Common Stock Subscription Warrant - iBEAM Broadcasting Corp. and BellSouth Corp.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
iBEAM BROADCASTING CORPORATION
COMMON STOCK SUBSCRIPTION WARRANT
May 18, 2000
1. General.
THIS CERTIFIES that, for value received, BELLSOUTH CORPORATION, a Georgia
corporation ("BellSouth"), is entitled to subscribe for and purchase from iBEAM
BROADCASTING CORPORATION, a Delaware corporation (the "Corporation"), at any
time or from time to time during the period commencing on the date which is
twelve (12) months after the date of this Warrant and ending on the date which
is thirty six (36) months after the date of this Warrant (the "Exercise
Period"), on the terms and subject to the provisions hereinafter set forth that
number of shares of fully paid, non-assessable common stock, $.0001 par value,
of the Corporation calculated as follows (the "Warrant Shares"):
Number of Warrant Shares =[*]
IPO Price = The price per share to the public of the Corporation's common
stock pursuant to an underwritten initial public offering (the "IPO"). If
the IPO does not occur by August 1, 2000, the IPO Price shall mean the
mid-point of the filing range of the Corporation's last S-1 filing with
the SEC as of the date of the exercise of this Warrant.
2. Exercise of Warrant.
This Warrant is exercisable at a price per Warrant Share equal to the IPO
Price (the "Warrant Price"). Subject to the provisions of Section 3 of this
Warrant, the rights represented by this Warrant may be exercised by the holder
hereof, in whole or in part, at any time or from time to time during the
Exercise Period, by the surrender of this Warrant (properly endorsed) and the
delivery of a duly executed Notice of Subscription (in the form of Schedule 2)
at the office of the Corporation at 645 Almanor Avenue, Suite 100, Sunnyvale, CA
94086, or at such other agency or office of the Corporation in the United States
of America as the Corporation may designate by notice in writing to the holder
hereof at the address of such holder appearing on the books of the Corporation,
and by payment (either in cash, by check, by cancellation of
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* Confidential material redacted and filed separately with the Commission.
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indebtedness and/or in shares of capital stock of the Corporation valued at Fair
Market Value (as hereinafter defined) on the date of such exercise) to the
Corporation of the Warrant Price for each Warrant Share being purchased. In the
event of the exercise of the rights represented by this Warrant, a certificate
or certificates for the Warrant Shares so purchased, registered in the name of
the holder, and if this Warrant shall not have been exercised for all of the
Warrant Shares and the Exercise Period has not then expired, a new Warrant,
registered in the name of the holder hereof, of like tenor to this Warrant,
shall be delivered to the holder hereof within a reasonable time, not exceeding
ten (10) days, after the rights represented by this Warrant shall have been so
exercised. The person in whose name any certificate for Warrant Shares is issued
upon exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant was
surrendered and payment of the Exercise Price and any applicable taxes was made,
irrespective of the date of delivery of such certificate, except that, if the
date of such surrender and payment is a date when the stock transfer books of
the Corporation are closed, such person shall be deemed to have become the
holder of such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
3. Vesting.
Notwithstanding any provision in this Warrant to the contrary, BellSouth
shall have the right to exercise or exchange this Warrant only to the extent to
which the Warrant Shares have vested. As of the date of this Warrant, none of
the Warrant Shares are vested. The Warrant Shares shall vest in accordance with
the following:
a. Definitions. The following terms shall have the meanings set
forth below for the purposes of this Agreement:
(i) "Broadband Subscribers" shall be calculated as follows:
(A) each ADSL subscriber shall count as one Broadband Subscriber; (B) each
dedicated T-1 connection (or T-1 equivalent based on maximum rated circuit
capacity for other dedicated connections) shall count as fifty (50) Broadband
Subscribers; and (C) every five dial subscribers shall count as one Broadband
Subscriber. For purposes of the foregoing, the term "subscriber" means a person
or entity that is connected to (or, for dial subscribers, normally served by)
BST's Internet Services network in such Market such that they are available to
be served with content provided by the Corporation through equipment installed
or to be installed in a Facility located in that Market.
