<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________________________
CURRENT REPORT
ON
FORM 8-K
PURSUANT TO SECTION 13 OR 15(D)
OF THE
SECURITIES EXCHANGE ACT OF 1934
____________________________
DATE OF REPORT (Date of earliest event reported): May 2, 2000
____________________________
THE NETPLEX GROUP, INC.
(Exact name of registrant as specified in its charter)
____________________________
New York 1-11784 11-2824578
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
1800 Robert Fulton Drive, Suite 250, Reston, Virginia 20191
(Address of principal executive offices)
Registrant's telephone number, including area code: (703) 716-4777
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ITEM 5. OTHER EVENTS.
Co-Branded Services Arrangement
On May 2, 2000, The Netplex Group, Inc.'s ("Netplex") majority-owned
subsidiary, Contractor's Resources (the "Company"), entered into a two-year Co-
Branded Services Agreement (the "Agreement") (attached hereto as Exhibit 99.1)
with TMP Interactive, Inc. ("TMP"), the parent of TMP Worldwide, Inc. (whose
global online career site and flagship brand is Monster.com). Under the terms
of the Agreement, the Company's MyBizOffice(TM), a World Wide Web based service
which provides W-2 status to independent contractors and includes various web-
enabled bundled services through a World Wide Web site currently located at the
URL address "http://www.mybizoffice.com", will be a co-branded component of the
Monster Talent Market, an online auction-style marketplace for independent
professionals. The services offered through MyBizOffice(TM) include W-2 employee
status, time sheet collection and billing, expense reimbursement, accounts
receivable management and customer collections, state/federal/local payroll tax
filings, credit union membership, profit sharing administration, 401(k)
administration, benefits administration, deferred compensation, contract review
and billing rate advice.
Pursuant to the Agreement, the Company will create and host a co-branded
website which may be accessed by means of impressions and links from the Monster
Talent Market and Monster.com, the Company will be positioned within the Monster
Talent Market as the primary provider of the MyBizOffice(TM) service (however,
nothing contained in the Agreement shall prohibit TMP or its affiliates from
developing a service similar to the MyBizOffice(TM) service for use on any web
site owned or operated by TMP or its affiliates, provided that the Company
continues to be the primary provider on the Monster Talent Market) and the
Monster Talent Market will be positioned within mybizoffice.com as the primary
provider of online career information, project search tools, resume and profile
building and search tools, and project listing and resume data for contract
talent.
After the end of the two-year term of the Agreement, the Company shall have
a "right of first negotiation" with respect to continuing to provide the
services contemplated therein. The right of first negotiation requires that, if
TMP, in its sole discretion, determines to continue to offer to users of the
Monster Talent Market and Monster.com a service substantially similar to the
MyBizOffice(TM) service through an unaffiliated online business services
provider after the end of the term, then during the two month period commencing
six months and ending four months before May 2, 2002, TMP will negotiate
exclusively and in good faith with the Company for it to be the primary provider
of services substantially similar to the services offered through
MyBizOffice(TM) on the Monster Talent Market.
Netplex has agreed to guarantee the Company's obligations under the
Agreement; provided, however, that this guarantee obligation, as well as any
other obligation of Netplex under the Agreement, shall terminate upon the
initial public offering of the Company's securities which results in such
securities being listed on the New York Stock Exchange, the Nasdaq National
Market or the Nasdaq Small Cap Market or any other national securities exchange.
Netplex also issued warrants to TMP for the right to purchase 3,000,000 shares
of Netplex
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common stock, consisting of (i) a warrant (incorporated by reference herein as
Exhibit 4.1) for the right to purchase 2,000,000 shares of common stock at an
exercise price of $9.00 (subject to certain adjustments as stated therein),
which expires May 2, 2003 and is not presently exercisable (except under certain
conditions as set forth in the warrant) and (ii) a warrant (incorporated by
reference herein as Exhibit 4.2) for the right to purchase 1,000,000 shares of
common stock at an exercise price of $6.00 (subject to certain adjustments as
stated therein), which expires May 2, 2003 and is currently exercisable. In
addition, the Company agreed to pay TMP $5 million over the two-year term of the
Agreement as a minimum revenue share and slot fee.
The brief explanation of the Agreement and related agreements contained in
this Report is qualified in its entirety by reference to the agreements which
are filed as exhibits hereto.
On May 3, 2000, the Company issued a press release with respect to the
execution of the Agreement and the events described herein. In accordance with
General Instruction F to Form 8-K, a copy of the press release dated May 3,
2000, is attached hereto as Exhibit 20 and is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
4.1 Form of Warrant issued to TMP Interactive, Inc. for the right to
purchase 2,000,000 shares of common stock, dated May 2, 2000.*
4.2 Form of Warrant issued to TMP Interactive, Inc. for the right to
purchase 1,000,000 shares of common stock, dated May 2, 2000.*
20 Press Release of the Company dated May 3, 2000.
99.1 Co-Branded Services Agreement, dated as of May 2, 2000, by and
between TMP Interactive Inc., Contractors Resources, Inc., and The Netplex
Group, Inc.**
* Incorporated by reference to the Registrant's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on May 9, 2000 (Commission
File No. __________).
** Confidential treatment requested for portions of this document.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE NETPLEX GROUP, INC.
(Registrant)
Date: May 22, 2000 By: /s/ Gene F. Zaino
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Name: Gene F. Zaino
Title: Chairman of the Board and President
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EXHIBIT 20
[LETTERHEAD OF NETPLEX APPEARS HERE]
FOR IMMEDIATE RELEASE
Netplex's MyBizOffice Signs Premier Co-Branding
Agreement with Monster.com
Monster.com Issued Warrants to Purchase
$24 Million in Netplex Stock
RESTON, Va. - May 3, 2000 - The Netplex Group, Inc. (Nasdaq: NTPL), today
announced that its online business management service for independent
contractors, MyBizOffice(TM) has entered into a two-year co-branding and profit
sharing agreement with Monster.com, the leading global online careers site and
flagship brand of TMP Worldwide, Inc. (Nasdaq: TMPW; ASX: TMP).
Under the terms of the agreement, MyBizOffice (www.mybizoffice.com) will be a
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co-branded component of the Monster Talent Market(SM) (MTM)
(talentmarket.monster.com), the world's first online, auction-style marketplace
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for free agent talent. MyBizOffice will be the prominently displayed "e-office"
for MTM and will gain access to MTM's current registry of over 175,000
independent professionals and more than 13,000 employers. MyBizOffice is a
Business Services Provider (BSP) that provides comprehensive administrative and
business management services for the vast and growing population of independent
professionals.
As provided in the agreement, Monster.com has been issued warrants to purchase 3
million shares of Netplex stock during the engagement period, resulting in total
potential Netplex proceeds of $24 million. In addition, Netplex has agreed to
pay Monster.com $5 million over the two-year engagement as a minimum revenue
share and slot fee. Netplex will also pay Monster.com an additional 25 to 30
percent of all gross profits, generated through this agreement, that exceed
approximately $11 million during the engagement term.
--more--
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Netplex's MyBizOffice Signs Premier Co-Branding Agreement with Monster.com
Page 2 of 3
"The endorsement of MyBizOffice by the largest and most successful player in the
online recruiting market reflects the many years of perfecting our service to
completely fulfill our members' needs," said Netplex Chairman and CEO Gene
Zaino. "MyBizOffice, which Monster.com selected over other candidates after
months of due diligence, will add value to both companies' offerings and
demonstrate our shared vision of advocacy and support for the independent work
force. Together, we will define a new market where independence is simplified
and a contractor's next project is just a few clicks away."
"The partnership between Monster and MyBizOffice eliminates a significant
portion of the administrative and time-consuming responsibilities of the
independent professional contractor, making it easier than ever to become
independent--and succeed," said Jeff Taylor, CEO of Monster.com. "Adding
MyBizOffice's innovative e-office to Monster Talent Market reinforces our
commitment to delivering the most comprehensive value-added services to our
customers and the employers who rely on them."
Added Zaino, "MyBizOffice members will have access to the world's largest
database of available projects and talent auctions, thus helping to maximize
their revenue producing ability. Member satisfaction has always been our
paramount objective; we spent the last year implementing an infrastructure for
MyBizOffice that can support a significant membership increase without
sacrificing our high customer service standards."
To become a member of the MyBizOffice service, independently minded
professionals must complete an online enrollment application located at
www.mybizoffice.com. The site also features the MyBizOffice Savings Calculator,
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which candidates can use to estimate their potential cost savings as MyBizOffice
members. Members negotiate their own contracts with their clients and
MyBizOffice receives a small percentage of its members' gross revenue for its
full range of services. For more information, please call 877-391-TIME (8463).
About MyBizOffice
MyBizOffice, the online service of Netplex's Contractors Resources, Inc.
subsidiary, is a Business Services Provider (BSP) designed to provide the
financial infrastructure, resources, and business services that help
professionals build careers as independent contractors. MyBizOffice serves as a
"virtual corporate office" (e-office) for its member contractors by providing
the services of a corporate administration staff--such as contract review, time
sheet
--more--
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Netplex's MyBizOffice Signs Premier Co-Branding Agreement with Monster.com
Page 3 of 3
administration, billing and collections, online account management, liability
insurance, health benefits, retirement plans, wealth-building financial
strategies, and tax administration--while helping them keep abreast of
developments that affect their independent life and work style.
About The Netplex Group, Inc.
The Netplex Group, Inc. (Nasdaq: NTPL) (www.netplexgroup.com) creates e-business
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solutions that combine industry-specific business strategies; interactive
digital marketing; user-centric applications and data systems; and secure, high-
performance Internet systems infrastructure. Netplex's complete spectrum of
"industrial-strength" e-solutions positions customers to confidently take
advantage of the new digital economy.
MyBizOffice, Netplex, and the Netplex logo are trademarks of The Netplex Group,
Inc.
Except for historical information, all of the statements, expectations and
assumptions contained in the foregoing are "forward-looking statements" (within
the meaning of the Private Securities Litigation Reform Act of 1995) that
involve a number of risks and uncertainties. It is possible that the assumptions
made by management--including, but not limited to, those relating to contracts,
awards, service offerings, market opportunities, results, performance or
expectations--may not materialize. Actual results may differ materially from
those projected or implied in any forward-looking statements. In addition to the
above factors, other important factors include the risks associated with meeting
contract performance requirements, unforeseen technical difficulties, changes in
technology and standards, dependencies on key employees, availability of
technical talent, dependencies on certain technologies, delays, market
acceptance and competition, as well as other risks described from time to time
in the Company's filings with the Securities Exchange Commission, press
releases, and other communications.
# # #
<PAGE>
EXHIBIT 99.1
EXECUTION COPY
CO-BRANDED SERVICES AGREEMENT
This Co-Branded Services Agreement (this "Agreement"), made as of May
2, 2000, by and between TMP Interactive Inc., a Delaware corporation ("TMP") and
Contractors Resources, Inc., a New Jersey corporation d/b/a MyBiz Office
("MyBiz") and, solely for the purposes set forth on the signature page of this
Agreement, The Netplex Group, Inc., a New York corporation ("Netplex").
W i t n e s s e t h:
WHEREAS, TMP operates an interactive job search service on the World
Wide Web site currently located at the URL address "http://www.Monster.com", but
such address is subject to change ("Monster.com"), and an interactive contract
talent matching service on the World Wide Web site currently located at the URL
addresses "www.talentmarket.Monster.com", "www.monstertalentmarket.com" and
"www.monstertalent.com", but such addresses are subject to change ( "Monster
Talent Market");
WHEREAS, MyBiz operates an online business services provider ("BSP")
which provides W-2 status to independent contractors and includes the following
web-enabled bundled services by means of a World Wide Web site currently located
at the URL address "http://www.mybizoffice.com" but such address is subject to
change ("mybizoffice.com"), (collectively, the "MyBizService"): (i) W-2 employee
status; (ii) time sheet collection and billing; (iii) expense reimbursement;
(iv) accounts receivable management and customer collections; (v)
state/federal/local payroll tax filings; (vi) credit union membership; (vii)
profit sharing administration; (viii) 401(k) administration; (ix) benefits
administration; (x) deferred compensation; (xi) contract review; and (xii)
billing rate advice.
WHEREAS, TMP and MyBiz wish to establish a relationship pursuant to
which (a) MyBiz shall create and host a co-branded website which may be accessed
by means of Impressions from Monster Talent Market and Monster.com; (b) MyBiz
will be positioned within the Monster Talent Market as the premier provider of
the MyBizService; (provided, that nothing contained herein shall prohibit TMP or
its affiliates from developing a service similar to the MyBizService for use on
any web site owned or operated by TMP or its affiliates, provided that MyBiz
continues to be the premier provider on Monster Talent Market); and (c) Monster
Talent Market will be positioned within mybizoffice.com as the leading provider
of online career information, project search tools, resume and profile building
and search tools, and project listing and resume data for contract talent.
WHEREAS, the parties wish to provide the terms and conditions for the
establishment and operation of such relationship.
<PAGE>
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have
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the respective meanings set forth below:
"Affiliated MyBiz Site" means mybizoffice.com,
contractorsresources.com, netplexgroup.com, techcellence.com or any site owned
or operated by MyBiz, Netplex or any direct or indirect subsidiary or parent
thereof.
"BSP" has the meaning set forth in the recitals hereto.
"Change in Control" means (a) the consummation of (i) any
consolidation, merger or reorganization involving a party, unless such
consolidation, merger or reorganization is a "Non-Control Transaction" (as
defined below) or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of such party, or (b) the approval by the stockholders of such
party of any plan or proposal for liquidation or dissolution of such party, or
(c) any person (as such term is used in Section 13(d) and 14(d)(2) of the
Exchange Act), becoming the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of more than 50% of the combined voting power of the
then outstanding voting securities of such party other than, in the case of TMP,
(i) a person who owns or owned shares of TMP Class B Common Stock, (ii) pursuant
to a plan or arrangement entered into by such person and TMP, or (iii) pursuant
to receipt of such shares from a stockholder of TMP pursuant to such
stockholder's will or the laws of descent and distribution. Change in Control
shall not include any modification of the capital ownership of MyBiz as a result
of a public offering resulting in a listing on the New York Stock Exchange, the
Nasdaq National Market, the Nasdaq Small Cap Market or another national stock
exchange.
"Co-Branded Service" means the co-branded website offering the bundled
MyBizService provided by MyBiz and hosted by mybizoffice.com and accessed by
means of links from Monster Talent Market and, to the extent provided in this
Agreement, Monster.com. Subject to Section 3(c), the Co-Branded Service shall
provide access to service offerings of both Monster Talent Market and
mybizoffice.com and shall have the look and feel of Monster Talent Market. In
addition, following the Public Launch Date of the Customized Co-Branded Service
as contemplated by Section 3(b), the term "Co-Branded Service" shall refer to
the Customized Co-Branded Service.
"Confidential Information" has the meaning provided in Section 15 of
this Agreement.
"Customized Co-Branded Service" means a version of the Co-Branded
Service customized for and integrated with the Monster Talent Market and hosted
on mybizoffice.com which will include value-added features to be designated by
TMP and reasonably acceptable to MyBiz for Monster Talent Market users who
register on mybizoffice.com for the MyBizService or
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the Co-Branded Service. Nothing herein shall be construed to require MyBiz to
include features on the Customized Co-Branded Service which are not included in
the MyBizService.
"Disclosing Party" has the meaning provided in Section 15 of this
Agreement.
"e-cruiting" means facilitation of matching and/or recruiting of
independent contractors or employees and employers via the Internet.
"e-procurement" means the management of contingent workers as
independent contractors by means of the Internet.
"e-office BSP" means the administration of back-office services for
independent contractors by means of the Internet.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Gross Revenues" means (a) the gross fees paid for the MyBizService by
Monster Users who enroll for the MyBizService through Monster Talent Market or
via a link from Monster.com and (b) the gross fees of MyBiz from all e-commerce
activities that are generated by such Monster Users. "Gross Revenues" refers
only to the fees paid by, on behalf of, or with respect to, Monster Users for
the MyBizService, and not to the gross billings to the respective clients of the
Monster Users that utilize the MyBizService. Gross Revenues shall include all
payments made in cash and the value of all payments made in services or in kind.
Payments made in services or in kind shall be valued at their fair market value
at the time of such payment.
"Impression" means each instance that a promotion appears on a page
view so long as such promotion links to the Co-Branded Service within an
environment wherein the user has the ability to click on the promotion and be
transferred to the Co-Branded Service.
"Impressions Commitment" has the meaning set forth in Section 4(a)(i)
of this Agreement.
"Impressions Final Shortfall" has the meaning set forth in Section
4(a)(i) of this Agreement.
"Monster.com" has the meaning set forth in the first "Whereas" clause
of this Agreement.
"Monster Talent Market" has the meaning set forth in the first
"Whereas" clause of this Agreement.
"Monster User" means an individual that (a) registers with MyBiz on
the Co-Branded Service (regardless of whether the Monster User is listed as a
referral on such individual's Registration Form), (b) specifies on the
Registration Form a Reference Code (which Reference Code
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shall be provided to MyBiz by TMP) that identifies Monster Talent Market or
otherwise indicates on the Registration Form that such individual was referred
by Monster Talent Market (regardless of how the Co-Branded Service is accessed
by such individual), and/or (c) otherwise registers with MyBiz through Monster
Talent Market and such information is communicated to MyBiz; provided that, in
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the case of either (a), (b) or (c), there is no other effective registration on
file with MyBiz for the individual. In addition to the foregoing, in the event
that Monster Talent Market or Monster.com notifies MyBiz that an individual or
entity that registers with mybizoffice.com who is not a "Monster User" under
clauses (a), (b) or (c) above was referred to MyBiz by Monster Talent Market,
then such individual or entity shall be deemed to be a Monster User unless MyBiz
determines in good faith (subject to TMP's review and reasonable approval) that
the primary reason that such individual or entity registered with MyBiz was
other than the referral by Monster Talent Market or Monster.com.
"MyBiz" has the meaning set forth in the recitals to this Agreement.
"MyBizService" has the meaning set forth in the second recital to this
Agreement.
"mybizoffice.com" has the meaning set forth in the recitals to this
Agreement.
