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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
IN THE ABSENCE OF SUCH A REGISTRATION OR UNLESS THE CORPORATION RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO TERMINATION AND CANCELLATION
UPON THE OCCURRENCE OF CERTAIN EVENTS AND TO RIGHTS OF FIRST OFFER, RIGHTS OF
REPURCHASE, MARKET STAND-OFF AND OTHER RESTRICTIONS CONTAINED IN A WARRANT
RIGHTS AGREEMENT AND IN AN INVESTOR RIGHTS AGREEMENT EACH DATED APRIL 20, 2000.
A COPY OF SUCH AGREEMENTS MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO
THE CORPORATION AT ITS PRINCIPLE PLACE OF BUSINESS.
CORIO, INC.
AMENDED FIRST WARRANT TO PURCHASE COMMON STOCK
WARRANT NO. 1
UP TO 2,333,333 SHARES
ISSUED OCTOBER 14, 2000
THIS CERTIFIES THAT, for value received pursuant to that certain Warrant
Rights Agreement dated as of April 20, 2000 (the "WARRANT RIGHTS AGREEMENT"),
Cap Gemini Ernst & Young U.S. LLC, a limited liability company organized in
Delaware ("CGEY"), and any person to whom the interest in this Warrant is
lawfully transferred pursuant to the terms and conditions set forth herein (the
original holder hereof and such transferees are referred to hereinafter as the
"HOLDER") is entitled to purchase up to TWO MILLION, THREE HUNDRED THIRTY-THREE
THOUSAND, THREE HUNDRED THIRTY-THREE (2,333,333) (subject to adjustment as
provided in Section 2 hereof) shares (the "SHARES") of fully paid and
nonassessable Common Stock (the "COMMON STOCK") of Corio, Inc., a Delaware
corporation (the "COMPANY"), at an exercise price of $6.50 per share, subject to
adjustment as provided in Section 2 hereof (the "PER SHARE EXERCISE PRICE"),
subject to the provisions and upon the terms and conditions set forth herein.
This Warrant is subject to the following terms and conditions:
1. EXERCISE.
1.1 Per Share Purchase Price. The "PER SHARE PURCHASE PRICE" at
which this Warrant may be exercised shall be $6.50, subject to adjustment as
provided in Section 2 hereof.
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1.2 Exercise.
(a) This Warrant may only be exercised on or prior to
December 31, 2001, and the Warrant shall terminate and cease to be exercisable
as of 5:00 p.m., California time, on December 31, 2001.
(b) This Warrant may only be exercised by the Holder, in
whole or in part, by the surrender of this Warrant (together with a duly
executed Notice of Exercise in the form attached hereto as Annex I) at the
principal office of the Company and by the payment to the Company of the then
applicable Per Share Purchase Price multiplied by the number of Warrant Shares
then being purchased (a "CASH EXERCISE"). The aggregate Per Share Purchase Price
shall be paid in cash (by certified check or by wire transfer) or by net
exercise in accordance with the provisions of Section 1.2(c).