(ii) "BST" means BellSouth Telecommunications, Inc., a
wholly-owned subsidiary of BellSouth and a Georgia corporation. References to
BST herein shall also include any other BellSouth affiliate which succeeds to
BST's interests or responsibilities under the Linking Agreement, in whole or in
part, as permitted thereunder.
(iii) "Expiration Date" means as to any particular Warrant
Shares, the date on which BellSouth's right to exercise this Warrant as to such
Warrant Shares expires.
(iv) "Facility" means the BellSouth Internet Services facility
at which the Corporation's equipment is installed and operated pursuant to the
Linking Agreement.
(v) "Linking Agreement" means the Internet Linking and Content
Storage/Distribution Agreement of even date herewith between the Corporation and
BST.
(vi) "Market" -means for each city referred to in this
Section, its respective LATA for the named city.
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PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
(vii) "NEBS Compliant" means compliant with the requirements
for Level 3 as set forth in the Network Equipment Building System (NEBS) Generic
Equipment Requirements (GR-63-CORE), Issue 1, October 1995 or related or
successor documentation as commonly used in the telco industry with respect to
central office equipment. For the purposes of this Agreement, the Corporation's
equipment to be located in a Facility shall be deemed to be NEBS Compliant as
long as it is housed in a cabinet/enclosure which is NEBS Compliant, even though
the individual components of such equipment within such cabinet may not be NEBS
Compliant; provided that, where reasonably available, the Corporation shall use
equipment which is compliant with at least Level 1 NEBS in such cabinets.
(viii) "Rollout Date" for each Market means the date which is
nine (9) months after the date on which the Corporation delivers NEBS Compliant
equipment for installation by BST in the initial Facility in the relevant Market
pursuant to the Linking Agreement. Once the actual Rollout Date has been
established, the parties will confirm the exact date for the Rollout Date in an
amendment to this Warrant to be executed by both parties.
(ix) "Subscriber Target Date" means the date one (1) year
after the date on which the Corporation delivers NEBS Compliant equipment for
installation by BST in the initial Facility-in the Atlanta Market pursuant to
the Linking Agreement. Once the actual Subscriber Target Date has been
established, the parties will confirm the exact date for the Subscriber Target
Date in an amendment to this Warrant to be executed by both parties.
b. Atlanta Market. [*] of the Warrant Shares shall vest upon the
later of (i) the date that BST accomplishes a Complete Installation (as defined
in Schedule 3fb)(i)) in the Atlanta Market, and (ii) the date that BST achieves
the Minimum Subscriber Base (as defined in Schedule 3(b)(ii)) in the Atlanta
Market. Subject to the provisions of Section 3(f), if the Complete Installation
requirement for the Atlanta Market is not satisfied by the Rollout Date for the
Atlanta Market, all Warrant Shares related to the Atlanta Market shall be deemed
to have expired and BellSouth shall have no right to exercise this Warrant with
respect to such Warrant Shares. If the Minimum Subscriber Base requirement for
the Atlanta Market is not achieved by the Subscriber Target Date, all Warrant
Shares related to the Atlanta Market shall expire and BellSouth shall have no
right to exercise this Warrant with respect to such Warrant Shares.
c. South Florida Market. [*] of the Warrant Shares shall vest upon
the later of (i) the date that BST accomplishes a Complete Installation in the
South Florida Market, and (ii) the date that BST achieves the Minimum Subscriber
Base in the South Florida Market. Subject to the provisions of Section 3(f), if
the Complete Installation requirement for the South Florida Market is not
satisfied by the Rollout Date for the South Florida Market, all Warrant Shares
related to the South Florida Market shall be deemed to have expired and
BellSouth shall have no right to exercise this Warrant with respect to such
Warrant Shares. If the Minimum Subscriber Base requirement for the South Florida
Market is not achieved by the Subscriber Target Date, all Warrant Shares related
to the South Florida Market shall expire and BellSouth shall have no right to
exercise this Warrant with respect to such Warrant Shares.