"Non-Control Transaction" means a consolidation, merger or
reorganization of a party where (a) the stockholders of such party immediately
before such consolidation, merger or reorganization own, directly or indirectly,
at least a majority of the combined voting power of the outstanding voting
securities of the corporation resulting from such consolidation, merger or
reorganization (the "Surviving Corporation"), (b) the individuals who were
members of the Board of such party immediately prior to the execution of the
agreement providing for such consolidation, merger or reorganization constitute
at least 50% of the members of the Board of Directors of the Surviving
Corporation, or a corporation directly or indirectly beneficially owning a
majority of the voting securities of the Surviving Corporation and (c) no person
(other than (i) such party, (ii) any subsidiary of such party, (iii) any
employee benefit plan (or any trust forming a part thereof) maintained by such
party, the Surviving Corporation or any subsidiary, or (iv) any person who,
immediately prior to such consolidation, merger or reorganization, beneficially
owned more than 50% of the combined voting power of the then outstanding voting
securities of such party) beneficially owns more than 50% of the combined voting
power of the Surviving Corporation's then outstanding voting securities.
"Public Launch Date" means the date on which the Co-Branded Service is
launched to the general Internet public on mybizoffice.com.
"Receiving Party" has the meaning provided in Section 15 of this
Agreement.
"Reference Code" means a code assigned by MyBiz and prompted for on
the Registration Form indicating that a mybizoffice.com user was referred by a
specific person or entity.
"Registration Form" means a form containing information that
mybizoffice.com requires from its users prior to allowing them to register for
the MyBizService.
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"TMP" has the meaning set forth in the recitals to this Agreement.
2. Term. (a) The term of this Agreement shall commence on the date
----
hereof and shall continue until the second anniversary of the Public Launch Date
unless earlier terminated pursuant to Section 9 of this Agreement.
(b) Unless TMP shall have terminated this Agreement prior to the end
of the term in accordance with Section 9, MyBiz shall have a "right of first
negotiation" with respect to continuing to provide the services contemplated by
this Agreement after the end of the term. The right of first negotiation
requires that, if TMP, in its sole discretion, determines to continue to offer
to users of Monster Talent Market and Monster.com a service substantially
similar to the MyBizService through an unaffiliated BSP after the end of the
term, then during the two month period commencing six months and ending four
months before the second anniversary of the date hereof, TMP agrees to negotiate
exclusively and in good faith with MyBiz to be the premier provider of services
substantially similar to the MyBizService on Monster Talent Market. If, upon
the expiration of such two month period, the material business terms of such
agreement have not been agreed to between the parties, TMP may negotiate and
enter into an agreement to provide such services with a third party on terms to
be agreed upon between TMP and such third party, whether more or less favorable
than those discussed with MyBiz. Neither party shall be obligated to enter into
an agreement to continue providing the services described herein with the other
party.
3. The Co-Branded Service.
----------------------
(a) As soon as practicable following the date of this Agreement MyBiz
shall develop and make available to users a version of the Co-Branded Service
that shall operate with substantially no defects which, in the reasonable
discretion of TMP after consultation with MyBiz, render the Co-Branded Service
inferior to or less functional than the MyBizService operated on
mybizoffice.com. The Co-Branded Service shall not be required to contain
features which are not carried on the MyBizService. After TMP's approval and
acceptance of such version of the Co-Branded Service, MyBiz shall launch the Co-
Branded Service on a mutually-agreed date. TMP shall have the right to review
and approve, in its reasonable discretion, the user interface, site design and
other aspects of the Co-Branded Service prior to its launch. At any time prior
to the Public Launch Date, TMP shall have the right to (i) consult with MyBiz as
often as may be necessary and reasonable regarding the design of, and
development schedule for, the Co-Branded Service; and (ii) provide creative
guidance to MyBiz and assist in the editorial review of the Co-Branded Service.
All references and links on mybizoffice.com to the Co-Branded Service or to TMP
trademarks, trade names or service marks shall be subject to Section 10 hereof.
It is the intention of the parties for the Public Launch Date to occur within 21
business days from the date of this Agreement. The launch date of the Co-
Branded Service shall not occur until TMP, in its sole discretion, has approved
and accepted the version to be launched.
(b) At a mutually-agreed time following the launch of the Co-Branded
Service, MyBiz and TMP shall jointly develop and launch the Customized Co-
Branded Service. The
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<PAGE>
Customized Co-Branded Service shall, when developed to the reasonable
satisfaction of TMP, with the features designated by TMP and reasonably
acceptable to MyBiz, supersede the Co-Branded Service. Thereafter the Customized
Co-Branded Service shall be deemed to be the Co-Branded Service for the purposes
of this Agreement and shall continue to be governed by the terms of this
Agreement.
(c) The Parties will cooperate and use commercially reasonable
efforts to ensure that users have the ability to navigate in a seamless manner
from Monster Talent Market to the Co-Branded Service (i.e., from the user's
perspective it will be readily apparent that the user is aware that he/she is in
a Monster.com co-branded environment).
(d) Except for the promotional efforts of TMP described in Section 4
below, it shall be the responsibility of MyBiz to create, implement and operate
the Co-Branded Service, subject to the rights of TMP hereunder, including,
without limitation, the right to review and approve the Co-Branded Service.
MyBiz will provide the level and quality of customer support that it provides to
its own customers for the Co-Branded Service, adjusted proportionately for
increased traffic and utilization, including without limitation order
processing, billing, fulfillment, collection and other customer services
reasonably requested by TMP associated with any services and products offered,
sold, or licensed through the Co-Branded Service. TMP will have no obligations
with respect thereto except as expressly set forth in this Agreement.
(e) MyBiz shall not cease offering W-2 status and a web-enabled
service on the Co-Branded Service as part of the MyBizService or make any
material change (i) to the Co-Branded Service, or (ii) to the MyBizService to
the extent that such change to the MyBizService could significantly and
adversely affect a user of the Co-Branded Service; provided that this Section
3(e) shall not apply to changes required by applicable law.
(f) MyBiz shall use best efforts to ensure that users of Monster
Talent Market who access the Co-Branded Service are either kept within the Co-
Branded Service (including without limitation by making the logo for the Co-
Branded Service non-clickable) or channeled back into Monster Talent Market
(with the exception of advertising links and excluding a user navigating to
another site through the use of a browser). The parties will work together in
good faith on implementing mutually acceptable, prominent links for the
Affiliated MyBiz Sites which do not permit the User to exit the Co-Branded
Service except to return to Monster Talent Market. In the event that Monster
Talent Market points to any Affiliated MyBiz Site (it being understood that TMP
is under no obligation to provide any such links or pointings) or otherwise
delivers traffic to such site, MyBiz will ensure that navigation back to Monster
Talent Market from such site, whether through a particular pointer or link, the
"back" button on an Internet browser, the closing of an active window, or any
other return mechanism, shall not be interrupted by MyBiz through the use of any
intermediate screen or other device not specifically requested by the user,
including without limitation through the use of any html pop-up window or any
similar device.
(g) Where applicable, MyBiz will utilize agreed upon encryption
methodology to secure data communications between the parties' data centers.
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(h) MyBiz will maintain a graphical user interface within the site
for the Co-Branded Service that is competitive in all material respects as
determined by TMP in its reasonable discretion with interfaces of other sites
based on similar form technology.
(i) MyBiz shall use all commercially reasonable efforts to conform
its promotion and offering of the Co-Branded Service to the then-existing
technologies identified by TMP which are optimized for Monster Talent Market;
provided that, the incremental investment required to implement the change is
reasonable relative to the user traffic and is in accordance with accepted
industry standards. TMP shall be entitled to require reasonable changes to the
technological aspects of the Co-Branded Service to the extent such technological
aspect of the Co-Branded Service will, in the good faith judgment of TMP, have a
material adverse effect upon any operational aspect of the Monster Talent
Market; provided that, the incremental investment required to implement the
change is reasonable relative to the user traffic and is in accordance with
accepted industry standards. MyBiz acknowledges that TMP may require changes to,
and programming of, the mybizoffice.com site.
(j) The Co-Branded site shall contain "headers" and "footers"
provided by TMP that will include links to the appropriate areas of Monster
Talent Market or Monster.com. Upon the public announcement by Media Metrix, Inc.
of the availability of a syndicated report, the parties will reconsider in good
faith the selection of such URLs. The purpose of such reconsideration shall be
to endeavor to obtain for both parties credit for user traffic (but in no event
shall such reconsideration result in MyBiz receiving less credit for traffic,
page views, unique visits or reach). TMP will use all commercially reasonable
efforts to cause Media Metrix, Inc. and other ratings agencies not to include
the Co-Branded Service on reports which include MyBiz, provided that such
efforts will not adversely affect TMP vis-a-vis other job search services. If
Media Metrix, Inc. determines that it is not possible to credit both TMP and
MyBiz for the user traffic to the Co-Branded Service, the party receiving the
credit shall give copies of any reports generated by Media Metrix, Inc. and
allow such party to publicly disclose the contents of such report and the fact
that the Co-Branded Service is a co-branded effort undertaken by Monster.com and
MyBiz.
(k) MyBiz shall establish a base of operations at TMP's corporate
headquarters in Maynard, Massachusetts at such time as the parties deem
advisable. MyBiz shall remain responsible for all costs and liabilities with
respect to its employees, consultants and other agents located at or using TMP
corporate headquarters; provided that (i) MyBiz shall not be required to pay any
rent or other compensation for space used at TMP corporate headquarters, and
(ii) MyBiz shall not be responsible for liabilities arising from the intentional
acts or omissions, or negligence, of TMP, its affiliates, employees or agents.
(l) MyBiz will ensure that the Co-Branded Service complies in all
material respects at all times with the criteria set forth in Exhibit B. In the
event MyBiz fails to comply with any material terms of Exhibit B or with Section
5(b) and MyBiz fails to cure such failure within fifteen (15) days of such
written notice, or such additional period of time, not to exceed an additional
fifteen (15) days, as is reasonably necessary so long as MyBiz is diligently
prosecuting a cure, to
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<PAGE>
MyBiz of such non-compliance, TMP will have the right (as its sole remedy other
than in the event of termination in accordance with Section 9 hereof for MyBiz's
breach, which remedy shall not be affected hereby) to decrease the Impressions
it provides to MyBiz hereunder on a proportional basis until such time as MyBiz
corrects its non-compliance (and in such event, TMP will be relieved of the
proportionate amount of any Impressions Commitment made to MyBiz by TMP
hereunder corresponding to such decrease in promotion); provided, however, that
in no event shall such right to decrease the Impressions exceed twenty percent
(20%) of the Impressions to be delivered. In addition, MyBiz shall notify TMP by
telephone promptly after MyBiz becomes aware that the Co-Branded Service has
become unavailable to users for any reason other than for scheduled maintenance,
providing such details as may be available, including the time of outage and
planned resolution of the problem.
(m) Both TMP and MyBiz agree to explore sharing editorial content at
a future date or dates to be mutually agreed, with the terms of any such sharing
to be negotiated by separate agreement.
(n) TMP and MyBiz agree that the Co-Branded Service may contain e-
commerce functions so long as such e-commerce functions are directly related to
those services offered by the MyBizService which are also offered on the Co-
Branded Service. No e-commerce services shall be incorporated into the Co-
Branded Service without the prior consent of TMP, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, TMP hereby consents to
MyBiz entering into e-commerce transactions with a financial services provider
and an insurance provider, subject to TMP's consent, which consent shall not be
unreasonably withheld, to the functionality, technical specifications and
service offerings of the proposed e-commerce transaction. In addition, any e-
commerce function shall not permit a user to exit (through a navigational link)
the Co-Branded Service except to return to Monster Talent Market.
4. Promotion of the Co-Branded Service.
-----------------------------------
(a) From and after the Public Launch Date, TMP will promote the Co-
Branded Service, apprising users of Monster Talent Market of the Co-Branded
Service and its features and permitting such users to access the Co-Branded
Service. TMP shall perform the following promotional activities:
(i) Subject to Section 3(l), TMP shall deliver * Impressions to
the Co-Branded Service via Monster.com and Monster Talent Market
during the term of this Agreement in accordance with the carriage plan
attached hereto as Exhibit A (the "Impressions Commitment"). Such
---------
Impressions shall be delivered through a continuous link on Monster
Talent Market, which placement shall be reasonably determined by TMP.
TMP shall deliver the Impressions in a commercially reasonable manner
and TMP's obligation to deliver the continuous link described above
shall continue throughout the term of this Agreement, notwithstanding
that the Impressions Commitment for a given year has been met. Any
shortfall in Impressions at the end of a year will not be deemed a
breach of the Agreement by
*Confidential portions have been omitted and filed separately with the
Commission.
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<PAGE>
TMP; instead any such shortfall greater than fifteen (15%) percent of
the annual Impressions Commitment for such year will be added to the
Impressions Commitment for the subsequent year. In the event there is
(or will be in TMP's reasonable judgment) a shortfall in Impressions
as of the end of the term greater than fifteen (15%) percent of the
total Impressions (the "Impressions Final Shortfall"), TMP will,
within twelve (12) months after the end of the term, provide MyBiz, as
its sole remedy, with Impressions equal in number to the Impressions
Final Shortfall, which Impressions will point to mybizoffice.com; and
(ii) TMP shall promote the Co-Branded Service through Impressions
delivered from Monster.com and, if TMP deems advisable, in its sole
discretion, through marketing efforts which are in addition to those
specified above as a bundled solution for contractors utilizing the
Monster Talent Market; and
(iii) TMP shall maintain complete, clear and accurate records of all
Impressions. For the sole purpose of ensuring compliance with this
Agreement, MyBiz will have the right, exercisable not more than twice
every twelve months, to appoint an independent certified public
accountant to conduct a reasonable inspection of that portion of the
books and records of TMP which is relevant to the recording of
Impressions. Any such audit may be conducted after 20 business days'
prior written notice and during TMP's normal business hours.
(b) MyBiz shall, at TMP's request, perform the following promotional
activities, subject in each case to reasonable prior review and approval by TMP,
which shall not be unreasonably withheld or delayed:
(i) Promote Monster Talent Market in a mutually agreed upon manner
on mybizoffice.com as the premier resource for interactive contract
talent matching and career management at no cost to TMP, in order to
encourage users who are identified as appropriate for the MyBizService
to register with Monster Talent Market;
(ii) Promote Monster Talent Market in a mutually agreed upon manner
through marketing beyond the delivery of Impressions to users who are
identified as appropriate for the MyBizService;
(iii) Offer a co-branded version of Monster Talent Market, to be
hosted by Monster.com, if and on such date as is mutually agreed upon
by both parties; and
(iv) Perform other marketing activities to be jointly determined by
the parties hereto.
(c) TMP and MyBiz shall cooperate in issuing a joint press release
announcing the business relationship in a form and at a time to be mutually
agreed. TMP and MyBiz shall
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<PAGE>
cooperate in issuing joint press releases regarding selected other future
activities as appropriate; provided, that after the mutually agreed upon
release, either party may issue a press release by itself upon five (5) days'
prior written notice to the other party if the other party does not reasonably
object to such press release within three (3) days after receipt of such notice.
Either party may unilaterally issue a press release without the consent of the
other party if, in the releasing party's reasonable discretion, it determines
that such press release is necessary to comply with any requirement of law or
any contractual obligation such party has to a third party. Either party will
submit to the other party for its prior written approval, which will not be
unreasonably withheld or delayed, any marketing, advertising or other
promotional materials, including press releases, related to the Co-Branded
Service or referencing such party or its trade names, trademarks and service
marks. Each party will solicit and reasonably consider the views of the other
party in designing and implementing such promotional materials.
(d) Both Monster Talent Market and MyBiz agree to explore joint
corporate sales opportunities at a future date or dates to be mutually agreed;
provided, however, that nothing herein shall be construed to require any such
joint activities. The terms of any agreement relating to such joint activities
will be governed by a separate agreement and will be based on revenue-sharing
arrangements additional and incremental to those set forth in this Agreement.
(e) Subject to MyBiz's approval (not to be unreasonably withheld),
and, except for TMP's obligation to provide the continuous link set forth in
Section 4(a)(i), TMP will have the right to fulfill its promotional commitments
with respect to any of the foregoing by providing MyBiz comparable promotional
placements in appropriate alternative areas of Monster.com and Monster Talent
Market. In addition, except for TMP's obligation to provide the continuous link
set forth in Section 4(a)(i), if TMP is unable to deliver any of the promotions
required to be delivered in accordance with Section 4(a) above, TMP will work
with MyBiz to provide MyBiz, as its sole remedy, a comparable promotional
placement. The term "comparable promotional placement" means placements which
are of comparable overall value, as reasonably mutually agreed by TMP and MyBiz,
to be based on a variety of factors, including without limitation, size,
quality, type (e.g., integrated banner), location (i.e., page or screen and the
subject matter thereof) and/or demographically targeted relevance, audience
reach (taking into account the targeted nature of the placement) and the
performance of the placement.
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<PAGE>
5. Control and Performance.
-----------------------
(a) MyBiz shall comply with the performance measures set forth on
Exhibit B to this Agreement. Failure to meet such performance criteria shall be
- ---------
considered material breach and be grounds for termination by TMP in accordance
with Section 9(a)(iii), subject to the notice provisions and the cure periods
set forth in Section 9(a)(iii).
(b) MyBiz shall (i) provide customer service to persons or entities
purchasing products through the Co-Branded Service ("Customers"), (ii) bear full
responsibility for all customer service, including without limitation, order
processing, billing, fulfillment, shipment, collection and other customer
service associated with any products offered (other than with respect to third
party e-commerce transactions, which service is to be provided by third
parties), (iii) provide an email address and telephone number to Customers, (iv)
respond to such emails and phone calls by the next business day of receipt, and
(v) provide a level of customer service consistent with the relevant accepted
industry standards.
6. Revenue Sharing. MyBiz shall pay TMP (a) the product of (x) 25%
---------------
of Gross Revenues and (y) MyBiz' profit margin on the Gross Revenues (which
margin shall in no event be less than 70% of Gross Revenues), with a minimum
payment of * , during the first year of this Agreement and (b) the product of
(x) 30% of Gross Revenues and (y) MyBiz' profit margin on the Gross Revenues
(which margin shall in no event be less than 70% of Gross Revenues), with a
minimum payment of * , during the second year of this Agreement. MyBiz shall
pay the greater of (x) the applicable percentage of actual Gross Revenues or
(y) 25% of the applicable annual minimum payment to TMP within 30 days following
the end of each calendar quarter during the term of this Agreement, beginning
with the calendar quarter ending June 30, 2000, and with a final payment due
within thirty days following the expiration or termination of this Agreement.
