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EXHIBIT 4.3
THESE SECURITIES AND THE SECURITIES TO BE ISSUED UPON ANY EXERCISE OF
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT OR
(iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT, PROVIDED
THAT IN A TRANSACTION PURSUANT TO (iii) ABOVE, IF REQUESTED BY THE
ISSUER HEREOF, AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM
AND SUBSTANCE IS FURNISHED TO SUCH ISSUER STATING THAT AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
HOMESEEKERS.COM, INCORPORATED
Common Stock Warrant No. 1
Expiring November 15, 2001
November 15, 2000
HOMESEEKERS.COM, INCORPORATED, a Nevada corporation (herein, together
with its successors and assigns, the "Company"), for value received, hereby
certifies that eBay Inc., or registered assigns, is entitled to purchase from
the Company, at any time or from time to time prior to 5:00 p.m., New York City
time, on November 15, 2001, 1,200,000 duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock, par value $.001 per share (the
"Common Stock"), of the Company at a purchase price of $1.50 per share (subject
to the adjustment in accordance with Section 2, the "Warrant Price"), all
subject to the terms, conditions and adjustments set forth below in this
Warrant.
1. EXERCISE OF WARRANT.
1.1 MANNER OF EXERCISE. This Warrant may be exercised by the holder
hereof, in whole or in part, during normal business hours on any Business Day by
surrender of this Warrant to the Company at the office of the Company maintained
pursuant to Section 7.2, accompanied by a subscription in substantially the form
annexed hereto duly executed by such holder and:
(a) by payment in cash or by certified or official bank check
payable to the order of the Company or by wire transfer in the amount
obtained by multiplying (i)
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the number of shares of Common Stock (without giving effect to any
adjustment therein) designated in such subscription by (ii) the then
applicable Warrant Price;
(b) if the Market Price is greater than the Warrant Price (at
the date of calculation as set forth below), in lieu of exercising this
Warrant for cash, the holder may elect to receive shares equal to the value
(as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the
Company together with the properly endorsed subscription and notice of such
election in which event the Company shall issue to the holder a number of
shares of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the
Holder
Y = the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
A = the Market Price (at the date of such calculation)
B = the Warrant Price (as adjusted to the date of such
calculation); or
(c) by any combination of the foregoing, whereupon such holder
shall be entitled to receive the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock (or Other Securities)
determined as provided in Section 2.
1.2 WHEN EXERCISE EFFECTIVE. Any exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in Section 1.1 and at such time the Person or Persons in whose name or
names any certificate or certificates for shares of Common Stock (or Other
Securities) shall be issuable upon such exercise as provided in Section 1.3
shall be deemed to have become the holder or holders of record thereof.
1.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after
the exercise of this Warrant, in whole or in part, and in any event within three
(3) Business Days thereafter, the Company at its expense (including the payment
by it of any applicable issuance taxes) will cause to be issued in the name of
and delivered to the holder hereof or, subject to Section 5, as such holder
(upon payment by such holder of any applicable transfer taxes) may direct:
(a) a certificate or certificates for the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) to which such holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such holder
would otherwise be entitled, cash in an amount
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equal to the same fraction of the Market Price per share on the Business
Day next preceding the date of such exercise; and
(b) in case such exercise is in part only, a new Warrant or
Warrants of like tenor, calling in the aggregate on the face or faces
thereof for issuance of the number of shares of Common Stock equal (without
giving effect to any adjustment therein) to the number of such shares
called for on the face of this Warrant minus the number of such shares so
designated by such holder upon such exercise as provided in Section 1.1.
2. CERTAIN ADJUSTMENTS TO WARRANT.
2.1 ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS, SUBDIVISIONS,
COMBINATIONS OR CONSOLIDATION OF COMMON STOCK.
2.1.1 STOCK DIVIDENDS, DISTRIBUTIONS OR SUBDIVISIONS. In the event the
Company shall issue additional shares of Common Stock in a stock dividend, stock
distribution or subdivision, the Warrant Price in effect immediately prior to
such stock dividend, stock distribution or subdivision shall, concurrently with
the effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased.
2.1.2 COMBINATIONS OR CONSOLIDATIONS. In the event the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.2 ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation or merger of the Company with or into another Company, the
conveyance of all, or substantially all, of the assets of the Company to another
corporation or any transactions or series of related transactions in which in
excess of fifty (50%) of the Company's voting power is transferred, this Warrant
shall thereafter be exercisable to purchase the number of shares of stock or
other securities or property to which a holder of the number of shares of Common
Stock of the Company deliverable upon exercise of this Warrant would have been
entitled upon such consolidation, merger or conveyance; and, in any such case,
appropriate adjustment (as determined by the Board of Directors) shall be made
in the application of the provisions herein set forth with respect to the rights
and interest thereafter of the holder of this Warrant to the end that the
provisions set forth in Section 2.1 and this Section 2.2 (including provisions
with respect to changes in and other adjustments of the Warrant Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the exercise of
this Warrant.