d. New Orleans Market. [*] of the Warrant Shares shall vest upon the
later of (i) the date that BST accomplishes a Complete Installation in the New
Orleans Market, and (ii) the date that BST achieves the Minimum Subscriber Base
in the New Orleans Market. Subject to the provisions of Section 3(f), if the
Complete Installation requirement for the New Orleans Market is not satisfied by
the Rollout Date for the New Orleans Market, all Warrant Shares related to the
New Orleans Market shall be deemed to have expired and BellSouth shall have no
right to exercise this Warrant with respect to such Warrant Shares. If the
Minimum Subscriber Base requirement for the New Orleans Market is not achieved
by the Subscriber Target
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* Confidential material redacted and filed separately with the Commission.
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PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Date, all Warrant Shares related to the New Orleans Market shall expire and
BellSouth shall have no right to exercise this Warrant with respect to such
Warrant Shares.
e. Other Markets. For each Other Market, up to a maximum of [*]
Other Markets, [*] of the Warrant Shares shall vest upon the later of (i) the
date that BST accomplishes a Complete Installation in such Other Market, and
(ii) the date that BST achieves the Minimum Subscriber Base in such Other
Market. Subject to the provisions of Section 3(f), if the Complete Installation
requirement for an Other Market is not satisfied by the Rollout Date for such
Other Market, all Warrant Shares related to such Other Market shall be deemed to
have expired and BellSouth shall have no right to exercise this Warrant with
respect to such Warrant Shares. If the Minimum Subscriber Base requirement for
an Other Market is not achieved by the Subscriber Target Date, all Warrant
Shares related to such Other Market shall expire and BellSouth shall have no
right to exercise this Warrant with respect to such Warrant Shares. The term
"Other Market" shall mean any of the following cities:
[*]
f. Intervening Circumstances.
(i) If BST is unable to accomplish a Complete Installation for
a particular Market by the Rollout Date for such Market due solely to
circumstances which are reasonably beyond BST's control but which are reasonably
within the Corporation's control (including without limitation the Corporation's
failure to provide BST with NEBS Compliant equipment), the vesting date (and the
Expiration Date) for such Warrant Shares shall be extended to the date that BST
accomplishes a Complete Installation for such Market; provided that (A) BST in
good faith uses its best efforts to accomplish such Complete Installation within
a reasonable time period, and does accomplish such Complete Installation no
later than the Rollout Date or the date six (6) months after the causes of such
delay which are reasonably within the Corporation's control are removed,
corrected, or overcome by the Corporation (whichever is later), and (B) BST
achieves the Minimum Subscriber Base requirement for such Market by the
Subscriber Target Date.
(ii) If BST has not been able to accomplish a Complete
Installation for a particular Market by the date sixteen (16) months after the
effective date of this Agreement due solely to circumstances which are
reasonably beyond BST's control but which are reasonably within the
Corporation's control (including without limitation the Corporation's failure to
provide BST with NEBS Compliant equipment), then the Warrant Shares related to
such Market shall vest on the date sixteen (16) months after the effective date
of this Agreement, provided that BST achieves the Minimum Subscriber Base
requirement for such Market by the Subscriber Target Date.
(iii) Notwithstanding any provision in this Warrant to the
contrary, including without limitation the provisions of Section 3(f)(i)-(ii),
if BST is unable to accomplish a Complete Installation for a particular Market
by the Rollout Date for such Market due solely to a Force Majeure Event, the
vesting date and Expiration Date for the Warrant Shares related to such Market
shall not be extended pursuant to Section 3(f)(i)-(ii) or otherwise, and this
Warrant shall be deemed to have expired as of the Rollout Date for such Market
with respect to such Warrant Shares. For purposes of this Section 3(f)(iii), the
term "Force Majeure Event" shall mean flood, fire, labor unrest, war, terrorism,
cyber attack (e.g., hacking, denial of service attack, etc.), or act of God.