Each payment to be made by MyBiz pursuant to this Section 6 will be accompanied
by a report containing information which supports the payment, including
information identifying the applicable contractors and related Gross Revenues.
TMP shall have the right, upon 20 business days' prior written notice but no
more than twice per year, to have an independent public accountant conduct a
reasonable inspection of the books and records of MyBiz that are relevant to the
determination of Gross Revenues. Such audit shall be conducted during My Biz'
normal business hours in a commercially reasonable manner.
7. Slotting Fees. In addition to the revenue sharing arrangements
-------------
set forth in Section 6 of this Agreement and in consideration of TMP's
obligations under this Agreement, MyBiz shall pay TMP aggregate slotting fees of
* , of which * shall be paid concurrently with the execution of this
Agreement and the remainder in seven installments of * payable
on the first business day of August and November, 2000, February, May, August
and November, 2001 and February, 2002. Interest shall be charged on overdue
amounts at the rate of one and one half percent per month or the maximum legal
rate, whichever is less.
* Confidential portions have been omitted and filed separately with the
Commission.
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<PAGE>
8. Warrants. Concurrently with and as a condition to the
--------
effectiveness of this Agreement, Netplex shall execute and deliver to TMP a
Common Stock Purchase Warrant in the form attached hereto as Exhibit C.
---------
9. Termination.
-----------
(a) This Agreement may be terminated by a party for cause immediately
by written notice upon the occurrence of any of the following events: (i) if the
other ceases to do business, or otherwise terminates its business operations;
(ii) if the other shall fail to promptly secure or renew any license,
registration, permit, authorization or approval for the conduct of its business
in the manner contemplated by this Agreement or if any such license,
registration, permit, authorization or approval is revoked or suspended and not
reinstated within thirty (30) days; (iii) if the other breaches any material
provision of this Agreement and fails to cure such breach within fifteen (15)
days (ten (10) days in the case of failure to pay) of written notice describing
the breach, or such additional period of time not to exceed an additional
fifteen (15) days, as is reasonably necessary so long as MyBiz is diligently
prosecuting a cure (provided, that this cure period shall not apply to a breach
of Section 20(e) hereof); (iv) upon thirty (30) days' written notice to the
other if there has occurred a Change in Control of such party resulting in the
control of such party by a competitor of the party not experiencing a Change in
Control except in the case of an initial public offering of MyBiz securities or
as the result of a spin-off of MyBiz by Netplex; (v) if the other becomes
insolvent, or seeks protection under any bankruptcy, receivership, trust deed,
creditor's arrangement composition or comparable proceeding, or if any such
proceeding is instituted against the other and not dismissed within thirty (30)
days; (vi) if MyBiz ceases to provide W-2 employee status to independent
contractors who register with MyBiz over the Internet; and (vii) if MyBiz
breaches Section 5(b) and fails to cure such breach within fifteen (15) days of
written notice from TMP or such additional period of time not to exceed an
additional fifteen (15) days, as is reasonably necessary so long as MyBiz is
diligently prosecuting a cure.
(b) Upon a breach by MyBiz of this Agreement pursuant to Sections
9(a)(i), 9(a)(ii), 9(a)(iii), 9(a)(iv), 9(a) (v) or 9(a)(vi), TMP shall have the
right to terminate this Agreement and to collect fifty percent (50%) of the
obligations due to it pursuant to Section 7. Such fifty percent (50%) amount
shall be payable on the dates and in the same manner as would have been required
had the Agreement not been terminated. Upon a breach by MyBiz of Section
9(a)(vii) of this Agreement, TMP shall have the right to terminate this
Agreement as its sole remedy, except as otherwise provided in Section 3(l).
(c) The terms of Sections 11, 12, 13, 15 and 17 shall survive
expiration or termination of this Agreement.
(d) Upon the expiration or termination of this Agreement, each party
shall promptly (i) remove any reference to the Co-Branded Service from its site
and cease all use of the other party's trade marks, trade names and service
marks and (ii) return to the other all of the
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<PAGE>
Confidential Information (as defined in Section 15 of this Agreement) of the
other party in its possession or control.
(e) If this Agreement is terminated by TMP pursuant to Section 9
hereof, TMP shall have the right (but not the obligation), upon the expiration
or termination of this Agreement, to require MyBiz to continue providing the
services described under this Agreement for a period of fifteen (15) days from
the date of termination.
10. Intellectual Property.
---------------------
(a) MyBiz hereby grants to TMP for the duration of this Agreement, a
non-exclusive royalty-free license to use its "MyBizOffice" trademark, tradename
and service mark, but such license shall be solely for the purpose of
advertising and promoting the Co-Branded Service as provided in this Agreement.
TMP shall not use MyBiz's trade names, trademarks or service marks without
MyBiz's prior review and written consent, which consent shall not be
unreasonably withheld. TMP shall not by virtue of this Agreement obtain or
claim any right, title or interest to in or to such trademarks, trade names or
service marks, except the right of use specified herein, and the parties hereby
acknowledge and agree that all such use and associated goodwill with such
trademarks, trade names and service marks shall inure to the benefit of MyBiz
and its licensors. All rights conferred on TMP pursuant to this Section 10(a)
shall terminate upon the expiration or termination of this Agreement.
(b) TMP hereby grants to MyBiz for the duration of this Agreement, a
non-exclusive royalty-free license to use its "Monster Talent Market" trademark,
tradename and service mark, but such license shall be solely for the purpose of
advertising and promoting the Co-Branded Service as provided in this Agreement.
MyBiz shall not use TMP's trade names, trademarks or service marks without TMP's
prior review and written consent, which consent shall not be unreasonably
withheld. MyBiz shall not by virtue of this Agreement obtain or claim any
right, title or interest to in or to such trademarks, trade names or service
marks, except the right of use specified herein, and the parties hereby
acknowledge and agree that all such use and goodwill associated with such
trademarks, trade names and service marks shall inure to the benefit of TMP and
its licensors. All rights conferred on MyBiz pursuant to this Section 10(b)
shall terminate upon the expiration or termination of this Agreement.
(c) Each party using the other party's marks shall display symbols
and notices clearly and sufficiently indicating the trademark and service mark
status and ownership of the other party's marks in accordance with applicable
trademark law and practice.
(d) Nothing in this Agreement shall be construed in any manner to
affect or modify either party's ownership rights in any preexisting or future
works, trademarks, service marks, copyrights or technologies developed or
created by such party, including without limitation the parties' respective
proprietary software used in connection with the development and provision of
the Co-Branded Service. Monster Talent Market, Monster.com, and all proprietary
rights thereto, including without limitation patent, copyright and trade secret,
are and shall remain the exclusive
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<PAGE>
property of TMP. Without limiting the foregoing, TMP reserves the right to
redesign or modify the organization, structure, "look and feel", navigation and
other elements of Monster.com (including, without limitation, Monster Talent
Market), and any individual or aggregated components and/or elements thereof, at
any time. MyBiz acknowledges and agrees that TMP will own all right, title and
interest to the elements of graphics, design, organization, presentation,
layout, user interface, navigation and stylistic convention (including the
digital implementations thereof) which are generally associated with online
areas contained within Monster.com. Techcellence.com, mybizoffice.com,
ContractorsResources.com and all proprietary rights thereto, including without
limitation patent, copyright and trade secret, are and shall remain the
exclusive property of MyBiz.
11. Indemnification.
---------------
(a) Each party shall defend the other party and its affiliated
companies against all claims, suits, and proceedings brought by third parties,
and will indemnify and hold them harmless from and against any and all related
liabilities, losses, expenses, damages and costs (including, without limitation,
reasonable attorneys' fees) relating to or incurred in connection with (i) a
breach by the indemnifying party of this Agreement or (ii) the use by the
indemnified party, in a manner which is not knowingly or recklessly improper or
which is not inconsistent with the terms of this Agreement, of any content,
products, services, software, or other materials or information (A) provided by
the indemnifying party to the indemnified party or (B) accessible on such
indemnifying party's World Wide Web site, including any third-party claims
alleging infringement of any copyright, trademark, service mark or other
intellectual property right or alleging libel, defamation or invasion of
privacy. Notwithstanding anything to the contrary contained in this Agreement,
for purposes of the foregoing indemnity, the parties acknowledge that the
following items shall not constitute material or information with respect to
which TMP has an obligation of indemnification under this Agreement; all job
postings and listings, all resumes, all Monster Talent Market projects and
profiles, all chat room submissions, all advertisements of any sort provided by
third parties, all forum submissions and all materials submitted by MyBiz or a
third party to Monster.com.
(b) MyBiz shall defend TMP and its affiliated companies against all
claims, suits, and proceedings brought by third parties, and will indemnify and
hold them harmless from and against any and all related liabilities, losses,
expenses, damages and costs (including, without limitation, reasonable
attorneys' fees) relating to or incurred in connection with the creation,
implementation and operation by MyBiz of the Co-Branded Service, including
without limitation claims that Co-Branded Service is defective, violates tax,
employment or other applicable laws or misleads consumers, claims that TMP
and/or Monster is an employer for any legal or tax purpose and claims (including
claims by MyBiz and its affiliates' employees, consultants and agents) arising
out of the use of or presence by MyBiz and its affiliates, employees,
consultants and agents, at TMP's corporate headquarters in accordance with
Section 3(k) hereof. Notwithstanding the foregoing, the indemnity set forth in
this Section 11(b) shall not apply to any liabilities, losses, expenses, damages
and costs resulting from any action or inaction required, requested or approved
by TMP or due to the negligence or willful misconduct of TMP.
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<PAGE>
(c) The indemnified party will: promptly notify the indemnifying
party of any claim, suit or proceeding for which defense or indemnity is
claimed; cooperate reasonably with the indemnifying party at the latter's
expense; and allow the indemnifying party to control the defense or settlement
thereof; provided, however, that an indemnifying party may not consent to entry
of any judgment or enter into any settlement without the prior written consent
of the indemnified party (which consent shall not be unreasonably withheld or
delayed), unless such judgment or settlement provides solely for money damages
or other money payments which the indemnifying party actually pays on behalf of
the indemnified party and includes as an unconditional term thereof a release of
the indemnified party from all liability in respect of the claim, suit or
proceeding giving rise to the claim for indemnification. The indemnified party
will have the right to participate in any defense of a claim and/or to be
represented by counsel of its own choosing at its own expense.
12. No Warranties. Each party agrees to perform its obligations
-------------
under this Agreement in a reasonable and business-like fashion. EXCEPT AS
AFORESAID OR AS OTHERWISE PROVIDED IN THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION SECTION 20 HERETO, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR AGAINST INFRINGEMENT, WITH RESPECT TO (A) ITS RESPECTIVE WORLD WIDE
WEB SITES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, OR (B)
ANY CONTENT, SOFTWARE, USAGE STATISTICS, OR OTHER MATERIALS OR INFORMATION
PROVIDED TO THE OTHER PARTY, OR (C) THE SERVICES PROVIDED BY EITHER PARTY
HEREUNDER.
13. Limitation of Liability. Except as provided in this Section 13,
-----------------------
in no event shall either party be liable for consequential, incidental, special
or indirect damages, including, but not limited to, loss of profits or sales or
loss of or damage to data, regardless of the form of action, whether in
contract, tort, breach of warranty or otherwise, even if a party has been
advised of the possibility thereof. Notwithstanding anything else in this
Agreement, the maximum liability of each party under this Agreement shall be
limited to the amounts payable to TMP pursuant to Sections 6 and 7 hereof, which
amount shall not include the value of any warrants issued to TMP or any security
underlying such warrants. The limitation of liability set forth in this Section
13 shall not apply with respect to either party's indemnity obligations solely
to the extent arising out of or relating to any third party claim which alleges,
relates to or is a result of a claim of gross negligence, intentional tort, or
any breach of any representation, warranty, covenant or agreement contained
herein.
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<PAGE>
14 Non-Competition.
---------------
(a) During the term of this Agreement, neither MyBiz nor Netplex
shall provide customized and/or co-branded e-office BSP services to any site
listed on Schedule A hereto (which Schedule shall be updated by TMP and MyBiz at
least once every six months) or * . In addition, neither MyBiz nor Netplex
shall enter or participate in the e-cruiting business or operate, or, except as
otherwise specifically provided herein, directly or indirectly participate in, a
talent matching service during the term of this Agreement. In addition, MyBiz
will promote Monster.com's electronic profile as its standard system for storage
of skill sets, resumes and career management data, and will not host or allow
to be hosted on any Affiliated MyBiz Site any electronic profile for such
purposes. Notwithstanding the foregoing, MyBiz may accept advertising from,
provide non-customized and non-co-branded links to, and provide services to,
other job boards or free agent sites which may be competitive with Monster.com.
(b) During the term of this Agreement, MyBiz will be the premier e-
office BSP on Monster Talent Market (i.e., no other e-office BSP site will be
featured as prominently on Monster Talent Market and no other e-office BSP shall
receive a continuous link on Monster Talent Market in a more prominent manner);
provided, however, that (i) Monster.com may offer services from and links to
other providers which may be deemed competitive with portions of the
MyBizService, (ii) Monster.com may offer a service directly competitive with the
MyBizService on Monster.com and (iii) Monster.com may offer customized solutions
to clients on a case-by-case basis that consist of or include services selected
by the applicable client that are competitive with the MyBizService. In
addition, during the term of this Agreement, TMP will not enter into or
participate in the e-office business; provided, however, that TMP Worldwide Inc.
and/or any third party which provides e-office business services on Monster
Talent Market may participate in e-office BSP business services, so long as such
services are displayed less prominently than the Co-Branded Service on Monster
Talent Market. The provisions of this Section 14(b) shall be limited to Monster
Talent Market and shall not apply to other portions of Monster.com.
15 Confidentiality. Each party shall keep the specific terms of
---------------
this Agreement confidential and not disclose them to any third party (other than
to its attorneys and accountants) without the other party's prior written
consent, except as required by law. In addition, in connection with the
negotiation and performance of this Agreement, a party (the "Receiving Party")
may receive information of the other party (the "Disclosing Party") which is
confidential or proprietary in nature, including without limitation information
about a party's products and the Co-Branded Service ("Confidential
Information"). Information disclosed under this Agreement will be considered
Confidential Information only if it is labeled confidential or proprietary or,
for information disclosed orally, if it is identified as confidential or
proprietary at the time of disclosure. The Receiving Party agrees that, during
the term of this Agreement and thereafter, it will keep the Confidential
Information in strictest confidence and protect such Confidential Information by
similar security measures as it takes to protect its own Confidential
Information of a similar nature. The Receiving Party also agrees that it will
not use any Confidential Information for any purpose other than in connection
with the performance of its obligations under this Agreement. The term
* Confidential portions have been omitted and filed separately with the
Commission.
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<PAGE>
"Confidential Information" shall not include information which is or becomes
generally available to the public without breach of this Agreement, is in the
possession of the Receiving Party prior to its disclosure by the Disclosing
Party, becomes available from a third party not in breach of any obligations of
confidentiality, or is independently developed by the Receiving Party. In
addition to the foregoing confidentiality obligations, MyBiz acknowledges that
entities submitting resumes and job postings to TMP expect certain restrictions
and limitations to distribution of such submission, and MyBiz agrees that it
will not make any use of such submissions or capture any such submissions other
than in connection with the provision of the MyBizService as contemplated herein
without the consent of such entities. The parties agree to develop a privacy
policy for the Co-Branded Service which incorporates each of TMP's and MyBiz'
privacy policies. If there are any discrepancies between TMP's privacy policy
and MyBiz' privacy policy, the parties agree to negotiate in good faith to
resolve such discrepancies. The parties recognize that the disclosure or use of
a Disclosing Party's Confidential Information by the Receiving Party in
violation of the provisions of this section would cause irreparable injury to
the Disclosing Party; therefore, in the event either party breaches the
provisions of this section, the other party, in addition to any other remedies
it may have, shall be entitled to preliminary and permanent injunctive relief
without the necessity of posting a bond.
16 Information and Reports.
-----------------------
(a) TMP shall utilize all commercially reasonable efforts to provide
MyBiz quarterly reports regarding the usage of the links from Monster Talent
Market to the Co-Branded Service. The parties recognize and acknowledge,
however, that the characteristics of the Internet (including without limitation
caching or mirroring by third parties) may impede TMP's ability to gather
complete usage information.
(b) MyBiz shall generate for TMP monthly status reports, in
substantially the form attached hereto as Exhibit D, containing (i) data on
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persons who enroll in the Co-Branded Service through Monster Talent Market, to
the extent permitted by law, and (ii) aggregate data for all persons who enroll
in the Co-Branded Service through a link from the Monster Talent Market.
17 Auditing Rights. Each party shall maintain complete, clear and
---------------
accurate records of all revenues and fees in connection with the performance of
this Agreement. For the sole purpose of ensuring compliance with this Agreement
in addition to the auditing rights provided for in Section 4(a)(iii) and Section
6, each party will have the right, exercisable not more than once every twelve
months, to appoint an independent certified public accountant to conduct a
reasonable inspection of that portion of the books and records of the other
party which is relevant to the payment of amounts pursuant to this Agreement.
Any such audit may be conducted after 20 business days' prior written notice.
The party initiating the audit shall bear the expense of any audit conducted
pursuant to this Section 17 unless such audit shows an error in the other
party's favor in excess of five percent of the actual amounts paid or payable
hereunder, in which event the party being audited shall bear the reasonable
expenses of the audit. The party being audited shall pay the other party the
amount of any deficiency discovered by the audit within 30 days after receipt of
written notice thereof.
-17-
<PAGE>
18 Independent Contractor Status. The parties to this Agreement are
-----------------------------
independent contractors. Neither party is an agent, representative or employee
of the other party. Neither party will have any right, power or authority to
enter into any agreement for or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other party. This Agreement shall not
be interpreted or construed to create an association, agency, joint venture or
partnership between the parties or to impose any liability attributable to such
a relationship upon either party.
19 No Assignments This Agreement is in the nature of a contract for
--------------
personal services. Neither party shall assign or transfer its rights or
obligations under this Agreement (including without limitation assignments by
operation of law as a result of a merger or similar transaction) without the
prior written consent of the other party, which may be withheld for any reason
or for no reason; provided, however, that the restrictions in this Section 19
shall not prohibit assignments solely of the right to receive payments
hereunder. Any attempted assignment or transfer in violation of this Section 19
shall be void.