3. NO DILUTION OR IMPAIRMENT. The Company (a) will not permit the
par value of any shares of stock receivable upon any exercise of this Warrant to
exceed the amount payable therefor upon such exercise, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of stock upon each
exercise of this Warrant and (c) will not take any action that results in any
adjustment of the Warrant Price if the total number of shares of Common Stock
(or Other
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Securities) issuable after such action, upon any exercise of this
Warrant, would exceed the total number of shares of Common Stock (or Other
Securities) then authorized by the Company's articles of incorporation and
available for the purpose of issuance upon such exercise.
4. REPORT AS TO ADJUSTMENTS. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable upon
the exercise or conversion of this Warrant, the Company at its expense will
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and prepare a report setting forth such adjustment or readjustment
and showing in detail the method of calculation thereof and the facts upon which
such adjustment or readjustment is based, including a statement of the Warrant
Price in effect immediately prior to such issuance or sale and as adjusted and
readjusted (if required by Section 2) on account thereof. The Company will
forthwith (and in any event not later than 20 days following the occurrence of
the event requiring such adjustment) furnish a copy of each such report to each
holder of this Warrant, and will, upon the written request at any time of any
holder of this Warrant, furnish to such holder a like report setting forth the
Warrant Price at the time in effect and showing how it was calculated. The
Company also will keep copies of all such reports at its principal office and at
the office or agency required to be maintained by it pursuant to Section 7.2,
and will cause the same to be available for inspection at each such office
during normal business hours by any holder of this Warrant or any prospective
purchaser of this Warrant designated by the holder thereof.
5. RESTRICTIONS ON TRANSFER.
5.1 RESTRICTIVE LEGENDS. Except as otherwise permitted by this
Section 5, each Warrant originally issued, each Warrant issued upon direct or
indirect transfer or in substitution for any Warrant pursuant to Section 7, each
certificate for Common Stock (or Other Securities) issued upon the exercise of
any Warrant, and each certificate issued upon the direct or indirect transfer of
any such Common Stock (or Other Securities), shall be stamped or otherwise
imprinted with a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 NOR PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT OR
(iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT, PROVIDED
THAT IN A TRANSACTION PURSUANT TO (iii) ABOVE, IF REQUESTED BY THE
ISSUER HEREOF, AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM
AND SUBSTANCE IS FURNISHED TO SUCH ISSUER STATING THAT AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
5.2 NOTICE OF PROPOSED TRANSFER; OPINIONS OF COUNSEL. Prior to any
transfer of any Restricted Securities that are not registered pursuant to an
effective registration statement
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under the Securities Act (other than a transfer pursuant to Rule 144, Rule 144A
or any comparable rule under the Securities Act), the holder thereof will give
written notice to the Company of such holder's intention to effect such transfer
and to comply in all other respects with this Section 5.2. Each such notice
shall (a) describe the manner and circumstances of the proposed transfer in
sufficient detail to enable counsel to render the opinion referred to below and
(b) designate counsel for the holder giving such notice, which counsel shall be
reasonably satisfactory to the Company. The holder giving such notice will
submit a copy thereof to the counsel designated in such notice. The following
provisions shall then apply:
(1) if in the written opinion of such counsel for the holder,
obtained at the holder's sole cost and expense and a copy of which shall be
delivered to the Company and shall be reasonably satisfactory in form,
scope and substance to the Company, the proposed transfer may be effected
without registration of such Restricted Securities under the Securities Act
or applicable state securities laws, such holder shall thereupon be
entitled to transfer such Restricted Securities in accordance with the
terms of the notice delivered by such holder to the Company. Each
Restricted Security or certificate, if any, issued upon or in connection
with such transfer shall bear an appropriate restrictive legend unless, in
the opinion of such counsel, such legend is no longer required to insure
compliance with the Securities Act and applicable state securities laws;
and
(2) if the opinion of such counsel rendered pursuant to the
foregoing subsection (1) is not to the effect that the proposed transfer
may legally be effected without registration of such Restricted Securities
under the Securities Act or applicable state securities laws (such opinion
to state the basis of the legal conclusions reached therein), such holder
shall not be entitled to transfer such Restricted Securities (other than a
transfer pursuant to Rule 144, Rule 144A or any comparable rule under the
Securities Act) until receipt by the Company of a further notice and a
further opinion of counsel for such holder to the effect stated in
subsection (1) above or until registration of such Restricted Securities
under the Securities Act and applicable state securities laws has become
effective.