(c) Subject to Section 1.2(d) hereof, in lieu of exercising
this Warrant by payment of cash, the Holder may elect to receive, without the
payment by the Holder of any additional consideration, a number of Warrant
Shares (rounded down to the nearest whole share) equal to the value of this
Warrant or any portion hereof by the surrender of this Warrant or such portion
to the Company (the "NET EXERCISE"), with the net issue election duly selected
and initialed in the Notice of Exercise delivered to the Company as provided
above. Thereupon the Company will issue to the Holder such number of shares of
Common Stock of the Company as is computed using the following formula:
X = Y(A-B)
------
A
where X = the number of Warrant Shares to be issued to the Holder upon the
Net Exercise pursuant to this Section 1.2;
Y = the number of Warrant Shares exercised under this Warrant for
which the net issue election is made pursuant to this Section
1.2 (upon such Net Exercise, the number of shares subject to
further exercise under this Warrant shall be reduced by this
number);
A = the Market Price (as defined below) of one share of the
Company's Common Stock on the date the Net Exercise election is
made pursuant to this Section 1.2; and
B = the Per Share Purchase Price in effect under this Warrant
For purposes of this Section 1.2, "MARKET PRICE" means, as to a share of Common
Stock, (i) the average of the closing prices of sales on all domestic securities
exchanges and national markets on which the Common Stock may at the time be
listed, or (ii) if there have been no sales on any such exchange on such day,
the average of the highest bid and lowest asked prices on all such exchanges
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at the end of such day, or (iii) if on such day the Common Stock is not so
listed, the average of the representative bid and asked prices quoted in the
Nasdaq National Market as of 4:00 P.M., New York time, on such day, or (iv) if
on any day the Common Stock is not quoted in the Nasdaq National Market, the
average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over the period of twenty (20) Trading Days immediately preceding the date the
net issue election or other exercise is made pursuant to this Section 1.2;
PROVIDED, HOWEVER, that if the Common Stock is listed on any domestic securities
exchange the term "TRADING DAYS" as used in this sentence means days on which
such exchange is open for trading. If at any time the Common Stock is not listed
on any domestic securities exchange or quoted in the Nasdaq National Market or
the domestic over-the counter market, the "Market Price" shall be the fair value
thereof determined by the Board of Directors of the Company in good faith upon
the request of the Holder (it being understood that if the Holder is not
satisfied with such determination the sole recourse of the Holder is to exercise
the Warrant for cash).
(d) Notwithstanding Section 1.2(c) hereof, no Net Exercise
of all or part of this Warrant under Section 1.2(c) hereof shall be made unless,
on the day of proposed exercise, the Market Price of a share of Common Stock is
at or above $20.00, as appropriately adjusted for stock splits, dividends,
subdivisions, combinations, recapitalizations and the like hereafter. For
greater certainty, if a Net Exercise under Section 1.2(c) hereof may not be made
by a Holder under this Section 1.2(d) on the day of exercise, the sole and
exclusive means of exercise of this Warrant on such day shall be a Cash Exercise
under Section 1.2(b) hereof.
(e) The exercise of this Warrant is also limited by the
provisions of certain agreements between the Company and the original holder of
this Warrant, as specified in Section 3.3 below.
1.3 Limitations on Exercise. The exercise of this Warrant, and the
issuance of the Warrant Shares will be subject to and conditioned upon
compliance by the Company and the Holder with all applicable state and federal
laws and regulations and with all applicable requirements of any stock exchange
or automated quotation system on which the Common Stock may be listed or quoted
at the time of such issuance or transfer. The Company shall, at its sole cost
and expense, use its reasonable best efforts to make all filings, notices and
applications required by the Company (excluding filings, notices and
applications required by the Holder), and take all actions necessary to permit
the exercise of this Warrant by the Holder and the issuance of Warrant Shares to
the Holder, and the Holder shall cooperate with all reasonable requests of the
Company in connection therewith. This Warrant may not be exercised as to fewer
than 100,000 Warrant Shares (subject to appropriate adjustment for stock splits,
dividends, subdivisions, combinations, recapitalizations and the like
hereafter), unless it is exercised as to all Warrant Shares as to which the
Warrant is then exercisable.
1.4 Issuance of New Warrant. In the event of any exercise of the
purchase represented by this Warrant, certificates for the Warrant Shares so
purchased will be delivered to the Holder within ten (10) business days after
receipt of such payment and, unless this Warrant has been fully exercised or has
expired, a new Warrant representing the portion of the Warrant Shares, if any,
respect to which this Warrant will not then have been exercised will also be
issued to the Holder within a reasonable time.
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1.5 Termination. Unless the Warrant shall have previously
terminated in accordance with the provisions of Section 1.2(a), the Warrant
shall terminate and cease to be exercisable on December 31, 2001. In addition,
the number of Shares issuable under this Warrant is subject to reduction (or, if
the Warrant shall have previously been exercised, a number of Shares are subject
to repurchase by the Company at the Per Share Exercise Price) under the terms of
an Investor Rights Agreement with the Company dated April 20, 2000 (the "RIGHTS
AGREEMENT").