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* Confidential material redacted and filed separately with the Commission.
4
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
g. Aggregate Minimum Subscriber Base. Notwithstanding any provision
in this Warrant to the contrary, the Minimum Subscriber Base in each Market
shall be deemed to have been .met on the date that BST first achieves the
Aggregate Minimum Subscriber Base (as defined in Schedule 3(b)(ii)).
4. Exchange of Warrant.
a. In addition to and independent of the rights of the holder of
this Warrant set forth in Sections 2 and 3, the holder hereof may at any time or
from time to time during the Exercise Period elect to receive, without the
payment by the holder of any additional consideration, that number of Warrant
Shares determined as hereinafter provided in this Section 4 by the surrender of
this Warrant or any portion hereof to the Corporation, accompanied by an
executed Notice of Exchange in substantially the form thereof attached hereto as
Schedule 4(a) (the "Net Issue Election"). Thereupon, the Corporation shall issue
to the holder hereof such number of fully paid and nonassessable Warrant Shares
as is computed using the following formula:
X=Y (A-B)
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A
where X = the number of Warrant Shares to be issued to the holder pursuant to
this Section 4.
Y = the number of Warrant Shares covered by this Warrant in respect of
which the Net Issue Election is made pursuant to this Section 4.
A = the Fair Market Value (as hereinafter defined) of one Warrant Share
determined at the time the Net Issue Election is made pursuant to
this Section 4 (the "Determination Date").
B = the Warrant Price in effect under this Warrant at the time the Net
Issue Election is made pursuant to this Section 4.
b. For purposes of the above calculation, "Fair Market Value" of one
Warrant Share as of the Determination Date shall mean:
(i) (A) if the Common Stock of the Corporation is not then
traded on a national securities exchange, the average of the closing prices
quoted on the National Association of Securities Dealers, Inc. Automated
Quotation National Market System, if applicable, or the average of the last bid
and asked prices of the Common Stock quoted in the over-the-counter-market, or
(B) if the Common Stock is then traded on a national securities exchange, the
average of the high and low prices of the Common Stock listed on the principal
national securities exchange on which the Common Stock is so traded, in each
case for the twenty (20) trading days immediately preceding the Determination
Date or, if such date is not a business day on which shares are traded, the next
immediately preceding trading day; and
(ii) in all other circumstances, the fair market value per
share of Common Stock as determined by a nationally recognized independent
investment banking firm jointly selected by the Corporation and the holder of
this Warrant or, if such selection cannot be made within five business days
after delivery of the Notice of Exchange referred to above, by a nationally
recognized independent investment banking firm selected by the American
Arbitration Association.
c. The closing of any Warrant Exchange shall take place at the
offices of the Corporation on the date specified in the Notice of Exchange (the
"Exchange Date"), which shall be not less than five and not more than 30 days
after the delivery of such Notice. At such closing, the Corporation shall
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PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
issue and deliver to the holder or its designee a certificate or certificates
for the Warrant Shares to be issued upon such Warrant Exchange, registered in
the name of the holder or such designee, and if such Warrant Exchange shall not
have been for all Warrant Shares and the Exercise Period has not then expired, a
new Warrant, registered in the name of the holder, of like tenor to this Warrant
for the number of shares still subject to this Warrant following such Warrant
Exchange.
5. Adjustment of Warrant Price.
a. The Warrant Price shall be subject to adjustment from time to
time as follows:
(i) If, at any time during the Exercise Period, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Warrant Price shall be appropriately decreased and the number of shares of
Common Stock issuable upon exercise of this Warrant shall be appropriately
increased, in each case in proportion to such increase in outstanding shares.