20 Representation, Warranties and Covenants.
----------------------------------------
(a) By MyBiz. MyBiz represents and warrants that: (i) the
--------
MyBizService and the mybizoffice.com trade names, trademarks and service marks
do not and will not infringe any intellectual property or other right of any
third party; (ii) it has all right and authority to enter into this Agreement
and to grant TMP the rights granted herein; and (iii) it is permitted by
applicable law and regulations to enter into this Agreement.
(b) MyBiz represents and warrants that none of the technologies used
by an Affiliated MyBiz Site or trade secret or other intellectual property
utilized by MyBiz or any Affiliated MyBiz Site will infringe on or violate any
patent, U.S. copyright, trademark or, to MyBiz's knowledge, any trade secret or
other proprietary right of any third party.
(c) MyBiz represents and warrants that (i) the MyBizService is and
will continue to be operated in compliance with all applicable laws, rules and
regulations and (ii) the performance of its obligations pursuant to this
Agreement is and will be in compliance with all applicable laws, rules and
regulations.
(d) MyBiz represents and warrants that it has, and will continue to
have for as long as TMP is entitled to receive payments under this Agreement,
procedures in place for collecting fees from users that are consistent with or
exceed industry standards and that it adheres and will continue to adhere to
such procedures in its collection process.
(e) MyBiz covenants that the Co-Branded Service shall be publicly
available to users a minimum of * of the time during any 30 day period; and
there will be no period of interruption in public accessibility to the Co-
Branded Site that exceeds * continuous hours on more than one occasion
within a sixty (60) day period; provided, however, that the covenant set forth
in this Section 20(e) shall not apply to unavailability resulting from events
outside of MyBiz's reasonable control, provided MyBiz is complying with Section
23.
*Confidential portions have been omitted and filed separately with the
Commission.
-18-
<PAGE>
(f) By TMP. TMP represents and warrants that: (i) the Monster Talent
------
Market technologies, trade names, trademarks and service marks do not and will
not infringe any intellectual property or other right of any third party; (ii)
it has all right and authority to enter into this Agreement and to grant MyBiz
the rights granted herein; (iii) it is permitted by applicable law and
regulations to enter into this Agreement.
(g) TMP represents and warrants that no technology or trade secret or
other intellectual property provided by TMP and utilized by Monster Talent
Market will infringe on or violate any patent, U.S. copyright, trademark or, to
TMP's knowledge, any trade secret or other proprietary right of any third party.
(h) TMP represents and warrants that (i) Monster Talent Market is and
will continue to be operated in compliance with all applicable laws, rules,
regulations and (ii) the performance of its obligations pursuant to this
Agreement is and will be in compliance with all applicable laws, rules and
regulations.
21 Intentionally Omitted
22. Miscellaneous. Notices delivered under this Agreement may be
-------------
given by letter, facsimile or e-mail (with hard copy confirmation) and will be
effective when received. This Agreement contains the entire understanding of
the parties with respect to the transactions and matters contemplated hereby,
supersedes all previous communications, understandings and agreements (whether
oral or written), and cannot be amended or waived except by a writing signed by
both parties. No failure or delay on the part of either party in exercising any
right or remedy provided in this Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of or failure to exercise any such
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy under this Agreement. This Agreement shall be
construed in accordance with the domestic laws of the State of New York. This
Agreement may be executed in counterparts and by facsimile.
23. Excuse. Neither party shall be liable for, or be considered in
------
breach of or default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or conditions
which are beyond such party's reasonable control and which such party is unable
to overcome by the exercise of reasonable diligence.
-19-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representative.
CONTRACTORS RESOURCES, INC. TMP INTERACTIVE INC.
By: /s/ Gene Zaino By: /s/ Linda Natansohn
---------------- -------------------
Typed Name: Gene Zaino Typed Name: Linda Natansohn
Title: Chairman and CEO Title: SVP Ventures
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-20-
<PAGE>
The Netplex Group, Inc. agrees to guarantee the obligations of MyBiz
hereunder; provided, however, that this obligation shall terminate upon the
initial public offering of MyBiz securities which results in such securities
being listed on the New York Stock Exchange, the Nasdaq National Market or the
Nasdaq Small Cap Market or any other national securities exchange. In addition,
Netplex's obligations hereunder shall terminate upon the initial public offering
of MyBiz securities which results in such securities being listed on the New
York Stock Exchange, the Nasdaq National Market or the Nasdaq Small Cap Market.
THE NETPLEX GROUP, INC.
By: /s/ Gene Zaino
-------------------
Typed Name: Gene Zaino
Title: Chairman and CEO
-21-
<PAGE>
Exhibit A
TMP Carriage Plan
-----------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Impressions Y1 Impressions Y2 Total Impressions
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Monster Talent * * *
Market placements
- --------------------------------------------------------------------------------------------------
Monster.com * * *
placements
- --------------------------------------------------------------------------------------------------
Total * * *
- --------------------------------------------------------------------------------------------------
</TABLE>
TMP shall review with MyBiz at least quarterly the locations of such
Impressions.
TMP reserves the right to redesign or modify the organization, structure, "look
and feel", navigation and other elements of Monster.com at any time. In the
event such modifications materially and adversely affect any specific promotion
undertaken by TMP in accordance with this Carriage Plan, TMP will work with
MyBiz to provide the Co-Branded Service a promotional placement of comparable
overall value.
* Confidential portions have been omitted and filed separately with the
Commission.
-22-
<PAGE>
Exhibit B
Performance Criteria/Operating Standards
----------------------------------------
Infrastructure
* will be responsible for all * associated with the Co-Branded
Service.
Speed
MyBiz will use commercially reasonable efforts to ensure that the Co-Branded
Service is designed and populated in a manner that minimizes delays when Monster
Users attempt to access the Co-Branded Service. At a minimum, * .
User Interface
MyBiz will maintain a graphical user interface within the Co-Branded Service
that is competitive in all material respects with the interfaces of other
similar sites based on similar form technology. TMP reserves the right to review
and approve the user interface and site design prior to launch of the
promotions.
Technical Problems
MyBiz agrees to use commercially reasonable efforts to address material
technical problems (over which MyBiz exercises control) affecting use by
Monster.com and Monster Talent Market members using the Co-Branded Service.
Monitoring
* will ensure that the performance and availability of the Co-Branded
Service is monitored on a continuous basis. * .
Telecommunications
Where applicable, MyBiz will utilize encryption methodology to secure data
communications between the parties' data centers.
Security
MyBiz will utilize agreed upon Internet standard encryption technologies to
provide a secure environment for conducting transactions and/or transferring
private member information.
Ability
* . These efforts should include * . In the event that users of the
Co-Branded Service * . * prepared by MyBiz * to assist in
determining success in this area. In principle, it is the mutual intention of
the parties to make * .
* Confidential portions have been omitted and filed separately with the
Commission.
-23-
<PAGE>
Scalability to meet targeted growth
MyBiz will make all appropriate provisions to manage, at a minimum, the growth
in traffic and customers targeted in the Agreement in terms of, but not limited
to, technology infrastructure and customer service.
-24-
<PAGE>
Exhibit C
Form of Common Stock Purchase Warrants
--------------------------------------
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON MAY 2, 2003, OR IF NOT A BUSINESS DAY,
AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK TIME, ON THE NEXT FOLLOWING BUSINESS
DAY.
WARRANT TO PURCHASE
1,000,000
SHARES OF COMMON STOCK
OF
THE NETPLEX GROUP, INC.
No. W-1
This certifies that, for value received, TMP Interactive, Inc. and its
registered assigns (collectively, the "Warrantholder"), is entitled to purchase
from The Netplex Group, Inc., a corporation incorporated under the laws of the
State of New York (the "Company"), subject to the terms and conditions hereof,
at any time on or after the date hereof and before 5:00 p.m., New York time on
May 2, 2003 (or, if such day is not a Business Day, at or before 5:00 p.m., New
York time, on the next following Business Day), up to 1,000,000 fully paid and
nonassessable shares of Common Stock of the Company at the Exercise Price (as
defined herein). The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as provided in Article 3
hereof.
-25-
<PAGE>
ARTICLE 1
DEFINITION OF TERMS
As used in this Warrant, the following capitalized terms shall have the
following respective meanings:
(a) Business Day: A day other than a Saturday, Sunday or other day on
------------
which banks in the State of New York are authorized by law to remain closed.
(b) Common Stock: Common Stock, par value $.001 per share, of the Company.
------------
(c) Common Stock Equivalents: Securities that are convertible into or
------------------------
exercisable for shares of Common Stock.
(c) Co-Branding Agreement: That certain Co-Branded Services Agreement,
---------------------
dated the date hereof, among TMP Interactive, Inc., The Netplex Group, Inc. and
Contractors Resources, Inc.
(d) Demand Registration: See Section 6.2.
-------------------
(e) Exchange Act: The Securities Exchange Act of 1934, as amended.
------------
(f) Exercise Price: $6.00 per Warrant Share, as such price may be adjusted
--------------
from time to time pursuant to Article 3 hereof.
(g) Expiration Date: 5:00 p.m., New York time, on May 2, 2003, or if such
---------------
day is not a Business Day, the next succeeding day which is a Business Day.
(h) Holder: A Holder of Registrable Securities.
------
(i) NASD: National Association of Securities Dealers, Inc.
----
(j) Person: An individual, partnership, joint venture, corporation, trust,
------
unincorporated organization or government or any department or agency thereof.
(k) Piggyback Registration: See Section 6.1.
----------------------
(l) Prospectus: Any prospectus included in any Registration Statement, as
----------
amended or supplemented by any prospectus supplement, or to which a Term Sheet
(as defined in Rule 434 under the Securities Act) relates, with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments and all materials incorporated
by reference in such Prospectus.
-26-
<PAGE>
(m) Public Offering: A public offering of any of the Company's equity or
---------------
debt securities pursuant to Registration Statement under the Securities Act.
(n) Registrable Securities: Any Warrant Shares issued to TMP Interactive,
----------------------
Inc. and/or its designees or transferees and/or other securities that may be or
are issued by the Company upon exercise of the Warrants, including those which
may thereafter be issued by the Company in respect of any such securities by
means of any stock splits, stock dividends, recapitalizations, reclassifications
or the like, and as adjusted pursuant to Article 3 hereof; provided, however,
that as to any particular security contained in Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such Registration Statement; or (ii) they shall have been
sold to the public pursuant to Rule 144(k) (or any successor provision) under
the Securities Act.
(o) Registration Expenses: Any and all expenses incurred in connection
---------------------
with any registration or action incident to performance of or compliance by the
Company with Article 6, including, without limitation, (i) all SEC, national
securities exchange and NASD registration and filing fees; all listing fees and
all transfer agent fees; (ii) all fees and expenses of complying with state
securities or blue sky laws (including the fees and disbursements of counsel of
the underwriters in connection with blue sky qualifications of the Registrable
Securities); (iii) all printing, mailing, messenger and delivery expenses; (iv)
all fees and disbursements of counsel for the Company and of its accountants,
including the expenses of any special audits and/or "cold comfort" letters
required by or incident to such performance and compliance; and (v) any
disbursements of underwriters customarily paid by issuers or sellers of
securities including the reasonable fees and expenses of any special experts
retained by the underwriters in connection with the requested registration, but
excluding underwriting discounts and commissions, brokerage fees and transfer
taxes, if any, and fees of counsel or accountants retained by the holders of
Registrable Securities to advise them in their capacity as Holders of
Registrable Securities.
(s) Registration Statement: Any registration statement of the Company
----------------------
filed or to be filed with the SEC which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including all amendments
(including post-effective amendments) and supplements thereto, all exhibits
thereto and all material incorporated therein by reference.
(t) SEC: The Securities and Exchange Commission or any other federal
---
agency at the time administering the Securities Act and the Exchange Act.
(u) Securities Act: The Securities Act of 1933, as amended.
--------------
(v) 25% Holders: At any time as to which a Demand Registration is
-----------
requested, the Holder and/or the holders of any other Warrants and/or the
holders of Warrant Shares who have the right to acquire or hold, as the case may
be, not less than 25% of the combined total of Warrant Shares issuable and
Warrant Shares outstanding (other than Warrant Shares which are no longer
Registrable Securities by reason of the proviso to the definition of the term
"Registrable Securities")
-27-
<PAGE>
at the time such Demand Registration is requested.
(w) Warrant Shares: Common Stock, Common Stock Equivalents and other
--------------
securities purchased or purchasable upon exercise or conversion of the Warrants.
(x) Warrantholder: The person(s) or entity(ies) to whom this Warrant is
-------------
originally issued, or any successor in interest thereto, or any assignee or
transferee thereof, in whose name this Warrant is registered upon the books to
be maintained by the Company for that purpose.
(y) Warrants: This Warrant and all other warrants that may be issued in
--------
its place (together evidencing the right to purchase an aggregate of up to
1,000,000 shares of Common Stock), originally issued as set forth in the
definition of Registrable Securities.
ARTICLE 2
DURATION AND EXERCISE OF WARRANT
2.1 Duration of Warrant
The Warrantholder may exercise this Warrant at any time and from time to
time after 9:00 a.m., New York time, on the date hereof and before 5:00 p.m.,
New York time, on the Expiration Date. If this Warrant is not exercised on the
Expiration Date, it shall become void, and all rights hereunder shall thereupon
cease.
2.2 Method of Exercise
(a) The Warrantholder may exercise this Warrant, in whole or in part,
by presentation and surrender of this Warrant to the Company at its corporate
office at 1800 Robert Fulton Drive, Suite 250, Reston, Virginia 29191-9992, or
at the office of its stock transfer agent, if any, with the Exercise Form
annexed hereto duly executed, accompanied by payment of the full Exercise Price
for each Warrant Share to be purchased in accordance with Section 2.3(a).
(b) Upon receipt of this Warrant with the Exercise Form fully
executed and accompanied by payment of the aggregate Exercise Price for the
Warrant Shares for which this Warrant is then being exercised, the Company shall
cause to be issued certificates for the total number of whole shares of Common
Stock for which this Warrant is being exercised in accordance with Section
2.3(a) (adjusted to reflect the effect of the anti-dilution provisions contained
in Article 3 hereof, if any, and as provided in Section 2.4 hereof) in such
denominations as are requested for delivery to the Warrantholder, and the
Company shall thereupon deliver such certificates to the Warrantholder. The
Warrantholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise as of the time of receipt of the Exercise Form
and payment in accordance with the preceding sentence, in the case of an
exercise for cash pursuant to Section 2.3(a), notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered
-28-
<PAGE>
to the Warrantholder. If at the time this Warrant is exercised, a Registration
Statement is not in effect to register under the Securities Act the Warrant
Shares issuable upon exercise of this Warrant, the Company may, prior to the
satisfaction of any holding period required by Rule 144 promulgated under the
Securities Act, require the Warrantholder to make such representations, and may
place the legends on certificates representing the Warrant Shares, as may be
reasonably required in the opinion of counsel to the Company to permit the
Warrant Shares to be issued without such registration.
(c) In case the Warrantholder shall exercise this Warrant with
respect to less than all of the Warrant Shares that may be purchased under this
Warrant, the Company shall execute as of the exercise date a new warrant in the
form of this Warrant for the balance of such Warrant Shares and deliver such new
warrant to the Warrantholder within 10 days following the exercise date (or, if
later, the Net Issuance Exercise Date).
(d) The Company shall pay any and all stock transfer and similar
taxes which may be payable in respect of the issuance of any Warrant Shares.
2.3 Exercise of Warrant
(a) Right to Exercise for Cash. This Warrant may be exercised by the
--------------------------
Holder by delivery of payment to the Company, for the account of the Company, by
cash, by certified or bank cashier's check or by wire transfer, of the Exercise
Price for the number of Warrant Shares specified in the Exercise Form in lawful
money of the United States of America.
2.4 Reservation of Shares
The Company hereby agrees that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant such number of shares of
Common Stock or other shares of capital stock of the Company from time to time
issuable upon exercise of this Warrant. All such shares shall be duly
authorized, and when issued upon such exercise, shall be validly issued, fully
paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale (except as contemplated
by Sections 2.2(b) and 5.2) and free and clear of all preemptive and other
similar rights.
2.5 Fractional Shares
The Company shall not be required to issue any fraction of a share of its
capital stock in connection with the exercise of this Warrant, and in any case
where the Warrantholder would, except for the provisions of this Section 2.5, be
entitled under the terms of this Warrant to receive a fraction of a share upon
the exercise of this Warrant, the Company shall, upon the exercise of this
Warrant, pay to the Warrantholder an amount in cash equal to the fair market
value of such fractional share as of the exercise date.
2.6 Listing
-29-
<PAGE>
Prior to the issuance of any shares of Common Stock upon exercise of this
Warrant, the Company shall use its best efforts to secure the listing of such
shares of Common Stock upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance upon exercise of this Warrant) and shall
maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all shares of Common Stock from time to time issuable upon the
exercise of this Warrant; and the Company shall use its best efforts to so list
on each national securities exchange or automated quotation system, and shall
maintain such listing of, any other shares of capital stock of the Company
issuable upon the exercise of this Warrant if and so long as any shares of the
same class shall be listed on such national securities exchange or automated
quotation system.
ARTICLE 3
ADJUSTMENT OF SHARES OF COMMON STOCK
PURCHASABLE AND OF EXERCISE PRICE
The Exercise Price and the number and kind of Warrant Shares shall be
subject to adjustment from time to time upon the happening of certain events as
provided in this Article 3.
3.1 Mechanical Adjustments
(a) If at any time prior the exercise of this Warrant in full, the
Company shall (i) declare a dividend or make a distribution on the Common Stock
payable in shares of its capital stock (whether shares of Common Stock or of
capital stock of any other class); (ii) subdivide, reclassify or recapitalize
its outstanding Common Stock into a greater number of shares; (iii) combine,
reclassify or recapitalize its outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of its
Common Stock (including any such reclassification in connection with a
consolidation or a merger in which the Company is the continuing corporation),
the number of Warrant Shares issuable upon exercise of the Warrant and/or the
Exercise Price in effect at the time of the record date of such dividend,
distribution, subdivision, combination, reclassification or recapitalization
shall be adjusted so that the Warrantholder shall be entitled to receive the
aggregate number and kind of shares which, if this Warrant had been exercised in
full immediately prior to such event, the Warrantholder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, combination, reclassification or recapitalization.