5.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 5 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities when, in the opinion of
counsel for the Company, such restrictions are no longer required in order to
ensure compliance with the Securities Act. Whenever such restrictions shall
terminate as to any Restricted Securities, the holder thereof shall be entitled
to receive from the Company, without expense (other than transfer taxes, if
any), new securities of like tenor not bearing an applicable restrictive legend.
6. RESERVATION OF STOCK, SHARES FULLY PAID, ETC. The Company will at
all times reserve and keep available, solely for issuance and delivery upon the
exercise of this Warrant, the number of shares of Common Stock (or Other
Securities) from time to time issuable upon the exercise of this Warrant. All
such securities shall be duly authorized and, when issued upon such exercise,
shall be validly issued and, in the case of shares, fully paid and nonassessable
with no liability on the part of the holders thereof. In addition, the Company
covenants to use reasonable best efforts to ensure that any shares of Common
Stock issuable upon the exercise of this Warrant are registered in accordance
with the terms and conditions of
5
<PAGE>
that certain Investor Rights Agreement dated of even date herewith and
pursuant to an effective registration statement under the Securities Act. If the
shares of Common Stock (or Other Securities) issuable upon the exercise of this
Warrant are not registered for resale pursuant to an effective registration
statement under the Securities Act, the Company shall be under no obligation to
issue such securities unless the holder of this Warrant presents satisfactory
evidence to the Company that (a) such holder is, at the time of exercise of this
Warrant, an "accredited investor," as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act, or (b) such shares of Common
Stock (or Other Securities) may be issued to such holder pursuant to another
available exemption from the registration requirements of the Securities Act.
7. OWNERSHIP TRANSFER AND SUBSTITUTION OF WARRANTS.
7.1 OWNERSHIP OF WARRANTS. The Company may treat the Person in whose
name this Warrant is registered on the register kept at the principal office of
the Company as the owner and holder thereof for all purposes, notwithstanding
any notice to the contrary, except that, if and when this Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer thereof as the owner of such Warrant for all purposes, notwithstanding
any notice to the contrary. This Warrant, if properly assigned, may be exercised
by a new holder without first having a new Warrant issued.
7.2 OFFICE; TRANSFER AND EXCHANGE. The Company will maintain its
principal office in Reno, Nevada or at such other location as it designates in a
written notice delivered to each registered holder of this Warrant prior to any
change of such location, and all notices, presentations and demands in respect
of this Warrant may be made upon it at such location. The Company may designate
from time to time by notice to the registered holder of this Warrant an office
or agency of the Company where such notices, presentations and demands in
respect of this Warrant may be made in lieu of the Company's principal office.
Upon any surrender of this Warrant, properly endorsed, for registration of
transfer or for exchange at the principal office of the Company or the office of
the Company maintained pursuant to this Section 7.2, the Company at its expense
will (subject to compliance with Section 5, if applicable) execute and deliver
to or upon the order of the holder thereof a new Warrant or Warrants of like
tenor, in the name of such holder or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock called for on the
face or faces of the Warrant or Warrants so surrendered.
7.3 REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant (which may be a written statement as to such loss, theft, destruction or
mutilation) and (a) in the case of such loss, theft or destruction of any
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount, or (b) in the case of any such mutilation, upon surrender of
such Warrant for cancellation at the office of the Company maintained pursuant
to Section 7.2 or the principal office of the Company, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
6
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8. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or any
other day on which U.S. Federal Reserve member banks are not open for business
in New York, New York.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"COMPANY" shall have the meaning specified in the opening paragraphs
of this Warrant, including any corporation that shall succeed to or assume the
obligations of the Company hereunder in compliance with Section 2.2.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"MARKET PRICE" shall mean, per share of Common Stock that the holders
of this Warrant shall be entitled to receive upon exercise hereof, on any date
specified herein, (a) the closing price per share of Common Stock on the Nasdaq
SmallCap Market or such other principal automated quotation system or national
securities exchange on which the Common Stock is then quoted or listed, as
reported in The Wall Street Journal, or (b) if (a) is inapplicable, a price per
share thereof equal to the fair value thereof determined in good faith by a
resolution of the Board of Directors of the Company as of a date that is within
15 days of the date as of which the determination is to be made.