(ii) If, at any time during the Exercise Period, the number of
shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for such
combination, the Warrant Price shall be appropriately increased and the number
of shares of Common Stock issuable upon exercise of this Warrant shall be
appropriately decreased, in each case, in proportion to such decrease in
outstanding shares.
b. Whenever the Warrant Price shall be adjusted as provided in this
Section 5 the Corporation shall forthwith file, at the office of the Corporation
or any transfer agent designated by the Corporation for the Common Stock, a
statement, signed by its chief financial officer, showing in detail the facts
requiring such adjustment and the adjusted Warrant Price. The Corporation shall
also cause a copy of such statement to be sent by first-class certified mail,
return receipt requested, postage prepaid, to the holder of this Warrant at its
address appearing on the Corporation's records. Where appropriate, such copy may
be given in advance and may be included as part of a notice required to be
mailed under the provisions set forth immediately below.
c. In the event the Corporation shall take any action of the types
described in this Section 5 or in Section 12, the Corporation shall give notice
to each holder of a Warrant in the manner set forth herein, which notice shall
specify the record date, if any, with respect to any such action and the date on
which such action is to take place. Such notice shall also set forth such facts
with respect thereto as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the date of such notice)
on the Warrant Price then in effect and the number, kind or class of shares or
other securities or property which shall be delivered or purchasable upon the
occurrence of such action or deliverable upon exercise of this Warrant. In the
case of any action which would require the fixing of a record date, the
Corporation shall use reasonable efforts to provide such notice at least twenty
(20) days' prior to the date so fixed, and in case of all other action, the
Corporation shall use reasonable efforts to provide such notice at least thirty
(30) days' prior to the taking of such proposed action. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of any
such action.
6. Adjustment of Warrant Shares.
Upon each adjustment of the Warrant Price as provided in Section 4, the
holder hereof shall-thereafter be entitled to subscribe for and purchase, at the
Warrant Price resulting from such adjustment, the
6
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
number of Warrant Shares equal to the product of (i) the number of Warrant
Shares existing prior to such adjustment and (ii) the quotient obtained by
dividing (A) the Warrant Price existing prior to such adjustment by (B) the new
Warrant Price resulting from such adjustment. No fractional shares of Common
Stock shall be issued as a result of any such adjustment, and any fractional
shares resulting from the computations pursuant to this paragraph shall be
eliminated without consideration.
7. Covenants as to Common Stock.
The Corporation covenants and agrees that all shares of Common Stock that
may be issued upon the exercise of the rights represented by this Warrant, will,
upon issuance, be validly issued, fully paid and non-assessable and free from
all taxes, liens and charges with respect to the issuance thereof. The
Corporation further covenants and agrees that the Corporation will from time to
time take all such action as may be requisite to assure that the stated or par
value per share of Common Stock is at all times equal to or less than the then
effective Warrant Price per share of Common Stock issuable upon exercise of this
Warrant. The Corporation further covenants and agrees that the Corporation will
at all times have authorized and reserved, free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant. If and so long as the Common Stock issuable
upon the exercise of the rights represented by this Warrant is listed on any
national securities exchange, the Corporation will, if permitted by the rules of
such exchange, list and keep listed on such exchange, upon official notice of
issuance, all shares of such capital stock.
8. No Shareholder Rights.
This Warrant shall not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Corporation.
9. Restrictions on Transfer.
The holder of this Warrant acknowledges that neither this Warrant nor the
Warrant Shares have been registered under the Securities Act and the holder of
this Warrant agrees that no sale, transfer, assignment, hypothecation or other
disposition of the Warrant Shares shall be made in the absence of (a) current
registration statement under the Securities Act as to the Warrant Shares and the
registration or qualification of the Warrant Shares under any applicable state
securities laws is then in effect, or (b) an opinion of counsel reasonably
satisfactory to the Corporation to the effect that such registration or
qualification is not required. Each certificate or other instrument for Warrant
Shares issued upon exercise of this Warrant shall, if required under the
Securities Act or the rules promulgated thereunder, be imprinted with a legend
substantially to the foregoing effect.