Any adjustment required by this Section 3.1(a) shall be made successively
immediately after the record date, in the case of a dividend or distribution, or
the effective date, in the case of a subdivision, combination, reclassification
or recapitalization, to allow the purchase of such aggregate number and kind of
shares.
(b) If any time prior to the exercise of this Warrant in full, the
Company shall fix a record date for the issuance or making of a distribution to
all holders of the Common Stock (including any such distribution to be made in
connection with a consolidation or merger in which the Company is to be the
continuing corporation) of evidences of its indebtedness, any other
-30-
<PAGE>
securities of the Company or any cash, property or other assets (excluding a
combination, reclassification or recapitalization referred to in Section 3.1(a),
regular cash dividends or cash distributions paid out of net profits legally
available therefor and in the ordinary course of business if the full amount
thereof, together with the value of other dividends and distributions made
substantially concurrently therewith or pursuant to a plan which includes
payment thereof, is equivalent to not more than 5% of the Company's net worth,
or subscription rights, options or warrants for Common Stock or Common Stock
Equivalents (excluding those referred to in Section 3.1(b)) (any such
nonexcluded event being herein called a "Special Dividend")), the Exercise Price
shall be decreased immediately after the record date for such Special Dividend
to a price determined by multiplying the Exercise Price then in effect by a
fraction, the numerator of which shall be the then current market price of the
Common Stock (as defined in Section 3.1(e)) on such record date less the fair
market value (as determined by the Company's Board of Directors) of the
evidences of indebtedness, securities or property, or other assets issued or
distributed in such Special Dividend applicable to one share of Common Stock or
of such subscription rights or warrants applicable to one share of Common Stock
and the denominator of which shall be the then current market price per share of
Common Stock (as so determined). Any adjustments required by this Section 3.1(b)
shall be made successively whenever such a record date is fixed and in the event
that such distribution is not so made, the Exercise Price shall again be
adjusted to be the Exercise Price that was in effect immediately prior to such
record date.
(c) If at any time prior to the exercise of this Warrant in full, the
Company shall make a distribution to all holders of the Common Stock of stock of
a subsidiary or securities convertible into or exercisable for such stock, then
in lieu of an adjustment in the Exercise Price or the number of Warrant Shares
purchasable upon the exercise of this Warrant, each Warrantholder, upon the
exercise hereof at any time after such distribution, shall be entitled to
receive from the Company, such subsidiary or both, as the Company shall
determine, the stock or other securities to which such Warrantholder would have
been entitled if such Warrantholder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in this Article 3, and
the Company shall reserve, for the life of the Warrant, such securities of such
subsidiary or other corporation; provided, however, that no adjustment in
respect of dividends or interest on such stock or other securities shall be made
during the term of this Warrant or upon its exercise.
(d) Whenever the Exercise Price payable upon exercise of each Warrant
is adjusted pursuant to one or more of paragraphs (a) and (b) of this Section
3.1, the Warrant Shares shall simultaneously be adjusted by multiplying the
number of Warrant Shares initially issuable upon exercise of each Warrant by the
Exercise Price in effect on the date thereof and dividing the product so
obtained by the Exercise Price, as adjusted.
(e) For the purpose of any computation under this Section 3.1, the
current market price per share of Common Stock at any date shall be deemed to be
the average of the daily closing prices for 20 consecutive trading days
commencing 30 trading days before such date. The closing price for each day
shall be the last sale price regular way or, in case no such reported sales take
place on such day, the average of the last reported bid and asked prices regular
way, in either case on the principal national securities exchange on which the
Common Stock is admitted to trading or listed,
-31-
<PAGE>
or if not listed or admitted to trading on such exchange, the representative
closing bid price as reported by Nasdaq, or other similar organization if Nasdaq
is no longer reporting such information, or if not so available, the fair market
price as determined in good faith by the Board of Directors of the Company.
(f) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least five cents ($.05)
in such price; provided, however, that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
3.1 shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Notwithstanding anything in this Section 3.1 to the
contrary, the Exercise Price shall not be reduced to less than the then existing
par value of the Common Stock as a result of any adjustment made hereunder.
(g) In the event that at any time, as a result of any adjustment made
pursuant to Section 3.1(a), the Warrantholder thereafter shall become entitled
to receive any shares of the Company other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Stock
contained in this Section 3.1.
(h) In case any event shall occur as to which the other provisions of
this Article 3 are not strictly applicable but as to which the failure to make
any adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles hereof then, in
each such case, the Warrantholders representing the right to purchase a majority
of the Warrant Shares subject to all outstanding Warrants may appoint a firm of
independent public accountants of recognized national standing reasonably
acceptable to the Company, which shall give their opinion as to the adjustment,
if any, on a basis consistent with the essential intent and principles
established herein, necessary to preserve the purchase rights represented by the
Warrants. Upon receipt of such opinion, the Company will promptly mail a copy
thereof to the Warrantholder and shall make the adjustments described therein.
The fees and expenses of such independent public accountants shall be borne by
the Company.
(i) If, as a result of an adjustment made pursuant to this Article 3,
the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Exercise Price between or among shares
or such classes of capital stock or shares of Common Stock and other capital
stock.
3.2 Notices of Adjustment
Whenever the number of Warrant Shares or the Exercise Price is adjusted as
herein provided,
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the Company shall prepare and deliver forthwith to the Warrantholder a
certificate signed by its President, and by any Vice President, Treasurer or
Secretary, setting forth the adjusted number of shares purchasable upon the
exercise of this Warrant and the Exercise Price of such shares after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which adjustment was made.
3.3 No Adjustment for Dividends
Except as provided in Section 3.1 of this Agreement, no adjustment in
respect of any cash dividends shall be made during the term of this Warrant or
upon the exercise of this Warrant.
3.4 Preservation of Purchase Rights in Certain Transactions
In case of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in the par value of the
Common Stock) or in case of any consolidation or merger of the Company with or
into another corporation (other than merger with a subsidiary in which the
Company is the continuing corporation and that does not result in any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the class issuable upon exercise of this Warrant) or in the
case of any sale, lease, transfer or conveyance to another corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, the Holder of this Warrant shall have the right thereafter to receive
on the exercise of this Warrant the kind and amount of securities, cash or other
property which the Holder would have owned or have been entitled to receive
immediately after such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Article 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Article 3 shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable on the exercise of
this Warrant. The provisions of this Section 3.4 shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of any shares of stock or
other securities or property thereafter deliverable on the exercise of this
Warrant shall be responsible for all of the agreements and obligations of the
Company hereunder. Notice of any such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance and of said
provisions so proposed to be made, shall be mailed to the Holders of the
Warrants not less than 30 days prior to such event. A sale of all or
substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
3.5 Form of Warrant After Adjustments
The form of this Warrant need not be changed because of any adjustments in
the Exercise
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Price or the number or kind of the Warrant Shares, and Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in this Warrant, as initially issued.
3.6 Treatment of Warrantholder
Prior to due presentment for registration of transfer of this Warrant, the
Company may deem and treat the Warrantholder as the absolute owner of this
Warrant (notwithstanding any notation of ownership or other writing hereon) for
all purposes and shall not be affected by any notice to the contrary.
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDER
4.1 No Rights as Shareholders; Notice to Warrantholders
Nothing contained in this Warrant shall be construed as conferring upon the
Warrantholder or his or its transferees the right to vote or to receive
dividends or to consent or to receive notice as a shareholder in respect of any
meeting of shareholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as shareholders of the Company. The
Company shall give notice to the Warrantholder by registered mail if at any time
prior to the expiration or exercise in full of the Warrants, any of the
following events shall occur:
(a) the Company shall authorize the payment of any dividend payable
in any securities upon shares of Common Stock or authorize the making of
any distribution (other than a cash dividend subject to the parenthetical
set forth in Section 3.1(b)) to all holders of Common Stock;
(b) the Company shall authorize the issuance to all holders of Common
Stock of any additional shares of Common Stock or Common Stock Equivalents
or of rights, options or warrants to subscribe for or purchase Common Stock
or Common Stock Equivalents or of any other subscription rights, options or
warrants (other than Common Stock or Common Stock Equivalents or of rights,
options or warrants to subscribe for or purchase Common Stock or Common
Stock Equivalents or of any other subscription rights, options or warrants
subject to the parenthetical set forth in Section 3.1(b));
(c) a dissolution, liquidation or winding up of the Company shall be
proposed; or
(d) a capital reorganization or reclassification of the Common Stock
(other than a subdivision or combination of the outstanding Common Stock
and other than a change in the par value of the Common Stock) or any
consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is
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the continuing corporation and that does not result in any reclassification
or change of Common Stock outstanding) or in the case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety.
Such giving of notice shall be initiated (i) at least 10 Business Days
prior to the date fixed as a record date or effective date or the date of
closing of the Company's stock transfer books for the determination of the
shareholders entitled to such dividend, distribution or subscription rights, or
for the determination of the shareholders entitled to vote on such proposed
merger, consolidation, sale, conveyance, dissolution, liquidation or winding up.
Such notice shall specify such record date or the date of closing the stock
transfer books, as the case may be. Failure to provide such notice shall not
affect the validity of any action taken in connection with such dividend,
distribution or subscription rights, or proposed merger, consolidation, sale,
conveyance, dissolution, liquidation or winding up.
4.2 Lost, Stolen, Mutilated or Destroyed Warrants
If this Warrant is lost, stolen, mutilated or destroyed, the Company may,
on such terms as to indemnity or otherwise as it may in its reasonable judgment
impose (which shall include reasonable costs and expenses and, in the case of a
mutilated Warrant, including the surrender thereof), issue a new Warrant of like
denomination and tenor as, and in substitution for, this Warrant.
ARTICLE 5
SPLIT-UP, COMBINATION, EXCHANGE AND
TRANSFER OF WARRANTS AND WARRANT SHARES
5.1 Split-Up, Combination and Exchange of Warrants
This Warrant may be split up, combined or exchanged for another Warrant or
Warrants containing the same terms to purchase a like aggregate number of
Warrant Shares. If the Warrantholder desires to split up, combine or exchange
this Warrant, he or it shall make such request in writing delivered to the
Company and shall surrender to the Company this Warrant and any other Warrants
to be so split-up, combined or exchanged. Upon any such surrender for a split-
up, combination or exchange, the Company shall execute and deliver to the person
entitled thereto a Warrant or Warrants, as the case may be, as so requested.
The Company shall not be required to effect any split-up, combination or
exchange which will result in the issuance of a Warrant entitling the
Warrantholder to purchase upon exercise a fraction of a share of Common Stock or
a fractional Warrant. The Company may require such Warrantholder to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any split-up, combination or exchange of Warrants.
5.2 Restrictions on Transfer, Restrictive Legends
Except as otherwise permitted by this Section 5.2, each Warrant shall (and
each Warrant
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issued upon direct or indirect transfer or in substitution for any Warrant
issued pursuant to Section 5.1 shall) be stamped or otherwise imprinted with a
legend in substantially the following form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
Except as otherwise permitted by this Section 5.2, each stock certificate
for Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a Warrant or a stock certificate for Warrant Shares, in each case without
a legend, if (i) the issuance of such Warrant Shares has been registered under
the Securities Act and any applicable state securities laws, (ii) such Warrant
or such Warrant Shares, as the case may be, have been registered for resale
under the Securities Act or sold pursuant to Rule 144 under the Securities Act
(or a successor thereto) or (iii) the Warrantholder has received an opinion of
counsel (who may be house counsel for such Warrantholder) reasonably
satisfactory to the Company that such registration is not required with respect
to such Warrant or such Warrant Shares, as the case may be.
ARTICLE 6
REGISTRATION UNDER THE SECURITIES ACT OF 1933
6.1 Piggyback Registration
(a) Right to Include Registrable Securities. If at any time or from
---------------------------------------
time to time prior to the second anniversary of the Expiration Date, the Company
proposes to register any of its securities under the Securities Act on any form
for the registration of securities under such Act, whether or not for its own
account (other than by a registration statement on Form S-8 or other form
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which does not include substantially the same information as would be required
in a form for the general registration of securities or would not be available
for the Registrable Securities) (a "Piggyback Registration"), it shall as
expeditiously as possible give written notice to all Holders of its intention to
do so and of such Holders' rights under this Section 6.1. Such rights are
referred to hereinafter as "Piggyback Registration Rights." Upon the written
request of any such Holder made within 10 days after receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Holder), the Company shall include in the Registration Statement the
Registrable Securities which the Company has been so requested to register by
the Holders thereof and the Company shall use its reasonable best efforts to
keep such registration statement in effect and maintain compliance with each
federal and state law or regulation for the period necessary for such Holder to
effect the proposed sale or other disposition (but in no event for a period
greater than 90 days); provided that the Company shall not be in breach of its
obligations hereunder or otherwise responsible for any failure to keep such
registration statement in effect caused by any act or omission of a Holder.
(b) Withdrawal of Piggyback Registration by Company. If, at any time
-----------------------------------------------
after giving written notice of its intention to register any securities in a
Piggyback Registration but prior to the effective date of the related
Registration Statement, the Company shall determine for any reason not to
register such securities, the Company shall give notice of such determination to
each Holder and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such Piggyback Registration. All best
efforts obligations of the Company pursuant to Section 6.4 shall cease if the
Company determines to terminate prior to such effective date any registration
where Registrable Securities are being registered pursuant to this Section 6.1.
(c) Piggyback Registration of Underwritten Public Offering. If a
------------------------------------------------------
Piggyback Registration involves an offering by or through underwriters, then (i)
all Holders requesting to have their Registrable Securities included in the
Company's Registration Statement must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to other selling shareholders and (ii) any Holder requesting to have his or its
Registrable Securities included in such Registration Statement may elect in
writing, not later than three Business Days prior to the effectiveness of the
Registration Statement filed in connection with such registration, not to have
his or its Registrable Securities so included in connection with such
registration.
(d) Payment of Registration Expenses for Piggyback Registration. The
-----------------------------------------------------------
Company shall pay all Registration Expenses in connection with each registration
of Registrable Securities requested pursuant to a Piggyback Registration Right
contained in this Section 6.1.
(e) Priority in Piggyback Registration. If a Piggyback Registration
----------------------------------
involves an offering by or through underwriters, the Company, except as
otherwise provided herein, shall not be required to include Registrable Shares
therein if and to the extent the underwriter managing the offering reasonably
believes in good faith and advises the Company (which shall promptly notify the
Holder) that such inclusion would materially adversely affect such offering;
provided that (i) if other selling shareholders without contractual registration
rights have requested registration of
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securities in the proposed offering, the Company will reduce or eliminate such
securities held by selling shareholders without registration rights before any
reduction or elimination of Registrable Securities; and (ii) any such reduction
or elimination (after taking into account the effect of clause (i)) shall be pro
rata to all other selling shareholders with contractual registration rights.
6.2 Demand Registration
(a) Request for Registration. If, at any time prior to the Expiration
------------------------
Date, any 25% Holders request that the Company file a registration statement
under the Securities Act, as soon as practicable thereafter the Company shall
use its best efforts to file a registration statement with respect to all
Warrant Shares that it has been so requested to include and obtain the
effectiveness thereof, and to take all other action necessary under federal or
state law or regulation to permit the Warrant Shares that are held and/or that
may be acquired upon the exercise of the Warrants specified in the notices of
the Holders or holders hereof to be sold or otherwise disposed of, and the
Company shall maintain such compliance with each such federal and state law and
regulation for the period necessary for such Holders or Holders to effect the
proposed sale or other disposition; provided, however, the Company shall be
entitled to defer such registration for a period of up to 60 days if and to the
extent that its Board of Directors shall in good faith determine that such
registration would require disclosure of information not otherwise then required
to be disclosed and that such disclosure would adversely affect any material
business situation, transaction or negotiation then proposed, contemplated or
being engaged in by the Company. The Company shall also promptly give written
notice to the Holders and the holders of any other Warrants and/or the holders
of any Warrant Shares who or that have not made a request to the Company
pursuant to the provisions of this Section 6.2(a) of its intention to effect any
required registration or qualification, and shall use its best efforts to effect
as expeditiously as possible such registration or qualification of all such
other Warrant Shares that are then held and/or that may be acquired upon the
exercise of the Warrants, the Holder or holders of which have requested such
registration or qualification, within 15 days after such notice has been given
by the Company, as provided in the preceding sentence. The Company shall be
required to effect a registration or qualification pursuant to this Section
6.2(a) on one occasion only.
(b) Payment of Registration Expenses for Demand Registration. The
--------------------------------------------------------
Company shall pay all Registration Expenses in connection with the Demand
Registration.
(c) Selection of Underwriters. If any Demand Registration is
-------------------------
requested to be in the form of an underwritten offering, the managing
underwriter shall be selected and obtained by the Holders of a majority of the
Warrant Shares to be registered. Such selection shall be subject to the
Company's consent, which consent shall not be unreasonably withheld.
(d) Procedure for Requesting Demand Registration. Any request for a
--------------------------------------------
Demand Registration shall specify the aggregate number of the Registrable
Securities proposed to be sold and the intended method of disposition. Within
10 days after receipt of such a request the Company will give written notice of
such registration request to all Holders, and, subject to the limitations of
Section 6.2(b), the Company will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 Business Days
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after the date on which such notice is given. Each such request shall also
specify the aggregate number of Registrable Securities to be registered and the
intended method of disposition thereof.
6.3 Buy-Outs of Registration Demand
In lieu of carrying out its obligations to effect a Piggyback Registration
or Demand Registration of any Registrable Securities pursuant to this Article 6,
the Company may carry out such obligation by offering to purchase and purchasing
such Registrable Securities requested to be registered in an amount in cash
equal to the difference between (a) 95% of the last sale price of the Common
Stock on the day the request for registration is made and (b) the Exercise Price
in effect on such day; provided, however, that the Holder or Holders may
withdraw such request for registration rather than accept such offer by the
Company.