"OTHER SECURITIES" shall mean any stock (other than Common Stock) and
other securities of the Company or any other Person (corporate or otherwise)
that the holder of this Warrant at any time shall be entitled to receive, or
shall have received, upon the exercise of this Warrant, in lieu of or in
addition to Common Stock, or that at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 2 or otherwise.
"PERSON" shall mean a corporation, an association, a partnership, an
organization or business, an individual, a government or political subdivision
thereof or a governmental agency.
"RESTRICTED SECURITIES" shall mean any (a) Warrant bearing the
applicable legend set forth in Section 5.1, (b) shares of Common Stock or Other
Securities issuable upon exercise of this Warrant that are not registered for
resale pursuant to an effective registration statement under the Securities Act
or (c) shares of Common Stock (or Other Securities) issued subsequent to any
exercise of this Warrant as a dividend or other distribution with respect to, or
resulting from a subdivision of the outstanding shares of Common Stock (or Other
Securities) into a greater number of shares by reclassification, stock splits or
otherwise, or in exchange for or in replacement of the Common Stock (or Other
Securities) issued upon such exercise, that are evidenced by a certificate or
certificates bearing an applicable restrictive legend.
7
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"SECURITIES ACT" shall mean the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"WARRANT" shall have the meaning specified in the opening paragraphs
of this Warrant.
"WARRANT PRICE" shall have the meaning specified in the opening
paragraphs of this Warrant.
9. REMEDIES. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that, to the extent permitted by
applicable law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
10. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in
this Warrant shall be construed as conferring upon any holder hereof any rights
as a stockholder of the Company or as imposing any obligation on such holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
11. NOTICES. All notices and other communications provided for herein
shall be delivered or mailed by first class mail, postage prepaid, addressed (a)
if to eBay at 2145 Hamilton Avenue, San Jose, CA 95125, Attention: Michael R.
Jacobson, (b) if to any other holder of this Warrant, at the registered address
of such holder as set forth in the register kept by the Company, or (c) if to
the Company, at its principal office, 6490 South McCarran Boulevard, Suite D-28,
Reno, Nevada 89509, or at the address of such other principal office of the
Company as the Company shall have furnished to each holder of this Warrant in
writing; provided, however, that the exercise of any Warrant shall be effective
in the manner provided in Section 1.
12. MISCELLANEOUS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. Any provision of this Warrant that shall be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the Company
waives any provision of law that shall render any provision hereof prohibited or
unenforceable in any respect. This Warrant shall be governed by the substantive
laws of the State of Nevada without reference to the choice of law rules
thereof. The headings of this Warrant are inserted for convenience only and
shall not be deemed to constitute a part hereof.
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13. EXPIRATION. Subject to the provisions in Section 1.1, the right
to exercise this Warrant shall expire at 5:00 p.m., New York City time, on the
date set forth on the first page hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
exercised by its officer thereunto duly authorized as of the date first written
above.
HOMESEEKERS.COM, INCORPORATED
By: /s/ Greg Costley
------------------------------
Name: Greg Costley
-----------------------------
Title: CEO
-----------------------------
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FORM OF SUBSCRIPTION
THE EXERCISE OF THIS WARRANT IS SUBJECT TO, AND SHALL ONLY BE
EFFECTIVE UPON, SATISFACTION OF ANY CONDITIONS SET FORTH IN SECTION 6 OF THIS
WARRANT AND ANY APPLICABLE REGULATORY FILING REQUIREMENTS.
[To be executed only upon exercise of Warrant]
To HOMESEEKERS.COM, INCORPORATED
The undersigned registered holder of the attached Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder, _______
(1) shares of Common Stock of HOMESEEKERS.COM, INCORPORATED, and herewith
makes payment as follows (check as applicable): / / certified or official
bank check in the amount of $_________; / / wire transfer in the amount of
$_________; and/or / / cancellation of _______ shares of Common Stock
otherwise issuable under the Warrant. The undersigned requests that the
certificates for such shares be issued in the name of, and delivered to
____________________________, whose address is
___________________________________________________________________.
Dated: _____________
-----------------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of Warrant)
-----------------------------------------------
(Street Address)
-----------------------------------------------
(City) (State) (Zip Code)
------------------
(1) Insert here the number of shares called for on the face of this
Warrant (or in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any adjustment
for additional Common Stock or any other stock or other securities or property
or cash that, pursuant to the adjustment provisions of this Warrant, may be
delivered upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion of
the Warrant, to the holder surrendering the Warrant.