2. ADJUSTMENT OF NUMBER OF WARRANT SHARES AND PER SHARE PURCHASE PRICE.
The number of Warrant Shares purchasable upon the exercise of this Warrant, and
the Per Share Purchase Price, will be subject to adjustment from time to time as
provided in this Section 2:
2.1 Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Per Share Purchase Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of shares of Common
Stock obtainable upon exercise of this Warrant shall be proportionately
increased. If the Company at any time combines (by reverse stock split or
otherwise) its outstanding shares of Common Stock into a smaller number of
shares, the Per Share Purchase Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant shall be proportionately decreased.
2.2 Stock Dividends. If the Company at any time while this Warrant
remains outstanding and unexpired pays a dividend, without receipt of
consideration therefor, to the holders of Common Stock payable in shares of
Common Stock, Preferred Stock or other capital stock or other securities
convertible into or exchangeable for Common Stock, Preferred Stock or other
capital stock ("CONVERTIBLE SECURITIES"), or options to purchase Common Stock,
Preferred Stock or other capital stock or Convertible Securities ("OPTIONS"),
other than any event for which adjustment is made pursuant to Section 2.1
hereof, the Holder shall, upon exercise of this Warrant be entitled to receive,
in addition to the number of Warrant Shares receivable thereupon, the amount of
Common Stock, Preferred Stock or other capital stock, Convertible Securities or
Options that such Holder would have received had it been Holder of record of
such Warrant Shares as of the date on which holders of Common Stock received or
became entitled to receive such additional shares of Common Stock, Preferred
Stock or other capital stock, Convertible Securities or Options. Any adjustment
under this Section 2.2 will become effective on the record date or, if there is
no record date, on the date of issuance.
2.3 Reorganization, Reclassifications. Mergers or Sales. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets or other transaction
(including, without limitation, any Corporate Event (as defined in the Rights
Agreement)), in each case that is effected in such a way that the holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets, or a combination thereof, with respect
to or in exchange for Common Stock is referred to herein as an "ORGANIC CHANGE."
Prior to the consummation of any Organic Change, other than any event for which
adjustment is made pursuant to Section 2.1 or 2.2 hereof, the Company shall make
appropriate provision (in form and substance reasonably satisfactory to the
Holder) to ensure that the Holder shall thereafter have the right to acquire and
receive, upon exercise
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of this Warrant in accordance with its terms and upon payment of the Per Share
Exercise Price then in effect, in lieu of each Warrant Share immediately
theretofore acquirable and receivable upon the exercise of this Warrant, such
shares of stock, securities or assets as may be issued or payable with respect
to each Warrant Share immediately theretofore acquirable and receivable upon
exercise of the Warrant had the Warrant been exercised immediately prior to such
Organic Change. The Company shall not effect any such consolidation, merger or
sale, unless prior to the consummation thereof, the successor entity (if other
than the Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument, 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 acquire.
2.4 Certain Events. If (i) any event occurs of a type that would
have an effect on the rights granted under this Warrant similar to the effect of
any event described by the other provisions of this Section 2 and (ii) such
event is not expressly provided for by such other provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or
other rights with equity features), then an appropriate adjustment in the Per
Share Purchase Price and the number of Warrant Shares of Common Stock obtainable
upon exercise of this Warrant so as to protect the rights of the Holder shall be
made.
2.5 Notices.
(a) Within ten (10) business days of any adjustment of the
Per Share Purchase Price, the Company shall give written notice thereof to the
Holder, setting forth and certifying in reasonable detail the facts causing such
adjustment and the calculation of such adjustment. The Company will give due
consideration to, and consult with counsel regarding, any objection the Holder
may have to the matters described in such notice, and will make any corrections
to such notice deemed necessary to conform with the terms of this Warrant.
(b) The Company shall give written notice to the Holder at
least ten (10) business days prior to the date on which the Company closes its
books or takes a record (A) with respect to any dividend or distribution (cash
or otherwise) upon the Common Stock, (B) with respect to any pro rata
subscription or other offer to holders of Common Stock and (C) for determining
rights to vote with respect to any Organic Change, dissolution or liquidation.
