Common Stock Purchase Warrant - Audible Inc. and Robin WIlliams
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. W-1 150,000 Shares
AUDIBLE, INC.
1. Issuance. This Warrant is issued to Robin Williams ("Williams") by
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Audible, Inc., a Delaware corporation (hereinafter with its successors called
the "Company").
2. Exercise Price; Number of Shares. Subject to the terms and conditions
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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 150,000 shares of fully paid and nonassessable shares
of the Company's Common Stock, $0.01 par value (the "Common Stock") for $0.01
per share (the "Exercise Price"). This Warrant is fully exercisable.
3. Payment of Exercise Price; Cashless Exercise.
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(a) The Exercise 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 Exercise 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 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
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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 banking 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
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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
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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
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June 17, 2009, and shall be void thereafter.
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7. Reserved Shares; Valid Issuance; Restricted Stock.
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(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 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
Rule 144 - is available with respect thereto.
8. Adjustment of Number of Shares; Exercise Price; Nature of Securities
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Issuable Upon Exercise of Warrants.
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(a) Exercise Price; Adjustment of Number of Shares. The Exercise
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Price set forth in Section 2 above 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.
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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.
(c) Stock Splits, Stock Dividends and Reverse Stock Splits. If at any
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time after the date hereof, the Company shall subdivide its outstanding shares
of Common Stock into a greater
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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
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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.
9. Fractional Shares. In no event shall any fractional share of Common
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Stock be issued upon any exercise of this Warrant. If, 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 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:
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(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
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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.
11. Amendment. The terms of this Warrant may be amended, modified or waived
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only with the written consent of the Company and the holder of this Warrant.
12. Governing Law. The provisions and terms of this Warrant shall be
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governed by and construed in accordance with the internal laws of the State of
New Jersey.
13. Successors and Assigns. This Warrant shall be binding upon the Company's
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successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
14. Business Days. If the last or appointed day for the taking of any action
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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: June 17, 1999 AUDIBLE, INC.
By: /s/ Andrew J. Huffman
___________________________
Andrew J. Huffman
Title: President
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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
_________________________________________________________________
a portion of the within Warrant equal to _____ shares, and does hereby
irrevocably constitute and appoint _______________________ its attorney to
transfer said portion of 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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