification, recapitalization, consolidation, sale or
merger, lawful and adequate provisions shall be made whereby each holder of this
Warrant shall thereupon be entitled to receive, upon the exercise hereof and
upon the basis and upon the terms and conditions specified herein and in lieu of
the Warrant Shares, such shares of stock, securities, cash or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of any of the Warrant Shares equal to the number of shares as would have
been received upon exercise of this Warrant at the Exercise Price then in effect
immediately before such reorganization, reclassification, recapitalization,
consolidation, sale or merger, and in any such case appropriate provisions shall
be made with respect to the rights and interests of the holders to the end that
the provisions hereof (including without limitation provisions for adjustments
of the applicable Exercise Price) shall thereafter be applicable, as nearly as
may be practicable, in relation to any rights to acquire or shares of stock or
securities delivered to holders in connection with such reorganization,
reclassification, recapitalization, consolidation, sale or merger. Prior to the
consummation of any consolidation or merger or sale of assets of the Company,
the successor corporation resulting from such consolidation or merger, or the
purchaser of such assets, shall agree in writing to be bound by the provisions
hereof. Before taking any action that would cause an adjustment reducing the
Exercise Price below the then-existing par value of the shares of any of the
Warrant Shares issuable upon exercise of this Warrant, the Company shall take
any corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable shares of such Warrant Shares at such adjusted Exercise Price.
SECTION 5. COVENANTS OF THE COMPANY. The Company hereby covenants and
agrees that:
5.1. Reservation of Shares. The Company will reserve and set apart and
have at all times, free from pre-emptive rights, a number of shares of
authorized but unissued Common Stock deliverable upon the exercise of the
Warrant, and any other rights or privileges provided for herein sufficient to
enable it at any time to fulfill all its obligations hereunder.
5.2. Avoidance of Certain Actions. The Company will not, by amendment
of its organizational documents or through any reorganization, transfer of
assets, consolidation, merger, issue or sale of securities or otherwise, avoid
or take any action which would have the effect of avoiding 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 carrying out all
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of the provisions of this Warrant and in taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this
Warrant.
5.3. Governmental Approvals. If any Warrant Shares required to be
reserved for the purposes of exercise of this Warrant require registration with
or approval of any governmental authority under any Federal law (other than the
Act) or under any state law before such Warrant Shares may be issued upon
exercise of this Warrant, the Company will, at its expense, as expeditiously as
possible, use its best efforts to cause such shares to be duly registered or
approved, as the case may be.
5.4. Binding on Successors. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation or acquisition of all
or substantially all of the Company's assets.
SECTION 6. NOTIFICATIONS BY THE COMPANY. In case at any time:
(a) there shall be proposed any transaction of a type referred
to in Section 4 hereof, or
(b) there shall be proposed 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 written notice to
the Holder of the date on which (i) the books of the Company shall close or a
record shall be taken for such dividend, distribution, subscription rights, or
other transaction, and (ii) such reorganization, reclassification,
consolidation, merger, sale, dissolution, other transaction, liquidation or
winding-up shall take place, as the case may be. Such written notice shall be
given not less than five (5) business days prior to the taking of the action in
question.
SECTION 7. NOTICES. Any notice or other document required or permitted
to be given or delivered to the Holder shall be delivered at, or sent by
certified or registered mail to the Holder at the address listed in the stock
records of the Company or to such other address as shall have been furnished to
the Company in writing by such Holder in accordance herewith. Any notice or
other document required or permitted to be given or delivered to the Company
shall be delivered at, or sent by certified or registered mail to, the principal
office of the Company, Attention: President or such other name or address as
shall have been furnished to the Holder by the Company in accordance herewith.
SECTION 8. LIMITATION OF LIABILITY. No provision hereof, in the absence
of affirmative action by the Holder to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the Holder, shall give rise to
any liability of the Holder for the Exercise Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
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SECTION 9. GOVERNING LAW. This Warrant shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without giving effect to its conflicts of laws provisions.
SECTION 10. MISCELLANEOUS. No term of this Warrant may be amended,
except with the joint written consent of the Holder and the Company. The
headings in this Warrant are for purposes of reference only and shall not affect
the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, Alloy Online, Inc. has caused this Warrant to be
signed by its duly authorized officer on the date first written above.
ALLOY ONLINE, INC.
By: /s/ Matthew C. Diamond
------------------------------------
Name: Matthew C. Diamond
----------------------------------
Title: Chief Executive Officer
---------------------------------
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ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER IF IT DESIRES AND
IS PERMITTED TO TRANSFER THE WITHIN WARRANT OF
ALLOY ONLINE, INC.
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and
transfers unto ______________________ the right to purchase ___________ of the
number of shares of Common Stock covered by the within Warrant, and does hereby
irrevocably constitute and appoint ___________________, attorney to transfer the
Warrant on the books of the Company with full power of substitution. All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Warrant to which this Assignment is attached.
Signature:________________________________(SEAL)
Address: ________________________________
________________________________
Dated:_________________
In the presence of: [Name of Institution]
_________________ By:_________________________________
NOTICE:
The signature to the foregoing Assignment must correspond to the name
as written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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WARRANT CERTIFICATE
TO BE EXECUTED BY THE REGISTERED HOLDER
IF IT DESIRES TO EXERCISE THE WITHIN WARRANT OF
ALLOY ONLINE, INC.
The undersigned hereby irrevocably exercises the right to purchase
_________ shares of Common Stock, obtainable by exercise of the within Warrant,
according to the conditions thereof and herewith makes payment of the Exercise
Price in the amount of $___________ for such shares in full. All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Warrant to which this Warrant Certificate is attached.
Signature:_________________________(SEAL)
Address:___________________________
___________________________
Dated:_____________________
In the presence of : [Name of Institution]
___________________________ By:________________________