(c) The Company shall also give written notice to the Holder
at least ten (10) business days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
3. MISCELLANEOUS.
3.1 Transferability; Successors and Assigns. This Warrant may not
be transferred or assigned, in whole or in part, without the prior written
consent of the Company, except only that the Holder may upon prior written
notice to the Company transfer the Warrant in whole or in part to a parent
entity that wholly owns the Holder or to a wholly-owned subsidiary of the
Holder. CGEY represents and warrants, as a condition to the effectiveness of
this Warrant, that Cap Gemini S.A., on behalf of all its affiliates including
CGEY, has accepted and agreed to be bound by this Warrant
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subject to all of the terms and conditions of the Warrant Rights Agreement, the
Investor Rights Agreement and this Warrant.
3.2 Legends. Any certificate for Warrant Shares issued upon
exercise hereof will be imprinted with a legend in substantially the form set
forth in the Notice of Exercise form attached hereto as Annex 1.
3.3 Other Agreements. The Warrant and the Warrant Shares are
subject to the terms and conditions of that certain Warrant Rights Agreement and
that certain Rights Agreement between the Company and Ernst & Young LLP, each
dated as of April 20, 2000 and, without limiting the generality of the
foregoing, are subject to cancellation and termination upon the occurrence of
certain events, rights of first offer, rights of repurchase, market stand-off
and other restrictions specified in the Warrant Rights Agreement and the Rights
Agreement.
3.4 Governing Law. This Warrant will be governed by and construed
under the Delaware General Corporation Law with respect to matters of corporate
law and, as to matters of law other than corporate law, the internal laws of the
State of California as they apply to agreements among California residents
entered into and to be performed entirely within such state.
3.5 Headings. The headings and captions used in this Warrant are
used for convenience only and are not to be considered in construing or
interpreting this Warrant. All references in this Warrant to sections and
annexes will, unless otherwise provided, refer to sections and hereof and
annexes attached hereto, all of which annexes are incorporated herein by this
reference.
3.6 Notices. Unless otherwise provided, any notice required or
permitted under this Warrant shall be given in writing, shall be effective when
received, and shall in any event be deemed received and effectively given upon
personal delivery to the party to be notified or three (3) business days after
deposit with the United States Post Office, by registered or certified mail,
postage prepaid, or one (1) business day after deposit with a nationally
recognized courier service such as FedEx, or one (1) business day after
facsimile with copy delivered by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof or at such other address as the Investor or
the Company may designate by giving at least ten (10) days advance written
notice, pursuant to this Section 3.6.
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CORIO, INC.
By: /s/ [SIGNATURE ILLEGIBLE]
-----------------------------------
Name: [NAME ILLEGIBLE]
---------------------------------
Title: EVP
--------------------------------
Address: 700 Bay Road, Suite 210
Redwood City, CA 94063
Accepted:
CAP GEMINI ERNST & YOUNG U.S. LLC
By.
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: 750 Seventh Avenue
New York, NY 10019
Attn: General Counsel
<PAGE> 8
CORIO, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: 700 Bay Road, Suite 210
Redwood City, CA 94063
Accepted:
CAP GEMINI ERNST & YOUNG U.S. LLC
By. /s/ JOHN G. NACKEL
------------------------------------
Name: JOHN G. NACKEL
----------------------------------
Title: MANAGING DIRECTOR, NEW VENTURES
---------------------------------
Address: 750 Seventh Avenue
New York, NY 10019
Attn: General Counsel
<PAGE> 9
ANNEX I
NOTICE OF EXERCISE
Corio, Inc.
700 Bay Road
Suite 210
Redwood City, CA 94063
Gentlemen:
On this date the undersigned hereby elects to acquire from Corio, Inc.,
a Delaware corporation (the "COMPANY"), an aggregate of _________ shares of the
Company's Common Stock (the "WARRANT SHARES"), by exercise, for such number of
shares, of that certain Warrant No. 1 to Purchase Common Stock of the Company
dated as of May 23, 2000 (the "WARRANT").
