Common Stock Purchase Warrant - Audible Inc. and National Public Radio Inc.
THIS WARRANT AND THE OTHER SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER
IS IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE
LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
APPLICABLE LAWS IS AVAILABLE WITH RESPECT THERETO.
COMMON STOCK PURCHASE WARRANT
Warrant No. N-1 [_] Number of Shares Set Forth on Schedule A Hereto [_] [_]
AUDIBLE, INC.
1. Issuance. This Warrant is issued to National Public Radio, Inc.
("NPR") by Audible, Inc., a Delaware corporation (hereinafter with its
successors called the "Company").
2. Purchase Price; Number of Shares. Subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the "Holder"),
commencing on the date hereof, is entitled upon surrender of this Warrant with
the subscription form annexed hereto duly executed, at the office of the Company
or such other office as the Company shall notify the Holder in writing, to
purchase from the Company at the price per share (the "Purchase Price") set
forth on Schedule A hereto such number of fully paid and nonassessable shares of
the Company's Common Stock, $0.01 par value (the "Common Stock") as is set forth
on Schedule A hereto (the "Warrant Shares"). This Warrant is fully vested.
3. Payment of Purchase Price; Cashless Exercise.
(a) The Purchase Price may be paid in cash, by check or wire transfer in
immediately available funds, or as provided in 3(b) below.
(b) At any time during the term of this Warrant, the Holder may also elect
to exercise this Warrant (the "Conversion Right") with respect to a particular
number of Warrant Shares (the "Converted Warrant Shares"), and the Company shall
deliver to the Holder (without payment by the Holder of the Purchase Price in
cash or any other consideration (other than the surrender of rights to receive
Warrant Shares hereunder)) that number of shares of Common Stock equal to the
quotient obtained by dividing: (x) the difference between (i) the product of
(A) the Current Market Price of a share of Common Stock multiplied by (B) the
number of Converted Warrant
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Shares and (ii) the product of (A) the Exercise Price multiplied by (B) the
number of the Converted Warrant Shares, in each case as of the Conversion Date
(as defined in Section 3(c) below)), by (y) the Current Market Price of a share
of Common Stock on the Conversion Date. No fractional Warrant Shares shall be
issuable upon exercise of the Conversion Right, and if the number of Warrant
Shares to be issued determined in accordance with the following formula is other
than a whole number, the Company shall pay to the Holder of this Warrant an
amount in cash equal to the Current Market Price of the resulting fractional
Warrant Share on the Conversion Date.
(c) The Conversion Right may be exercised by the Holder by the surrender of
this Warrant as provided in Section 3(b), together with a written statement
specifying that the Holder thereby intends to exercise the Conversion Right and
indicating the number of Converted Warrant Shares which are covered by the
exercise of the Warrant. Such conversion shall be effective upon receipt by the
Corporation of this Warrant, together with the aforesaid written statement, or
on such later date as is specified therein (the "Conversion Date"). The
Corporation shall issue to the Holder as of the Conversion Date a certificate
for the Warrant Shares issuable upon exercise of the Conversion Right and, if
applicable, a new warrant of like tenor evidencing the balance of the Warrant
Shares remaining subject to this Warrant.
(d) The term "Current Market Price" for the Common Stock as of a specified
date shall mean: (i) if the Common Stock is publicly traded on such date, the
average closing price per share over the preceding 10 trading days as reported
on the principal stock exchange or quotation system on which the Common Stock is
listed or quoted; or (ii) if the Common Stock is not publicly traded on such
date, the Board of Directors of the Company shall determine Current Market Price
in its reasonable good faith judgment. The foregoing notwithstanding, if Holder
advises the Board of Directors in writing that Holder disagrees with such
determination, then the Company and Holder shall promptly agree upon a reputable
investment backing firm to undertake such valuation. If the valuation of such
investment banking firm is greater than that determined by the Board of
Directors, then all fees and expenses of such investment banking firm shall be
paid by the Company. In all other circumstances, such fees and expenses shall
be paid by Holder.