6.4 Registration Procedures
If and whenever the Company is required to use its best efforts to take
action pursuant to any Federal or state law or regulation to permit the sale or
other disposition of any Registrable Securities that are then held or that may
be acquired upon exercise of the Warrants in order to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Article 6, the Company shall, as expeditiously as practicable, use its
best efforts to:
(a) prepare and file with the SEC, as soon as practicable within 60
days after the end of the period within which requests for registration may be
given to the Company (but subject to the provision for deferral contained in
Section 6.2(a) hereof) a Registration Statement or Registration Statements
relating to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause such Registration Statements to become effective;
provided that before filing a Registration Statement or Prospectus or any
amendment or supplements thereto, including documents incorporated by reference
after the initial filing of any Registration Statement, the Company will furnish
to the Holders of the Registrable Securities covered by such Registration
Statement and the underwriters, if any, copies of all such documents proposed to
be filed, which documents will be subject to the review of such Holders and
underwriters; provided, that the Company shall not be in breach of its
obligations hereunder or otherwise responsible for any failure to keep such
registration statement in effect caused by any act or omission of a Holder;
(b) prepare and file with the SEC such amendments and post-effective
amendments to a Registration Statement as may be necessary to keep such
Registration Statement effective for 180 days if the offering is not
underwritten, provided, that such 180 day period shall be extended by the number
of days a Prospectus is not available pursuant to Section 6.4(k) because of the
occurrence of an event set forth in Section 6.4(c)(vi); provided, that the
Company shall not be in breach of its obligations hereunder or otherwise
responsible for any failure to keep such registration statement in effect caused
by any act or omission of a Holder; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
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be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to such Prospectus;
(c) notify the selling Holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related Prospectus or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose; (iv) if at any time the representations and warranties of the Company
contemplated by paragraph (m) below ceases to be true and correct in all
material respects; (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes; and (vi) of the happening of any event that makes
any statement of a material fact made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading:
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment (subject to Section 6.4(a));
(e) if reasonably requested by the managing underwriters, immediately
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters believe (on advice of counsel) should
be included therein as required by applicable law relating to such sale of
Registrable Securities, including, without limitation, information with respect
to the purchase price being paid for the Registrable Securities by such
underwriters and with respect to any other terms of the underwritten (or "best-
efforts" underwritten) offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(f) furnish to each selling Holder of Registrable Securities and each
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary
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prospectus) any amendment or supplement thereto as such Persons may reasonably
request; the Company consents to the use of such Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto;
(h) prior to any public offering of Registrable Securities, cooperate
with the selling Holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or underwriter reasonably requests in writing, keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration Statement;
provided that the Company will not be required to (i) qualify to do business in
any jurisdiction where it not then so qualified or (ii) to take any action which
would subject the Company to (a) general service of process in any jurisdiction
where it is not at the time so subject, or (b) taxation by any jurisdiction
where it is not at the time so subject;
(i) cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends to the extent permitted by applicable law and
regulation; and enable such Registrable Securities to be in such denominations
and registered in such names as the managing underwriters may request at least
two Business Days prior to any sale of Registrable Securities to the
underwriters;
(j) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities within the United States as may
be necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section
6.4(c)(vi) above, prepare a supplement or post-effective amendment to the
applicable Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(l) with respect to each issue or class of Registrable Securities,
use its best efforts to cause all Registrable Securities covered by the
Registration Statements to be listed on each securities exchange or automated
quotation system, if any, on which similar securities issued by the Company are
then listed if requested by the Holders of a majority of such issue or class of
Registrable Securities;
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(m) enter into such agreements (including an underwriting agreement)
and take all such other action reasonably required in connection therewith in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection, if the registration is in connection with an
underwritten offering (i) make such representations and warranties to the
underwriters (or the Holders of the Registrable Securities if such offering is
not underwritten), in such form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions in form, scope and substance shall be
reasonably satisfactory to the underwriters) addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters; (iii) obtain "cold comfort" letters and updates thereof from the
Company's accountants addressed to the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with underwritten offerings; (iv)
set forth in full in any underwriting agreement entered into the indemnification
provisions and procedures of Section 6.5 hereof with respect to all parties to
be indemnified pursuant to said Section; and (v) deliver such documents and
certificates as may be reasonably requested by the underwriters to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company; the
above shall be done at each closing under such underwriting or similar agreement
or as and to the extent required hereunder;
(n) make available for inspection by one or more representatives of
the Holders of Registrable Securities being sold, any underwriter participating
in any disposition pursuant to such registration, and any attorney or accountant
retained by such Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such representatives, in connection with such; and
(o) otherwise use its best efforts to comply with all applicable
Federal and state regulations; and take such other action as may be reasonably
necessary to or advisable to enable each such Holder and each such underwriter
to consummate the sale or disposition in such jurisdiction or jurisdiction in
which any such Holder or underwriter shall have requested that the Registrable
Securities be sold.
Except as otherwise provided in this Agreement, the Company shall have sole
control in connection with the preparation, filing, withdrawal, amendment or
supplementing of each Registration Statement, the selection of underwriters, and
the distribution of any preliminary prospectus included in the Registration
Statement, and may include within the coverage thereof additional shares of
Common Stock or other securities for its own account or for the account of one
or more of its other security holders.
The Company may require each Seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such securities and such other information as may
otherwise be required by the Securities Act to be
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included in such Registration Statement.
6.5 Indemnification
(a) Indemnification by Company. In connection with each Registration
--------------------------
Statement relating to disposition of Registrable Securities, the Company shall
indemnify and hold harmless each Holder, its officers, directors and agents and
each underwriter of Registrable Securities and each Person, if any, who controls
such Holder or underwriter (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity shall not inure
to the benefit of any Holder or underwriter (or any Person controlling such
Holder or underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) on account of any losses, claims, damages or
liabilities arising from the sale of the Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission was made in such
Registration Statement, Prospectus or preliminary prospectus, or such amendment
or supplement, in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter specifically for use
therein. The Company shall also indemnify selling brokers, dealer managers and
similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Holders of Registrable Securities, if requested. This indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) Indemnification by Holder. In connection with each Registration
-------------------------
Statement, each Holder shall indemnify, to the same extent as the
indemnification provided by the Company in Section 6.5(a), the Company, its
directors and each officer who signs the Registration Statement and each Person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act) but only insofar as such losses, claims,
damages and liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in the
Registration Statement, the Prospectus or preliminary prospectus or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
information furnished in writing by such Holder to the Company specifically for
use therein. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled
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<PAGE>
to receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution, to
the same extent as provided above, with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus,
Registration Statement or preliminary prospectus or any amendment thereof or
supplement thereto.
(c) Conduct of Indemnification Procedure. Any party that proposes to
------------------------------------
assert the right to be indemnified hereunder will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or parties
under this Section, notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 6.5(a) or 6.5(b) shall be available to
any party who shall fail to give notice as provided in this Section 6.5(c) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any liability that it may
have to any indemnified party for contribution otherwise than under this
Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in connection with
the defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have reasonably concluded that there
may be a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying parties
shall not have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of which cases
the fees and expenses of counsel shall be at the expense of the indemnifying
parties. An indemnified party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written consent.
(d) Contribution. In connection with each Registration Statement
------------
relating to the disposition of Registrable Securities, if the indemnification
provided for in subsection (a) hereof is unavailable to an indemnified party
thereunder in respect to any losses, claims, damages or liabilities referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 6.5 in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the
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<PAGE>
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Notwithstanding anything
to the contrary in this Section 6.5(d), no selling Holder of Registrable
Securities shall be required to contribute any amount in excess of the net
proceeds it received in connection with its sale of Registrable Securities.
(e) Underwriting Agreement to Control. Notwithstanding the foregoing
---------------------------------
provisions of this Section 6.5, to the extent that the provisions on
indemnification and contribution contained in any underwriting agreement entered
into in connection with the underwritten public offering of the Registrable
Securities are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall control.
(f) Specific Performance. The Company and the Holder acknowledge that
--------------------
remedies at law for the enforcement of this Section 6.5 may be inadequate and
intend that this Section 6.5 shall be specifically enforceable.
(g) Survival of Obligations. The obligations of the Company and the
-----------------------
Holder under this Section 6.5 shall survive the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this Article
6, and otherwise.
6.6 Reports Under Securities Exchange Act of 1934
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined us SEC Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after 90 days after the effective date of the first registration statement filed
by the Company), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the
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most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
ARTICLE 7
OTHER MATTERS
7.1 Binding Effects; Benefits
This Warrant shall inure to the benefit of and shall be binding upon the
Company and the Warrantholder and their respective heirs, legal representatives,
successors and assigns. Nothing in this Warrant, expressed or implied, is
intended to or shall confer on any person other than the Company and the
Warrantholder, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant.
7.2 No Inconsistent Agreements
The Company will not on or after the date of this Warrant enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Warrant or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to holders of
the Company's securities under any other agreements.
7.3 Adjustments Affecting Registrable Securities
The Company will not take any action outside the ordinary course of
business, or permit any change within its control to occur outside the ordinary
course of business, with respect to the Registrable Securities which is without
a bona fide business purpose, and which is intended to interfere with the
ability of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
7.4 Integration/Entire Agreement
This Warrant is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Warrants.
This Warrant supersedes all prior agreements and understandings between the
parties with respect to such subject matter (other than warrants previously
issued by the Company to the Warrantholder).
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<PAGE>
7.5 Amendments and Waivers
The provisions of this Warrant, including the provisions of this sentence,
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of holders of at least a majority of the
outstanding Registrable Securities. Holders shall be bound by any consent
authorized by this Section whether or not certificates representing such
Registrable Securities have been marked to indicate such consent.
7.6 Counterparts
This Warrant may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
7.7 Governing Law
This Warrant shall be governed by and construed in accordance with the laws
of the State of New York.
7.8 Severability
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provisions
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
7.9 Attorneys' Fees
In any action or proceeding brought to enforce any provisions of this
Warrant, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees and
disbursements in addition to its costs and expenses and any other available
remedy.
7.10 Computations of Consent
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (other than the Warrantholder or subsequent Holders if
they are deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
7.11 Notice
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Any notices or certificates by the Company to the Holder and by the Holder
to the Company shall be deemed delivered if in writing and delivered in person
or by registered mail (return receipt requested) to the Holder addressed to him
in care of TMP Interactive, Inc., 5 Clock Tower Place, Suite 500, Maynard,
Massachusetts 01754, or, if the Holder has designated, by notice in writing to
the Company, any other address, to such other address, and if to the Company,
addressed to it at: 1800 Robert Fulton Drive, Suite 250, Reston, Virginia 29191-
9992, Attention: Secretary, or if the Company has designated, by notice in
writing to the Holder, any other address, to such other address.
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
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<PAGE>
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
under its corporate seal as of the 2nd day of May, 2000.
THE NETPLEX GROUP, INC.
By: _______________________________
Title:
Attest: _______________________
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<PAGE>
EXERCISE FORM
(To be executed upon exercise of Warrant)
Netplex Group, Inc.
1800 Robert Fulton Drive, Suite 250
Reston, Virginia 29191-9992
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase Warrant Shares herewith tenders payment
for ______________ of the Warrant Shares to the order of The Netplex Group, Inc.
in the amount of $______ in accordance with the terms of this Warrant; or
Please issue a certificate or certificates for such Warrant Shares in the
name of, and pay any cash for any fractional share to:
Name
(Please print Name, Address and Social
Security No.)
Signature
Federal Tax ID #
Note: The above signature should correspond
exactly with the name on the first page of
this Warrant Certificate or with the name
of the assignee appearing in the
assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder.
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<PAGE>
ASSIGNMENT
(To be executed only upon assignment of Warrant)
For value received, ___________________ hereby sells, assigns and transfers
unto __________________ the within Warrant, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
______________________ attorney, to transfer said Warrant on the books of the
within-named Company with respect to the number of Warrant Shares set forth
below, with full power of substitution in the premises:
Name(s) of No. of
Assignee(s) Address Warrant Shares
- ----------- ------- --------------
And if said number of Warrant Shares shall not be all the Warrant Shares
represented by the Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the Warrant Shares registered by said
Warrant.
Dated: ____________, 20__ Signature
Note: The above signature should
correspond exactly with the name
on the face of this Warrant
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON MAY 2, 2003, OR IF NOT A BUSINESS DAY,
AS DEFINED HEREIN, AT 5:00 P.M., NEW YORK TIME, ON THE NEXT FOLLOWING BUSINESS
DAY.
WARRANT TO PURCHASE
2,000,000
SHARES OF COMMON STOCK
OF
THE NETPLEX GROUP, INC.
No. W-2
This certifies that, for value received, TMP Interactive, Inc. and its
registered assigns (collectively, the "Warrantholder"), is entitled to purchase
from The Netplex Group, Inc., a corporation incorporated under the laws of the
State of New York (the "Company"), subject to the terms and conditions hereof,
at any time on or after the date hereof and before 5:00 p.m., New York time on
May 2, 2003 (or, if such day is not a Business Day, at or before 5:00 p.m., New
York time, on the next following Business Day), up to 2,000,000 fully paid and
nonassessable shares of Common Stock of the Company at the Exercise Price (as
defined herein). The Exercise Price and the number of shares purchasable
hereunder are subject to adjustment from time to time as provided in Article 3
hereof.
<PAGE>
ARTICLE 1
DEFINITION OF TERMS
As used in this Warrant, the following capitalized terms shall have the
following respective meanings:
(a) Business Day: A day other than a Saturday, Sunday or other day on
------------
which banks in the State of New York are authorized by law to remain closed.
(b) Common Stock: Common Stock, par value $.001 per share, of the Company.
------------
(c) Common Stock Equivalents: Securities that are convertible into or
------------------------
exercisable for shares of Common Stock.
(c) Co-Branding Agreement: That certain Co-Branded Services Agreement,
---------------------
dated the date hereof, among TMP Interactive, Inc., The Netplex Group, Inc. and
Contractors Resources, Inc.
(d) Demand Registration: See Section 6.2.
-------------------
(e) Exchange Act: The Securities Exchange Act of 1934, as amended.
------------
(f) Exercise Price: $9.00 per Warrant Share, as such price may be adjusted
--------------
from time to time pursuant to Article 3 hereof.
(g) Expiration Date: 5:00 p.m., New York time, on May 2, 2003, or if such
---------------
day is not a Business Day, the next succeeding day which is a Business Day.
(h) Holder: A Holder of Registrable Securities.
------
(i) NASD: National Association of Securities Dealers, Inc.
----
(j) Person: An individual, partnership, joint venture, corporation, trust,
------
unincorporated organization or government or any department or agency thereof.
(k) Piggyback Registration: See Section 6.1.
----------------------
(l) Prospectus: Any prospectus included in any Registration Statement, as
----------
amended or supplemented by any prospectus supplement, or to which a Term Sheet
(as defined in Rule 434 under the Securities Act) relates, with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments and all materials incorporated
by reference in such Prospectus.
(m) Public Offering: A public offering of any of the Company's equity or
---------------
debt securities
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<PAGE>
pursuant to Registration Statement under the Securities Act.
(n) Registrable Securities: Any Warrant Shares issued to TMP Interactive,
----------------------
Inc. and/or its designees or transferees and/or other securities that may be or
are issued by the Company upon exercise of the Warrants, including those which
may thereafter be issued by the Company in respect of any such securities by
means of any stock splits, stock dividends, recapitalizations, reclassifications
or the like, and as adjusted pursuant to Article 3 hereof; provided, however,
that as to any particular security contained in Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such Registration Statement; or (ii) they shall have been
sold to the public pursuant to Rule 144(k) (or any successor provision) under
the Securities Act.
(o) Registration Expenses: Any and all expenses incurred in connection
---------------------
with any registration or action incident to performance of or compliance by the
Company with Article 6, including, without limitation, (i) all SEC, national
securities exchange and NASD registration and filing fees; all listing fees and
all transfer agent fees; (ii) all fees and expenses of complying with state
securities or blue sky laws (including the fees and disbursements of counsel of
the underwriters in connection with blue sky qualifications of the Registrable
Securities); (iii) all printing, mailing, messenger and delivery expenses; (iv)
all fees and disbursements of counsel for the Company and of its accountants,
including the expenses of any special audits and/or "cold comfort" letters
required by or incident to such performance and compliance; and (v) any
disbursements of underwriters customarily paid by issuers or sellers of
securities including the reasonable fees and expenses of any special experts
retained by the underwriters in connection with the requested registration, but
excluding underwriting discounts and commissions, brokerage fees and transfer
taxes, if any, and fees of counsel or accountants retained by the holders of
Registrable Securities to advise them in their capacity as Holders of
Registrable Securities.
(s) Registration Statement: Any registration statement of the Company
----------------------
filed or to be filed with the SEC which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including all amendments
(including post-effective amendments) and supplements thereto, all exhibits
thereto and all material incorporated therein by reference.
(t) SEC: The Securities and Exchange Commission or any other federal
---
agency at the time administering the Securities Act and the Exchange Act.
(u) Securities Act: The Securities Act of 1933, as amended.
--------------
(v) 25% Holders: At any time as to which a Demand Registration is
-----------
requested, the Holder and/or the holders of any other Warrants and/or the
holders of Warrant Shares who have the right to acquire or hold, as the case may
be, not less than 25% of the combined total of Warrant Shares issuable and
Warrant Shares outstanding (other than Warrant Shares which are no longer
Registrable Securities by reason of the proviso to the definition of the term
"Registrable Securities") at the time such Demand Registration is requested.
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(w) Warrant Shares: Common Stock, Common Stock Equivalents and other
--------------
securities purchased or purchasable upon exercise or conversion of the Warrants.
(x) Warrantholder: The person(s) or entity(ies) to whom this Warrant is
-------------
originally issued, or any successor in interest thereto, or any assignee or
transferee thereof, in whose name this Warrant is registered upon the books to
be maintained by the Company for that purpose.
(y) Warrants: This Warrant and all other warrants that may be issued in
--------
its place (together evidencing the right to purchase an aggregate of up to
2,000,000 shares of Common Stock), originally issued as set forth in the
definition of Registrable Securities.
ARTICLE 2
DURATION AND EXERCISE OF WARRANT
2.1 Duration of Warrant
The Warrantholder may exercise this Warrant at any time and from time to
time after 9:00 a.m., New York time, on the date which is two years from the
date hereof and before 5:00 p.m., New York time, on the Expiration Date.
Notwithstanding the foregoing sentence, if the Co-Branding Agreement is
terminated prior to May 2, 2002 by Contractors Resources, Inc. pursuant to
Section 9 thereto or by TMP Interactive, Inc. pursuant to Sections 9(a)(i),
(a)(ii), (a)(iii), (a)(iv), (a)(v) or (a)(vi) thereto, a portion of this Warrant
equal to the product of (a) 2,000,000 and (b) a fraction (i) the numerator of
which is equal to the number of months elapsed between the date hereof and the
date of such termination and (ii) the denominator of which is 24, shall become
immediately exercisable. Notwithstanding anything herein to the contrary, in
the event of a termination of the Co-Branding Agreement by Contractors
Resources, Inc. pursuant to Section 9 thereto, TMP Interactive, Inc. shall
solely be entitled to exercise, at any time and from time to time after 9:00
a.m., New York time, on May 2, 2002 and before 5:00 p.m., New York time, on the
Expiration Date, a portion of this Warrant equal to the product of (a) 2,000,000
and (b) a fraction (i) the numerator of which is equal to the number of months
elapsed between the date hereof and the date of such termination, and the
remaining portion shall become void, and all rights hereunder shall thereupon
cease.