1. Investment Representations and Warranties. The undersigned represents
and warrants that:
1.1 Purchase for Own Account. The Warrant Shares to be purchased by
the undersigned will be acquired for investment for the undersigned's own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and the undersigned has no present intention of
selling, granting any participation in, or otherwise distributing the same. The
undersigned also represents that it has not been formed for the specific purpose
of acquiring the Warrant Shares.
1.2 Disclosure of Information. The undersigned has received or has
had full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Warrant Shares to be
purchased by the undersigned.
1.3 Investment Experience. The undersigned understands that the
purchase of the Warrant Shares involves substantial risk. The undersigned: (a)
has experience as an investor in securities of companies and acknowledges that
it is able to fend for itself, can bear the economic risk of its investment in
the Warrant Shares and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of this
investment in the Warrant Shares and protecting its own interests in connection
with this investment and/or (b) has a preexisting personal or business
relationship with the Company and certain of its officers, directors or
controlling persons of a nature and duration that enables the undersigned to be
aware of the character, business acumen and financial circumstances of such
persons.
1.4 Accredited Investor Status. The undersigned is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
1.5 Restricted Securities. The undersigned understands that the
Warrant Shares to be purchased by the undersigned hereunder constitute
"restricted securities" under the Securities Act inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under the Securities Act and applicable regulations thereunder such
securities may
<PAGE> 10
be resold without registration under the Securities Act only in certain limited
circumstances. The undersigned is familiar with Rule 144 of the SEC, as
currently in effect, and understands the resale limitations imposed thereby and
by the Securities Act. The undersigned understands that the Company is under no
obligation to register any of the securities sold hereunder.
1.6 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, the undersigned further agrees not to make
any disposition of all or any portion of the Warrant Shares unless and until:
(a) there is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) the undersigned has notified the Company of the proposed
disposition and has furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and the undersigned has furnished the
Company, at the expense of the undersigned or its transferee, with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such securities under the Securities Act.
Notwithstanding the provisions of paragraphs (a) and (b) of this Section
1.6, no such registration statement or opinion of counsel will be required for
any transfer of any Warrant Shares in compliance with SEC Rule 144, Rule 144A or
Rule 145(d), or if such transfer otherwise is exempt, in the view of the
Company's legal counsel, from the registration requirements of the Securities
Act; provided, that the Company may request an opinion to such effect from
counsel to the undersigned as a condition to exercise.
1.7 Other Agreements. The undersigned agrees and acknowledges that
the Warrant Shares are subject to the terms and conditions of a Warrant Rights
Agreement and an Investor Rights Agreement, each dated April 20, 2000, between
the Company and Ernst & Young LLP and, without limiting the generality of the
foregoing are subject to termination and cancellation upon the occurrence of
certain events and to rights of first offer, rights of repurchase, market
standoff and other restrictions contained therein.
2. Legends. The undersigned understands that certificates evidencing the
Warrant Shares will bear each of the legends set forth below, as well as any
other legends required by applicable state securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
IN THE ABSENCE OF SUCH A REGISTRATION OR UNLESS THE CORPORATION RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF THE ACT.
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THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO TERMINATION AND CANCELLATION
UPON THE OCCURRENCE OF CERTAIN EVENTS AND TO RIGHTS OF FIRST OFFER, RIGHTS OF
REPURCHASE, MARKET STAND-OFF AND OTHER RESTRICTIONS CONTAINED IN A WARRANT
RIGHTS AGREEMENT AND IN AN INVESTOR RIGHTS AGREEMENT DATED APRIL 20, 2000. A
COPY OF SUCH AGREEMENTS MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO
THE CORPORATION AT ITS PRINCIPLE PLACE OF BUSINESS.
The undersigned agrees that, to ensure and enforce compliance with the
restrictions imposed by applicable law and those referred to in the foregoing
legend, or elsewhere herein, the Company may issue appropriate "stop transfer"
instructions to its transfer agent, if any, with respect to any certificate or
other instrument representing Warrant Shares.
3. Net Exercise Election. If applicable, the undersigned elects to
purchase the Warrant Shares by Net Exercise (as defined in the Warrant), by
initialing in the following space (please initial only if Net Exercise is
chosen): ____________.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
Date:
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