4. Partial Exercise. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
5. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
6. Expiration Date. This Warrant shall expire at the close of business on
May 20, 2003, and shall be void thereafter.
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7. Reserved Shares; Valid Issuance; Restricted Stock.
(a) The Company covenants that it will at all times from and after the date
hereof reserve and keep available such number of its authorized shares of Common
Stock, free from all preemptive or similar rights therein, as will be sufficient
to permit the exercise of this Warrant in full. The Company further covenants
that such shares as may be issued pursuant to the exercise of this Warrant will,
upon issuance, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof.
(b) The Warrant Shares are "restricted securities" as defined in Rule 144
of the Securities Act ("Rule 144"). The Warrant Shares issued upon exercise or
conversion of this Warrant have not been registered under the Securities Act of
1933 (the "Securities Act), as amended, or any applicable state securities laws.
The Warrant Shares may not be sold or transferred unless such sale or transfer
is in accordance with the registration requirements of the Securities Act and
applicable laws or some other exemption from the registration requirements of
the Securities Act and applicable laws - including a sale under Securities Act
Rule 144 - is available with respect thereto.
8. Adjustment of Number of Shares; Exercise Price; Nature of Securities
Issuable Upon Exercise of Warrants.
(a) Exercise Price; Adjustment of Number of Shares. The Exercise Price set
forth in Schedule A hereto and the number of shares purchasable hereunder shall
be subject to adjustment from time to time as hereinafter provided.
(b) Reorganization, Reclassification, Consolidation, Merger or Sale. If
any capital reorganization or reclassification of the capital stock of the
Company or any consolidation or merger of the Company with another entity, or
the sale of all or substantially all of the Company's assets to another person
or entity (collectively referred to as a "Transaction") shall be effected in
such a way that holders of Common Stock shall be entitled to receive stock,
securities, cash or assets with respect to or in exchange for Common Stock,
then, as a condition of such Transaction, reasonable, lawful and adequate
provisions shall be made whereby the Holder of this Warrant shall thereafter
have the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant, upon exercise of this Warrant and in lieu
of the Warrant Shares immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby, such number, amount and like kind
of shares of stock, securities, cash or assets as may be issued or payable
pursuant to the terms of the Transaction with respect to or in exchange for the
number of shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby as if such shares
were outstanding immediately prior to the Transaction, and in any such case
appropriate provision shall be made with respect to the rights and interest of
the holders to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Exercise Price and of the number
of Warrant Shares purchasable and receivable upon the exercise of this Warrant)
shall thereafter be applicable, as nearly as may be practicable, in relation to
any shares of stock or securities thereafter deliverable upon the exercise
hereof.
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(c) Stock Splits, Stock Dividends and Reverse Stock Splits. If at any time
after the date hereof, the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, or shall declare and pay any stock
dividend with respect to its outstanding stock that has the effect of increasing
the number of outstanding shares of Common Stock, the Exercise Price in effect
immediately prior to such subdivision or stock dividend shall be proportionately
reduced and the number of Warrant Shares purchasable pursuant to this Warrant
immediately prior to such subdivision or stock dividend shall be proportionately
increased, and conversely, in case at any time after the date hereof, the
Company shall combine its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
purchasable upon the exercise of this Warrant immediately prior to such
combination shall be proportionately reduced.
(d) Dissolution, Liquidation or Wind-Up. In case the Company shall, at any
time prior to the exercise of this Warrant, dissolve, liquidate or wind up its
affairs, the Holder hereof shall be entitled, upon the exercise of this Warrant,
to receive, in lieu of the Warrant Shares which the Holder would have been
entitled to receive, the same kind and amount of assets as would have been
issued, distributed or paid to such Holder upon any such dissolution,
liquidation or winding up with respect to such Warrant Shares, had such holder
hereof been the holder of record of the Warrant Shares receivable upon the
exercise of this Warrant on the record date for the determination of those
persons entitled to receive any such liquidating distribution.