10. Market Stand-Off Agreement.
The holder hereof hereby agrees that it will enter into a market stand-off
agreement (not to exceed 180 days) as shall be entered into by all other
similarly situated holders of warrants issued by the Corporation under similar
circumstances and shall be bound thereby.
11. No Transfer of Warrant.
This Warrant is non-transferable, in whole or in part, except to a
wholly-owned subsidiary of BellSouth, without the prior written consent of the
Corporation.
7
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
12. Reorganizations, Etc.
In the case of any capital reorganization, any reclassification of the
stock of the Corporation (other than a change in par value or from par value to
no par value or from no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares), or of the
consolidation or merger of the Corporation with or into another corporation
(other than a consolidation or merger in which the Corporation is the continuing
corporation and which does not result in any change in the Common Stock) or of
the sale of all or substantially all the properties and assets of the
Corporation as an entirety to any other corporation, this Warrant shall, after
such reorganization, reclassification, consolidation, merger or sale, be
exercisable for the kind and number of shares of stock or other securities or
property of the Corporation or of the corporation resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold to which such holder would have been entitled if he had
held the Common Stock issuable upon the exercise hereof immediately prior to
such reorganization, reclassification, consolidation, merger or sale. In any
such reorganization or other action or transaction described above, appropriate
provision shall be made with respect to the rights and interests of the holder
of this Warrant to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Warrant Price and of the number of
shares purchasable and receivable upon the exercise of this Warrant) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise hereof. The
Corporation will not effect any such consolidation, merger or sale unless, prior
to the consummation thereof, the successor corporation or entity (if other than
the Corporation) resulting from such transaction or the corporation or entity
purchasing such assets shall assume by written instrument, executed and mailed
or delivered to the registered holder hereof at the last address of such holder
appearing on the books of the Corporation, the obligation to deliver to such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to purchase.
13. Lost, Stolen, Mutilated or Destroyed Warrant.
If this Warrant is lost, stolen, mutilated or destroyed, the Corporation
may, on such terms as to indemnity or otherwise as it may in its discretion
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Corporation, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
14. Modification and Waiver.
This Warrant and any provision hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against which
enforcement of the same is sought.
15. Notices.
All notices, advices and communications to be given or otherwise made to
any party to this Agreement shall be deemed to be sufficient if contained in a
written instrument delivered in person or by telecopier or duly sent by first
class registered or certified mail, return receipt requested, postage prepaid,
or by overnight courier, or by electronic mail, with a copy thereof to be sent
by mail (as aforesaid) within 24 hours of such electronic mail, addressed to
such party at the address set forth below or at such other address as may
hereafter be designated in writing by the addressee to the addresser listing all
parties:
8
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
If to the Corporation, to:
iBEAM Broadcasting Corporation
645 Almanor Avenue, Suite 100
Sunnyvale, CA 94086 Attention: General Counsel
Telecopier: (408) 524-0567
e-mail address: DSroka@iBEAM.com
and
If to BellSouth, to:
BellSouth Corporation
1155 Peachtree Street, N.E., Suite 1929
Atlanta, GA 30309-3610
Attention: Executive Director - Corporate Development
Telecopier: (404) 249-4740
Or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such deliver, (ii) in the case of nationally-recognized overnight courier, on
the next business day after the date when sent, and (iii) in the case of
mailing, on the third business day following that on which the piece of mail
containing such communication is deposited in the U.S. Mail. As used in this
Section 15, "business day" shall mean any day other than a day on which banking
institutions in the State of New York are legally closed for business.
16. Binding Effect on Successors; Survival.
This Warrant shall be binding upon any corporation succeeding the
Corporation by merger, consolidation or acquisition of all or substantially all
of the Corporation's assets. All of the obligations of the Corporation relating
to the Common Stock issuable upon the exercise of this Warrant shall survive the
exercise and termination of this Warrant. All of the covenants and agreements of
the Corporation shall inure to the benefit of the successors of BellSouth.