2.2 Method of Exercise
(a) The Warrantholder may exercise this Warrant, in whole or in part,
by presentation and surrender of this Warrant to the Company at its corporate
office at 1800 Robert Fulton Drive, Suite 250, Reston, Virginia 29191-9992, or
at the office of its stock transfer agent, if any, with the Exercise Form
annexed hereto duly executed, accompanied by payment of the full Exercise Price
for each Warrant Share to be purchased in accordance with Section 2.3(a).
(b) Upon receipt of this Warrant with the Exercise Form fully
executed and
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accompanied by payment of the aggregate Exercise Price for the Warrant Shares
for which this Warrant is then being exercised, the Company shall cause to be
issued certificates for the total number of whole shares of Common Stock for
which this Warrant is being exercised in accordance with Section 2.3(a)
(adjusted to reflect the effect of the anti-dilution provisions contained in
Article 3 hereof, if any, and as provided in Section 2.4 hereof) in such
denominations as are requested for delivery to the Warrantholder, and the
Company shall thereupon deliver such certificates to the Warrantholder. The
Warrantholder shall be deemed to be the holder of record of the shares of Common
Stock issuable upon such exercise as of the time of receipt of the Exercise Form
and payment in accordance with the preceding sentence, in the case of an
exercise for cash pursuant to Section 2.3(a), notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Warrantholder. If at the time this Warrant is exercised, a Registration
Statement is not in effect to register under the Securities Act the Warrant
Shares issuable upon exercise of this Warrant, the Company may, prior to the
satisfaction of any holding period required by Rule 144 promulgated under the
Securities Act, require the Warrantholder to make such representations, and may
place the legends on certificates representing the Warrant Shares, as may be
reasonably required in the opinion of counsel to the Company to permit the
Warrant Shares to be issued without such registration.
(c) In case the Warrantholder shall exercise this Warrant with
respect to less than all of the Warrant Shares that may be purchased under this
Warrant, the Company shall execute as of the exercise date a new warrant in the
form of this Warrant for the balance of such Warrant Shares and deliver such new
warrant to the Warrantholder within 10 days following the exercise date (or, if
later, the Net Issuance Exercise Date).
(d) The Company shall pay any and all stock transfer and similar
taxes which may be payable in respect of the issuance of any Warrant Shares.
2.3 Exercise of Warrant
(a) Right to Exercise for Cash. This Warrant may be exercised by the
--------------------------
Holder by delivery of payment to the Company, for the account of the Company, by
cash, by certified or bank cashier's check or by wire transfer, of the Exercise
Price for the number of Warrant Shares specified in the Exercise Form in lawful
money of the United States of America.
2.4 Reservation of Shares
The Company hereby agrees that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant such number of shares of
Common Stock or other shares of capital stock of the Company from time to time
issuable upon exercise of this Warrant. All such shares shall be duly
authorized, and when issued upon such exercise, shall be validly issued, fully
paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale (except as contemplated
by Sections 2.2(b) and 5.2) and free and clear of all preemptive and other
similar rights.
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2.5 Fractional Shares
The Company shall not be required to issue any fraction of a share of its
capital stock in connection with the exercise of this Warrant, and in any case
where the Warrantholder would, except for the provisions of this Section 2.5, be
entitled under the terms of this Warrant to receive a fraction of a share upon
the exercise of this Warrant, the Company shall, upon the exercise of this
Warrant, pay to the Warrantholder an amount in cash equal to the fair market
value of such fractional share as of the exercise date.
2.6 Listing
Prior to the issuance of any shares of Common Stock upon exercise of this
Warrant, the Company shall use its best efforts to secure the listing of such
shares of Common Stock upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance upon exercise of this Warrant) and shall
maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all shares of Common Stock from time to time issuable upon the
exercise of this Warrant; and the Company shall use its best efforts to so list
on each national securities exchange or automated quotation system, and shall
maintain such listing of, any other shares of capital stock of the Company
issuable upon the exercise of this Warrant if and so long as any shares of the
same class shall be listed on such national securities exchange or automated
quotation system.
ARTICLE 3
ADJUSTMENT OF SHARES OF COMMON STOCK
PURCHASABLE AND OF EXERCISE PRICE
The Exercise Price and the number and kind of Warrant Shares shall be
subject to adjustment from time to time upon the happening of certain events as
provided in this Article 3.
3.1 Mechanical Adjustments
(a) If at any time prior the exercise of this Warrant in full, the
Company shall (i) declare a dividend or make a distribution on the Common Stock
payable in shares of its capital stock (whether shares of Common Stock or of
capital stock of any other class); (ii) subdivide, reclassify or recapitalize
its outstanding Common Stock into a greater number of shares; (iii) combine,
reclassify or recapitalize its outstanding Common Stock into a smaller number of
shares; or (iv) issue any shares of its capital stock by reclassification of its
Common Stock (including any such reclassification in connection with a
consolidation or a merger in which the Company is the continuing corporation),
the number of Warrant Shares issuable upon exercise of the Warrant and/or the
Exercise Price in effect at the time of the record date of such dividend,
distribution, subdivision, combination, reclassification or recapitalization
shall be adjusted so that the Warrantholder shall be entitled to receive the
aggregate number and kind of shares which, if this Warrant had been exercised
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in full immediately prior to such event, the Warrantholder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, combination, reclassification or recapitalization.
Any adjustment required by this Section 3.1(a) shall be made successively
immediately after the record date, in the case of a dividend or distribution, or
the effective date, in the case of a subdivision, combination, reclassification
or recapitalization, to allow the purchase of such aggregate number and kind of
shares.
(b) If any time prior to the exercise of this Warrant in full, the
Company shall fix a record date for the issuance or making of a distribution to
all holders of the Common Stock (including any such distribution to be made in
connection with a consolidation or merger in which the Company is to be the
continuing corporation) of evidences of its indebtedness, any other securities
of the Company or any cash, property or other assets (excluding a combination,
reclassification or recapitalization referred to in Section 3.1(a), regular cash
dividends or cash distributions paid out of net profits legally available
therefor and in the ordinary course of business if the full amount thereof,
together with the value of other dividends and distributions made substantially
concurrently therewith or pursuant to a plan which includes payment thereof, is
equivalent to not more than 5% of the Company's net worth, or subscription
rights, options or warrants for Common Stock or Common Stock Equivalents
(excluding those referred to in Section 3.1(b)) (any such nonexcluded event
being herein called a "Special Dividend")), the Exercise Price shall be
decreased immediately after the record date for such Special Dividend to a price
determined by multiplying the Exercise Price then in effect by a fraction, the
numerator of which shall be the then current market price of the Common Stock
(as defined in Section 3.1(e)) on such record date less the fair market value
(as determined by the Company's Board of Directors) of the evidences of
indebtedness, securities or property, or other assets issued or distributed in
such Special Dividend applicable to one share of Common Stock or of such
subscription rights or warrants applicable to one share of Common Stock and the
denominator of which shall be the then current market price per share of Common
Stock (as so determined). Any adjustments required by this Section 3.1(b) shall
be made successively whenever such a record date is fixed and in the event that
such distribution is not so made, the Exercise Price shall again be adjusted to
be the Exercise Price that was in effect immediately prior to such record date.
(c) If at any time prior to the exercise of this Warrant in full, the
Company shall make a distribution to all holders of the Common Stock of stock of
a subsidiary or securities convertible into or exercisable for such stock, then
in lieu of an adjustment in the Exercise Price or the number of Warrant Shares
purchasable upon the exercise of this Warrant, each Warrantholder, upon the
exercise hereof at any time after such distribution, shall be entitled to
receive from the Company, such subsidiary or both, as the Company shall
determine, the stock or other securities to which such Warrantholder would have
been entitled if such Warrantholder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in this Article 3, and
the Company shall reserve, for the life of the Warrant, such securities of such
subsidiary or other corporation; provided, however, that no adjustment in
respect of dividends or interest on such stock or other securities shall be made
during the term of this Warrant or upon its exercise.
(d) Whenever the Exercise Price payable upon exercise of each Warrant
is
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adjusted pursuant to one or more of paragraphs (a) and (b) of this Section 3.1,
the Warrant Shares shall simultaneously be adjusted by multiplying the number of
Warrant Shares initially issuable upon exercise of each Warrant by the Exercise
Price in effect on the date thereof and dividing the product so obtained by the
Exercise Price, as adjusted.
(e) For the purpose of any computation under this Section 3.1, the
current market price per share of Common Stock at any date shall be deemed to be
the average of the daily closing prices for 20 consecutive trading days
commencing 30 trading days before such date. The closing price for each day
shall be the last sale price regular way or, in case no such reported sales take
place on such day, the average of the last reported bid and asked prices regular
way, in either case on the principal national securities exchange on which the
Common Stock is admitted to trading or listed, or if not listed or admitted to
trading on such exchange, the representative closing bid price as reported by
Nasdaq, or other similar organization if Nasdaq is no longer reporting such
information, or if not so available, the fair market price as determined in good
faith by the Board of Directors of the Company.
(f) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least five cents ($.05)
in such price; provided, however, that any adjustments which by reason of this
paragraph (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
3.1 shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. Notwithstanding anything in this Section 3.1 to the
contrary, the Exercise Price shall not be reduced to less than the then existing
par value of the Common Stock as a result of any adjustment made hereunder.
(g) In the event that at any time, as a result of any adjustment made
pursuant to Section 3.1(a), the Warrantholder thereafter shall become entitled
to receive any shares of the Company other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Stock
contained in this Section 3.1.
(h) In case any event shall occur as to which the other provisions of
this Article 3 are not strictly applicable but as to which the failure to make
any adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles hereof then, in
each such case, the Warrantholders representing the right to purchase a majority
of the Warrant Shares subject to all outstanding Warrants may appoint a firm of
independent public accountants of recognized national standing reasonably
acceptable to the Company, which shall give their opinion as to the adjustment,
if any, on a basis consistent with the essential intent and principles
established herein, necessary to preserve the purchase rights represented by the
Warrants. Upon receipt of such opinion, the Company will promptly mail a copy
thereof to the Warrantholder and shall make the adjustments described therein.
The fees and expenses of such independent public accountants shall be borne by
the Company.
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(i) If, as a result of an adjustment made pursuant to this Article 3,
the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Exercise Price between or among shares
or such classes of capital stock or shares of Common Stock and other capital
stock.
3.2 Notices of Adjustment
Whenever the number of Warrant Shares or the Exercise Price is adjusted as
herein provided, the Company shall prepare and deliver forthwith to the
Warrantholder a certificate signed by its President, and by any Vice President,
Treasurer or Secretary, setting forth the adjusted number of shares purchasable
upon the exercise of this Warrant and the Exercise Price of such shares after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which adjustment was made.
3.3 No Adjustment for Dividends
Except as provided in Section 3.1 of this Agreement, no adjustment in
respect of any cash dividends shall be made during the term of this Warrant or
upon the exercise of this Warrant.
3.4 Preservation of Purchase Rights in Certain Transactions
In case of any reclassification, capital reorganization or other change of
outstanding shares of Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in the par value of the
Common Stock) or in case of any consolidation or merger of the Company with or
into another corporation (other than merger with a subsidiary in which the
Company is the continuing corporation and that does not result in any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the class issuable upon exercise of this Warrant) or in the
case of any sale, lease, transfer or conveyance to another corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, the Holder of this Warrant shall have the right thereafter to receive
on the exercise of this Warrant the kind and amount of securities, cash or other
property which the Holder would have owned or have been entitled to receive
immediately after such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Article 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Article 3 shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable on the exercise of
this Warrant. The provisions of this Section 3.4 shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of
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any shares of stock or other securities or property thereafter deliverable on
the exercise of this Warrant shall be responsible for all of the agreements and
obligations of the Company hereunder. Notice of any such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and of said provisions so proposed to be made, shall be mailed to the Holders of
the Warrants not less than 30 days prior to such event. A sale of all or
substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
3.5 Form of Warrant After Adjustments
The form of this Warrant need not be changed because of any adjustments in
the Exercise Price or the number or kind of the Warrant Shares, and Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this Warrant, as initially issued.
3.6 Treatment of Warrantholder
Prior to due presentment for registration of transfer of this Warrant, the
Company may deem and treat the Warrantholder as the absolute owner of this
Warrant (notwithstanding any notation of ownership or other writing hereon) for
all purposes and shall not be affected by any notice to the contrary.
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDER
4.1 No Rights as Shareholders; Notice to Warrantholders
Nothing contained in this Warrant shall be construed as conferring upon the
Warrantholder or his or its transferees the right to vote or to receive
dividends or to consent or to receive notice as a shareholder in respect of any
meeting of shareholders for the election of directors of the Company or of any
other matter, or any rights whatsoever as shareholders of the Company. The
Company shall give notice to the Warrantholder by registered mail if at any time
prior to the expiration or exercise in full of the Warrants, any of the
following events shall occur:
(a) the Company shall authorize the payment of any dividend payable
in any securities upon shares of Common Stock or authorize the making of
any distribution (other than a cash dividend subject to the parenthetical
set forth in Section 3.1(b)) to all holders of Common Stock;
(b) the Company shall authorize the issuance to all holders of Common
Stock of any additional shares of Common Stock or Common Stock Equivalents
or of rights, options or warrants to subscribe for or purchase Common Stock
or Common Stock Equivalents or of any other subscription rights, options or
warrants (other than Common Stock or Common
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Stock Equivalents or of rights, options or warrants to subscribe for or
purchase Common Stock or Common Stock Equivalents or of any other
subscription rights, options or warrants subject to the parenthetical set
forth in Section 3.1(b));
(c) a dissolution, liquidation or winding up of the Company shall be
proposed; or
(d) a capital reorganization or reclassification of the Common Stock
(other than a subdivision or combination of the outstanding Common Stock
and other than a change in the par value of the Common Stock) or any
consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
change of Common Stock outstanding) or in the case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety.
Such giving of notice shall be initiated (i) at least 10 Business Days
prior to the date fixed as a record date or effective date or the date of
closing of the Company's stock transfer books for the determination of the
shareholders entitled to such dividend, distribution or subscription rights, or
for the determination of the shareholders entitled to vote on such proposed
merger, consolidation, sale, conveyance, dissolution, liquidation or winding up.
Such notice shall specify such record date or the date of closing the stock
transfer books, as the case may be. Failure to provide such notice shall not
affect the validity of any action taken in connection with such dividend,
distribution or subscription rights, or proposed merger, consolidation, sale,
conveyance, dissolution, liquidation or winding up.
4.2 Lost, Stolen, Mutilated or Destroyed Warrants
If this Warrant is lost, stolen, mutilated or destroyed, the Company may,
on such terms as to indemnity or otherwise as it may in its reasonable judgment
impose (which shall include reasonable costs and expenses and, in the case of a
mutilated Warrant, including the surrender thereof), issue a new Warrant of like
denomination and tenor as, and in substitution for, this Warrant.
ARTICLE 5
SPLIT-UP, COMBINATION, EXCHANGE AND
TRANSFER OF WARRANTS AND WARRANT SHARES
5.1 Split-Up, Combination and Exchange of Warrants
This Warrant may be split up, combined or exchanged for another Warrant or
Warrants containing the same terms to purchase a like aggregate number of
Warrant Shares. If the Warrantholder desires to split up, combine or exchange
this Warrant, he or it shall make such request in writing delivered to the
Company and shall surrender to the Company this Warrant and any other Warrants
to be so split-up, combined or exchanged. Upon any such surrender for a split-
up,
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combination or exchange, the Company shall execute and deliver to the person
entitled thereto a Warrant or Warrants, as the case may be, as so requested. The
Company shall not be required to effect any split-up, combination or exchange
which will result in the issuance of a Warrant entitling the Warrantholder to
purchase upon exercise a fraction of a share of Common Stock or a fractional
Warrant. The Company may require such Warrantholder to pay a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
split-up, combination or exchange of Warrants.
5.2 Restrictions on Transfer, Restrictive Legends
Except as otherwise permitted by this Section 5.2, each Warrant shall (and
each Warrant issued upon direct or indirect transfer or in substitution for any
Warrant issued pursuant to Section 5.1 shall) be stamped or otherwise imprinted
with a legend in substantially the following form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
Except as otherwise permitted by this Section 5.2, each stock certificate
for Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT AND LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a Warrant or a stock certificate for Warrant Shares, in each case without
a legend, if (i) the issuance of such Warrant Shares has been registered under
the Securities Act and any applicable state securities laws, (ii) such Warrant
or such Warrant Shares, as the case may be, have been registered for resale
under the Securities Act or sold pursuant to Rule 144 under the Securities Act
(or a successor thereto) or (iii) the Warrantholder has received an opinion of
counsel (who may be house counsel for such Warrantholder) reasonably
satisfactory to the Company that such registration is not required with respect
to such Warrant or such Warrant Shares, as the case may be.
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ARTICLE 6
REGISTRATION UNDER THE SECURITIES ACT OF 1933
6.1 Piggyback Registration
(a) Right to Include Registrable Securities. If at any time or from
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time to time prior to the second anniversary of the Expiration Date, the Company
proposes to register any of its securities under the Securities Act on any form
for the registration of securities under such Act, whether or not for its own
account (other than by a registration statement on Form S-8 or other form which
does not include substantially the same information as would be required in a
form for the general registration of securities or would not be available for
the Registrable Securities) (a "Piggyback Registration"), it shall as
expeditiously as possible give written notice to all Holders of its intention to
do so and of such Holders' rights under this Section 6.1. Such rights are
referred to hereinafter as "Piggyback Registration Rights." Upon the written
request of any such Holder made within 10 days after receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Holder), the Company shall include in the Registration Statement the
Registrable Securities which the Company has been so requested to register by
the Holders thereof and the Company shall use its reasonable best efforts to
keep such registration statement in effect and maintain compliance with each
federal and state law or regulation for the period necessary for such Holder to
effect the proposed sale or other disposition (but in no event for a period
greater than 90 days); provided that the Company shall not be in breach of its
obligations hereunder or otherwise responsible for any failure to keep such
registration statement in effect caused by any act or omission of a Holder.