(c) Accountant's Certificate. In each case of an adjustment in the
Exercise Price, number of Warrant Shares or other stock, securities or property
receivable upon the exercise of this Warrant, the Company shall compute, and
upon the Holder's request shall at the Company's expense cause independent
public accountants of recognized standing selected by the Company and reasonably
acceptable to the Holder to certify such computation, such adjustment in
accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment and showing in detail the facts upon which such adjustment
is based, including a statement of (i) the number of shares of Common Stock of
each class outstanding or deemed to be outstanding, (ii) the adjusted Exercise
Price and (iii) the number of Warrant Shares issuable upon exercise of this
Warrant. The Company will forthwith mail a copy of each such certificate to the
Holder hereof. In the event that the Holder disputes such adjustment, the
Holder shall be entitled to select an additional firm of independent certified
public accountants of national standing and paid for by the Holder to certify
such adjustment and the Company and the Holder shall use their good faith best
efforts to agree on such adjustment based on the reports of the two accounting
firms. In the event that the Company and the Holder are still unable to reach
agreement as to such adjustment, the Company and the Holder agree to submit such
determination to binding arbitration. Upon determination of such adjustment,
the Board of Directors shall forthwith make the adjustments described therein.
9. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. 1f upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 9,
be entitled to receive a fractional share of
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Common Stock, then the Company shall issue the next higher number of full shares
of Common Stock, issuing a full share with respect to such fractional share.
10. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the Company, or
sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
12. Rule 144 Requirements. After the closing of the Company's
initial public offering of shares of its Common Stock pursuant to an effective
registration statement, and with a view to making available to the Holder the
benefits of Rule 144 promulgated under the Securities Act or any other similar
rule or regulation of the SEC that may be promulgated at any time to permit the
Holder to sell securities of the Company to the public without registration
("Rule l44"), the Company shall
(a) comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information
about the Company;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities
Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) furnish to the Holder so long as the Holder owns this
Warrant, promptly upon request, (i) a written statement by
the Company that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90) days
after the effective date of the first
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registration statement filed by the Company), the Securities
Act, and the Securities Exchange Act of 1934 (at any time
after it has become subject to such reporting requirements),
(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 to permit the Holder to sell such
securities without registration.
13. Amendment. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder of this
Warrant.
14. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
New Jersey.
15. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
16. Business Days. If the last or appointed day for the taking of
any action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday, then such action may be taken or right
may be exercised on the next succeeding day which is not a Saturday or Sunday or
such a legal holiday.
Original Issue Date: October 8, 1999 AUDIBLE, INC.
By: /s/ Andrew J. Huffman
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Andrew J. Huffman
Title: President
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SCHEDULE A
The Holder shall be entitled to exercise this Warrant for shares of Common
Stock as follows:
(i) In the event of the closing of the Company's initial public offering of
shares of its Common Stock pursuant to an effective registration statement (the
"IPO") within six months of the date hereof, the Holder shall be entitled to
purchase ten thousand (10,000) shares of Common Stock at a "Purchase Price"
equal to 85% of the Company's initial per share "price to the public" in the IPO
as set forth on the cover page of the final prospectus for the IPO.
(ii) In the event that the Company has not closed an IPO prior to six months
of the date hereof, the Holder shall be entitled to purchase ten thousand
(10,000) shares of Common Stock at a "Purchase Price" of $5.00 per share.
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Subscription
To: ____________________________ Date: ______________________
The undersigned hereby subscribes for ___________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
___________________________
Signature
___________________________
Name for Registration
___________________________
Mailing Address
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Assignment
For value received ______________________________ hereby sells,
assigns and transfers unto _______________________________________
_________________________________________________________________
Please print or typewrite name and address of Assignee
_________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_________________ its attorney to transfer the within Warrant on the books of
the within named company with full power of substitution on the premises.
Dated:_____________________
_________________________
In the Presence of:
__________________________
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