17. Descriptive Headings and Governing Law.
The description headings of the several sections and paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this
Warrant. This Warrant shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of
Delaware.
18. No Fractional Shares.
No fractional shares shall be issued upon exercise of this Warrant. The
Corporation shall, in lieu of issuing any fractional share, pay the holder
entitled to such fraction a sum in cash equal to such fraction-multiplied by the
then Fair Market Value of one Warrant Share.
19. Cross Default.
Notwithstanding any provision in this Warrant to the contrary, this
Warrant shall not be exercisable in whole or in part at any time that BST is in
material default of its obligations under the Linking Agreement.
9
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Once any such breach is cured, this Warrant shall again be exercisable. No such
suspension of the exerciseability of this Warrant shall extend the Exercise
Period.
20. Publicity.
Neither party will make any public announcement with respect to the
business arrangement contemplated by this Agreement without the other party's
prior written consent, unless in the opinion of such party's legal counsel
(after consultation with counsel for the other party), such announcement is
required by applicable law.
[Rest of page intentionally left blank]
10
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
executed by their duly authorized officers on the date first above written.
iBEAM BROADCASTING CORPORATION
By._________________________________________
Name:
Title:
BELLSOUTH CORPORATION
By._________________________________________
Name:
Title:
11
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Schedule 2
FORM OF SUBSCRIPTION
The undersigned, the holder of the Warrant, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, __________ shares of Common Stock, $.0001 par value of iBEAM
Broadcasting Corporation and herewith makes payment of $_________ therefor, and
requests that the certificates for such shares be issued in the name of and
delivered to, __________________ whose address is
____________________________________.
Dated: ___________
____________________________________________
(Signature)
____________________________________________
(Address)
12
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Schedule 3(b)(i)
For purposes of this Warrant, the term "Complete Installation" at a
particular Facility shall mean the completion of the activation of such Facility
under the terms of the Linking Agreement, enabling the Corporation's serving of
Content through servers at such Facility to end users of the Internet over the
BellSouth Internet Services network. If the parties agree on an alternative
network architecture that results in a Market (a "Remote Market") being served
with the Corporation's Content from a BellSouth Facility located in another
Market or LATA with substantially comparable performance characteristics as
mutually agreed, then a Complete Installation in such Remote Market shall be
deemed to have occurred upon the implementation of such alternative network
serving arrangement which enables the Corporation's serving of Content to end
users of the Internet in such Remote Market over the BellSouth-Internet Services
network.
13
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Schedule 3(b)(ii)
1. The term "Minimum Subscriber Base" means:
a. with respect to the Atlanta Market, the South Florida Market, and the
New Orleans Market, [*] Broadband Subscribers per each such Market; and
b. with respect to all Other Markets, 10,000 Broadband Subscribers per
each such Market.
2. The term "Aggregate Minimum Subscriber Base" means a total [*] Broadband
Subscribers across all Markets in which BST has accomplished a Complete
Installation, subject to Section 3(f).
--------
* Confidential material redacted and filed separately with the Commission.
14
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.
<PAGE>
Schedule 4(a)
Notice of Exchange
(To be executed by the Holder in order to exchange the Warrant.)
The undersigned hereby irrevocably elects to exchange this Warrant into
__________ shares (the foregoing number constituting the number of Warrant
Shares to be issued pursuant this Warrant) of common stock, $.0001 par value of
iBEAM Broadcasting Corporation, minus any shares to be deducted from the
foregoing number in accordance with the terms of this Warrant, according to the
conditions thereof. The undersigned desires to consummate such exchange on
________________.
Dated: ___________
BELLSOUTH
By:_________________________________________
Title:______________________________________
15
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR
DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES AND iBEAM EXCEPT PURSUANT
TO A WRITTEN AGREEMENT.