(b) Withdrawal of Piggyback Registration by Company. If, at any time
-----------------------------------------------
after giving written notice of its intention to register any securities in a
Piggyback Registration but prior to the effective date of the related
Registration Statement, the Company shall determine for any reason not to
register such securities, the Company shall give notice of such determination to
each Holder and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such Piggyback Registration. All best
efforts obligations of the Company pursuant to Section 6.4 shall cease if the
Company determines to terminate prior to such effective date any registration
where Registrable Securities are being registered pursuant to this Section 6.1.
(c) Piggyback Registration of Underwritten Public Offering. If a
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Piggyback Registration involves an offering by or through underwriters, then (i)
all Holders requesting to have their Registrable Securities included in the
Company's Registration Statement must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to other selling shareholders and (ii) any Holder requesting to have his or its
Registrable Securities included in such Registration Statement may elect in
writing, not later than three Business Days prior to the effectiveness of the
Registration Statement filed in connection with such registration, not to have
his or its Registrable Securities so included in connection with such
registration.
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(d) Payment of Registration Expenses for Piggyback Registration. The
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Company shall pay all Registration Expenses in connection with each registration
of Registrable Securities requested pursuant to a Piggyback Registration Right
contained in this Section 6.1.
(e) Priority in Piggyback Registration. If a Piggyback Registration
----------------------------------
involves an offering by or through underwriters, the Company, except as
otherwise provided herein, shall not be required to include Registrable Shares
therein if and to the extent the underwriter managing the offering reasonably
believes in good faith and advises the Company (which shall promptly notify the
Holder) that such inclusion would materially adversely affect such offering;
provided that (i) if other selling shareholders without contractual registration
rights have requested registration of securities in the proposed offering, the
Company will reduce or eliminate such securities held by selling shareholders
without registration rights before any reduction or elimination of Registrable
Securities; and (ii) any such reduction or elimination (after taking into
account the effect of clause (i)) shall be pro rata to all other selling
shareholders with contractual registration rights.
6.2 Demand Registration
(a) Request for Registration. If, at any time prior to the
------------------------
Expiration Date, any 25% Holders request that the Company file a registration
statement under the Securities Act, as soon as practicable thereafter the
Company shall use its best efforts to file a registration statement with respect
to all Warrant Shares that it has been so requested to include and obtain the
effectiveness thereof, and to take all other action necessary under federal or
state law or regulation to permit the Warrant Shares that are held and/or that
may be acquired upon the exercise of the Warrants specified in the notices of
the Holders or holders hereof to be sold or otherwise disposed of, and the
Company shall maintain such compliance with each such federal and state law and
regulation for the period necessary for such Holders or Holders to effect the
proposed sale or other disposition; provided, however, the Company shall be
entitled to defer such registration for a period of up to 60 days if and to the
extent that its Board of Directors shall in good faith determine that such
registration would require disclosure of information not otherwise then required
to be disclosed and that such disclosure would adversely affect any material
business situation, transaction or negotiation then proposed, contemplated or
being engaged in by the Company. The Company shall also promptly give written
notice to the Holders and the holders of any other Warrants and/or the holders
of any Warrant Shares who or that have not made a request to the Company
pursuant to the provisions of this Section 6.2(a) of its intention to effect any
required registration or qualification, and shall use its best efforts to effect
as expeditiously as possible such registration or qualification of all such
other Warrant Shares that are then held and/or that may be acquired upon the
exercise of the Warrants, the Holder or holders of which have requested such
registration or qualification, within 15 days after such notice has been given
by the Company, as provided in the preceding sentence. The Company shall be
required to effect a registration or qualification pursuant to this Section
6.2(a) on one occasion only.
(b) Payment of Registration Expenses for Demand Registration. The
--------------------------------------------------------
Company shall pay all Registration Expenses in connection with the Demand
Registration.
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(c) Selection of Underwriters. If any Demand Registration is
-------------------------
requested to be in the form of an underwritten offering, the managing
underwriter shall be selected and obtained by the Holders of a majority of the
Warrant Shares to be registered. Such selection shall be subject to the
Company's consent, which consent shall not be unreasonably withheld.
(d) Procedure for Requesting Demand Registration. Any request for a
--------------------------------------------
Demand Registration shall specify the aggregate number of the Registrable
Securities proposed to be sold and the intended method of disposition. Within
10 days after receipt of such a request the Company will give written notice of
such registration request to all Holders, and, subject to the limitations of
Section 6.2(b), the Company will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 Business Days after the date on which such notice is
given. Each such request shall also specify the aggregate number of Registrable
Securities to be registered and the intended method of disposition thereof.
6.3 Buy-Outs of Registration Demand
In lieu of carrying out its obligations to effect a Piggyback Registration
or Demand Registration of any Registrable Securities pursuant to this Article 6,
the Company may carry out such obligation by offering to purchase and purchasing
such Registrable Securities requested to be registered in an amount in cash
equal to the difference between (a) 95% of the last sale price of the Common
Stock on the day the request for registration is made and (b) the Exercise Price
in effect on such day; provided, however, that the Holder or Holders may
withdraw such request for registration rather than accept such offer by the
Company.
6.4 Registration Procedures
If and whenever the Company is required to use its best efforts to take
action pursuant to any Federal or state law or regulation to permit the sale or
other disposition of any Registrable Securities that are then held or that may
be acquired upon exercise of the Warrants in order to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Article 6, the Company shall, as expeditiously as practicable, use its
best efforts to:
(a) prepare and file with the SEC, as soon as practicable within 60
days after the end of the period within which requests for registration may be
given to the Company (but subject to the provision for deferral contained in
Section 6.2(a) hereof) a Registration Statement or Registration Statements
relating to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause such Registration Statements to become effective;
provided that before filing a Registration Statement or Prospectus or any
amendment or supplements thereto, including documents incorporated by reference
after the initial filing of any Registration Statement, the Company will furnish
to the Holders of the Registrable Securities covered by such Registration
Statement and the underwriters, if any, copies of all such documents proposed to
be filed, which documents will be subject to the review of such Holders and
underwriters; provided, that the Company shall not be in breach of its
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obligations hereunder or otherwise responsible for any failure to keep such
registration statement in effect caused by any act or omission of a Holder;
(b) prepare and file with the SEC such amendments and post-effective
amendments to a Registration Statement as may be necessary to keep such
Registration Statement effective for 180 days if the offering is not
underwritten, provided, that such 180 day period shall be extended by the number
of days a Prospectus is not available pursuant to Section 6.4(k) because of the
occurrence of an event set forth in Section 6.4(c)(vi); provided, that the
Company shall not be in breach of its obligations hereunder or otherwise
responsible for any failure to keep such registration statement in effect caused
by any act or omission of a Holder; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to such Prospectus;
(c) notify the selling Holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related Prospectus or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose; (iv) if at any time the representations and warranties of the Company
contemplated by paragraph (m) below ceases to be true and correct in all
material respects; (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes; and (vi) of the happening of any event that makes
any statement of a material fact made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement or Prospectus
so that they will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading:
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment (subject to Section 6.4(a));
(e) if reasonably requested by the managing underwriters, immediately
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters believe (on advice of counsel) should
be included therein as required by applicable law relating to such sale of
Registrable Securities, including, without limitation, information with respect
to the purchase price being paid for the Registrable Securities by such
underwriters and with respect to any other terms of the underwritten (or "best-
efforts" underwritten)
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offering; and make all required filings of such Prospectus supplement or post-
effective amendment as soon as notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(f) furnish to each selling Holder of Registrable Securities and each
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary prospectus) any amendment or supplement
thereto as such Persons may reasonably request; the Company consents to the use
of such Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, cooperate
with the selling Holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or underwriter reasonably requests in writing, keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration Statement;
provided that the Company will not be required to (i) qualify to do business in
any jurisdiction where it not then so qualified or (ii) to take any action which
would subject the Company to (a) general service of process in any jurisdiction
where it is not at the time so subject, or (b) taxation by any jurisdiction
where it is not at the time so subject;
(i) cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends to the extent permitted by applicable law and
regulation; and enable such Registrable Securities to be in such denominations
and registered in such names as the managing underwriters may request at least
two Business Days prior to any sale of Registrable Securities to the
underwriters;
(j) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities within the United States as may
be necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section
6.4(c)(vi) above, prepare a supplement or post-effective amendment to the
applicable Registration Statement or
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related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(l) with respect to each issue or class of Registrable Securities,
use its best efforts to cause all Registrable Securities covered by the
Registration Statements to be listed on each securities exchange or automated
quotation system, if any, on which similar securities issued by the Company are
then listed if requested by the Holders of a majority of such issue or class of
Registrable Securities;
(m) enter into such agreements (including an underwriting agreement)
and take all such other action reasonably required in connection therewith in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection, if the registration is in connection with an
underwritten offering (i) make such representations and warranties to the
underwriters (or the Holders of the Registrable Securities if such offering is
not underwritten), in such form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions in form, scope and substance shall be
reasonably satisfactory to the underwriters) addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
underwriters; (iii) obtain "cold comfort" letters and updates thereof from the
Company's accountants addressed to the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with underwritten offerings; (iv)
set forth in full in any underwriting agreement entered into the indemnification
provisions and procedures of Section 6.5 hereof with respect to all parties to
be indemnified pursuant to said Section; and (v) deliver such documents and
certificates as may be reasonably requested by the underwriters to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company; the
above shall be done at each closing under such underwriting or similar agreement
or as and to the extent required hereunder;
(n) make available for inspection by one or more representatives of
the Holders of Registrable Securities being sold, any underwriter participating
in any disposition pursuant to such registration, and any attorney or accountant
retained by such Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such representatives, in connection with such; and
(o) otherwise use its best efforts to comply with all applicable
Federal and state regulations; and take such other action as may be reasonably
necessary to or advisable to enable each such Holder and each such underwriter
to consummate the sale or disposition in such jurisdiction or jurisdiction in
which any such Holder or underwriter shall have requested that the Registrable
Securities be sold.
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Except as otherwise provided in this Agreement, the Company shall have sole
control in connection with the preparation, filing, withdrawal, amendment or
supplementing of each Registration Statement, the selection of underwriters, and
the distribution of any preliminary prospectus included in the Registration
Statement, and may include within the coverage thereof additional shares of
Common Stock or other securities for its own account or for the account of one
or more of its other security holders.
The Company may require each Seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such securities and such other information as may
otherwise be required by the Securities Act to be included in such Registration
Statement.
6.5 Indemnification
(a) Indemnification by Company. In connection with each Registration
--------------------------
Statement relating to disposition of Registrable Securities, the Company shall
indemnify and hold harmless each Holder, its officers, directors and agents and
each underwriter of Registrable Securities and each Person, if any, who controls
such Holder or underwriter (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity shall not inure
to the benefit of any Holder or underwriter (or any Person controlling such
Holder or underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) on account of any losses, claims, damages or
liabilities arising from the sale of the Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission was made in such
Registration Statement, Prospectus or preliminary prospectus, or such amendment
or supplement, in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter specifically for use
therein. The Company shall also indemnify selling brokers, dealer managers and
similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Holders of Registrable Securities, if requested. This indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) Indemnification by Holder. In connection with each Registration
-------------------------
Statement,
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each Holder shall indemnify, to the same extent as the indemnification provided
by the Company in Section 6.5(a), the Company, its directors and each officer
who signs the Registration Statement and each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) but only insofar as such losses, claims, damages and liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in the Registration Statement, the
Prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, in reliance upon and in conformity with information furnished in
writing by such Holder to the Company specifically for use therein. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent as
provided above, with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus, Registration Statement or
preliminary prospectus or any amendment thereof or supplement thereto.
(c) Conduct of Indemnification Procedure. Any party that proposes to
------------------------------------
assert the right to be indemnified hereunder will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or parties
under this Section, notify each such indemnifying party of the commencement of
such action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 6.5(a) or 6.5(b) shall be available to
any party who shall fail to give notice as provided in this Section 6.5(c) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the omission so to notify such indemnifying party of any such
action, suit or proceeding shall not relieve it from any liability that it may
have to any indemnified party for contribution otherwise than under this
Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in connection with
the defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have reasonably concluded that there
may be a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying parties
shall not have employed counsel to assume the defense of such action within a
reasonable time after
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notice of the commencement thereof, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying parties. An indemnified
party shall not be liable for any settlement of any action, suit, proceeding or
claim effected without its written consent.
(d) Contribution. In connection with each Registration Statement
------------
relating to the disposition of Registrable Securities, if the indemnification
provided for in subsection (a) hereof is unavailable to an indemnified party
thereunder in respect to any losses, claims, damages or liabilities referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 6.5 in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. Notwithstanding anything
to the contrary in this Section 6.5(d), no selling Holder of Registrable
Securities shall be required to contribute any amount in excess of the net
proceeds it received in connection with its sale of Registrable Securities.
(e) Underwriting Agreement to Control. Notwithstanding the foregoing
---------------------------------
provisions of this Section 6.5, to the extent that the provisions on
indemnification and contribution contained in any underwriting agreement entered
into in connection with the underwritten public offering of the Registrable
Securities are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall control.
(f) Specific Performance. The Company and the Holder acknowledge
--------------------
that remedies at law for the enforcement of this Section 6.5 may be inadequate
and intend that this Section 6.5 shall be specifically enforceable.
(g) Survival of Obligations. The obligations of the Company and the
-----------------------
Holder under this Section 6.5 shall survive the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this Article
6, and otherwise.
6.6 Reports Under Securities Exchange Act of 1934
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined us SEC Rule 144, at all times after 90 days after the
effective date of the first registration
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statement filed by the Company for the offering of its securities to the general
public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after 90 days after the effective date of the first registration statement filed
by the Company), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
ARTICLE 7
OTHER MATTERS
7.1 Binding Effects; Benefits
This Warrant shall inure to the benefit of and shall be binding upon the
Company and the Warrantholder and their respective heirs, legal representatives,
successors and assigns. Nothing in this Warrant, expressed or implied, is
intended to or shall confer on any person other than the Company and the
Warrantholder, or their respective heirs, legal representatives, successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Warrant.
7.2 No Inconsistent Agreements
The Company will not on or after the date of this Warrant enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Warrant or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to holders of
the Company's securities under any other agreements.
7.3 Adjustments Affecting Registrable Securities
The Company will not take any action outside the ordinary course of
business, or permit any change within its control to occur outside the ordinary
course of business, with respect to the Registrable Securities which is without
a bona fide business purpose, and which is intended to interfere with the
ability of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
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7.4 Integration/Entire Agreement
This Warrant is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Warrants.
This Warrant supersedes all prior agreements and understandings between the
parties with respect to such subject matter (other than warrants previously
issued by the Company to the Warrantholder).
7.5 Amendments and Waivers
The provisions of this Warrant, including the provisions of this sentence,
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of holders of at least a majority of the
outstanding Registrable Securities. Holders shall be bound by any consent
authorized by this Section whether or not certificates representing such
Registrable Securities have been marked to indicate such consent.
7.6 Counterparts
This Warrant may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
7.7 Governing Law
This Warrant shall be governed by and construed in accordance with the laws
of the State of New York.
7.8 Severability
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provisions
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
7.9 Attorneys' Fees
In any action or proceeding brought to enforce any provisions of this
Warrant, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees and
disbursements in addition to its costs and expenses and any other available
remedy.
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7.10 Computations of Consent
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (other than the Warrantholder or subsequent Holders if
they are deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
7.11 Notice
Any notices or certificates by the Company to the Holder and by the Holder
to the Company shall be deemed delivered if in writing and delivered in person
or by registered mail (return receipt requested) to the Holder addressed to him
in care of TMP Interactive, Inc., 5 Clock Tower Place, Suite 500, Maynard,
Massachusetts 01754, or, if the Holder has designated, by notice in writing to
the Company, any other address, to such other address, and if to the Company,
addressed to it at: 1800 Robert Fulton Drive, Suite 250, Reston, Virginia 29191-
9992, Attention: Secretary, or if the Company has designated, by notice in
writing to the Holder, any other address, to such other address.
The Company may change its address by written notice to the Holder and the
Holder may change its address by written notice to the Company.
IN WITNESS WHEREOF, this Warrant has been duly executed by the Company
under its corporate seal as of the 2nd day of May, 2000.
THE NETPLEX GROUP, INC.
By: _______________________________
Title:
Attest: _______________________
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EXERCISE FORM
(To be executed upon exercise of Warrant)
Netplex Group, Inc.
1800 Robert Fulton Drive, Suite 250
Reston, Virginia 29191-9992
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase Warrant Shares herewith tenders payment
for ______________ of the Warrant Shares to the order of The Netplex Group, Inc.
in the amount of $______ in accordance with the terms of this Warrant; or
Please issue a certificate or certificates for such Warrant Shares in the
name of, and pay any cash for any fractional share to:
Name
(Please print Name, Address and Social
Security No.)
Signature
Federal Tax ID #
Note: The above signature should correspond
exactly with the name on the first page of
this Warrant Certificate or with the name
of the assignee appearing in the
assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder.
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ASSIGNMENT
(To be executed only upon assignment of Warrant)
For value received, ___________________ hereby sells, assigns and transfers
unto __________________ the within Warrant, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
______________________ attorney, to transfer said Warrant on the books of the
within-named Company with respect to the number of Warrant Shares set forth
below, with full power of substitution in the premises:
Name(s) of No. of
Assignee(s) Address Warrant Shares
- ----------- ------- --------------
And if said number of Warrant Shares shall not be all the Warrant Shares
represented by the Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the Warrant Shares registered by said
Warrant.
Dated: __________, 20__ Signature
Note: The above signature should correspond
exactly with the name on the face of
this Warrant
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Exhibit D
Monthly Data on Contractors to be Provided by MyBiz
---------------------------------------------------
1. Number of visits from Monster.com/Monster Talent Market visitors
2. Number of page views
3. Number of users signed-up
4. Conversion data (number of users who registered for the Co-Branded Service,
number of users who request a phone call from the Co-Branded Service,
number of users in the sales pipeline)
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Schedule A
Competitors
-----------
*
* Confidential portions have been omitted and filed separately with the
Commission.
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